Lovato v. Burlington Northern & Santa Fe Railway Co.

200 F.R.D. 448, 50 Fed. R. Serv. 3d 183, 2001 U.S. Dist. LEXIS 7924, 2001 WL 515067
CourtDistrict Court, D. Colorado
DecidedMay 7, 2001
DocketNo. CIV. A. 00-M-2584
StatusPublished
Cited by4 cases

This text of 200 F.R.D. 448 (Lovato v. Burlington Northern & Santa Fe Railway Co.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lovato v. Burlington Northern & Santa Fe Railway Co., 200 F.R.D. 448, 50 Fed. R. Serv. 3d 183, 2001 U.S. Dist. LEXIS 7924, 2001 WL 515067 (D. Colo. 2001).

Opinion

ORDER REGARDING DEFENDANT’S MOTION TO COMPEL MEDICAL RELEASES

SHAFFER, United States Magistrate Judge.

This matter comes before the court on Defendant Burlington Northern Santa Fe Railway Company’s Motion to Compel Medical Releases (filed April 13, 2001). Burlington Northern requests an order requiring plaintiff to execute medical releases permitting defendant to obtain relevant medical records and informally interview plaintiffs treating physicians. Plaintiff Lovato responded in opposition to Burlington Northern’s motion, arguing that informal interviews with his treating physicians would compromise the integrity and confidentiality of his medical records and permit discovery not contemplated by the Federal Rules of Civil Procedure. Plaintiff also has filed (on April 27, 2001) a Motion for Protective Order suggesting conditions that should be imposed in the event informal communications with treating physicians are permitted. The court has reviewed the briefs submitted by the parties and considered the arguments presented by counsel during a hearing on April 23, 2001.

I.

In his complaint, plaintiff asserts a single claim under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq., alleging that he was injured as a result of repetitive motions while performing various duties in the course of his employment'with defendant. Lovato contends that Burlington Northern was negligent, inter alia, by failing to provide plaintiff with safe tools and equipment and by failing to warn plaintiff of the hazards to which he was exposed. The complaint further alleges that as a result of defendant’s negligence, plaintiff has lost wages, incurred medical expenses, suffered “permanent physical injuries to his neck and elbows which has required surgery,” and “suffered pain and emotional distress and will do so in the future, all to his general damage.” (Complaint H 7).

Burlington Northern seeks an order requiring plaintiff to provide medical releases for all “relevant medical records relating to his physical condition.” (Motion to Compel K 2). Defendant also wishes to conduct informal interviews with plaintiffs treating physicians. Plaintiffs counsel indicated that he would provide the requested releases only if the following language was included:

This authorization is signed with the express understanding that such authorization will in no way authorize defendant or it’s counsel to talk directly with any of the health care providers, nor does it authorize defendant, it’s attorneys, agents or representatives to request response to any other written oral requests for opinions, clarification or any other information.

When defense counsel refused to accept this restrictive language, plaintiffs counsel agreed to permit informal interviews conditioned on defendant’s agreement not to depose any physician that was informally interviewed. Not surprisingly, Burlington Northern has rejected this compromise.

II.

The scope of discovery under the Federal Rules of Civil Procedure is well-established. Rule 26(b)(1) of the Federal Rules of Civil Procedures permits discovery of any non-''privileged matter which is relevant to the claim or defense of a party, or “for good cause shown ... any matter relevant to the subject matter involved in the action.” Under Fed.R.Civ.P. 26(a)(1)(B), a party is required to provide a copy of, or a description by category and location, all documents or data compilations in his possession, custody or control that are relevant to disputed facts alleged with particularity in the complaint. A plaintiff also is required to make available [450]*450for inspection and copying the documents “or other evidentiary material, not privileged or protected from disclosure,” upon which his damage computation is based, including “materials bearing on the nature and extent of injuries suffered.” Fed.R.Civ.P. 26(a)(1)(C).

Plaintiffs sole claim for relief arises under a federal statute and, therefore, the issue of physician-patient privilege is governed by federal common law. Fed.R.Evid. 501. The Supreme Court has not recognized the existence of a physician-patient privilege. Whalen v. Roe, 429 U.S. 589, 602, n. 28, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (noting that the “physician-patient privilege is unknown to the common law”). Although plaintiff has directed the court’s attention to 42 U.S.C. § 1320d-2(d)(2), which requires the United States Department of Health and Human Services to adopt rules “to ensure the integrity and confidentiality of [health] information,” that statute cannot be construed to codify a federal physician-patient privilege.1 See United States v. Nixon, 418 U.S. 683, 709-10, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (holding that evidentiary privileges should not be “lightly created nor expansively construed, for they are in derogation of the search for truth”). In the absence of any valid federal privilege, defendant’s right to conduct discovery relating to plaintiffs medical condition is constrained only by the requirement of relevance. Indeed, plaintiff concedes that his medical records are relevant to his claim of permanent physical injury and must be disclosed under Fed.R.Civ.P. 26(a)(1). Information relating to plaintiffs alleged injuries obtained directly from his treating physicians presumably would be equally relevant. Cf Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir.1992) (holding that the district court properly admitted testimony based upon the defense’s ex parte contacts with plaintiffs treating physician).

Plaintiff objects to that portion of defendant’s motion that would permit informal interviews with his treating physicians, on the grounds that ex parte interviews raise potential conflicts with federal law, are not contemplated by the Federal Rules of Civil Procedure, and will make discovery lengthier, more expensive and potentially more contentious. Plaintiff argues that defendant’s contacts with treating physicians should be confined to formal depositions where plaintiffs counsel may be present to prevent disclosure of irrelevant and privileged information. Plaintiff requests an order that would preclude ex parte interviews with his physicians.

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Bluebook (online)
200 F.R.D. 448, 50 Fed. R. Serv. 3d 183, 2001 U.S. Dist. LEXIS 7924, 2001 WL 515067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovato-v-burlington-northern-santa-fe-railway-co-cod-2001.