Defendant Cannot Compel Plaintiff to Disclose Consulting Experts
posted on January 12th, 2009 in HIPPA, Discovery, Rule 26, Experts, Medical Authorization, Medical Release, Protective Order, Privilege by clintWhat if the Defendants begin to overreach in discovery. I use an example from a toxic tort to show how you can use Rule 26.03 and the common law to resist this harrassing discovery that invades privacy beyond reason. Suppose through discovery, the Defendants seek production of (1) the identity and location of the Plaintiffs’ consulting experts who investigated the Defendants’ premises and (2) a medical release prepared by the Defendants. You object to the production of identity and location of your consulting experts who will not be called as witnesses. You prepare your own medical release and send it to the Defendants. The Defendants insist on this discovery. What can you do? Move the Court for a protective order that the discovery not be had.
Prior to the commencement of the lawsuit, you retain the services of two consulting experts in anticipation of toxic tort litigation. These experts are in the business of water wells, pumps, water supply, and filtration. They are licensed by the State of Tennessee to conduct inspections of water wells. They have expertise on the subject of water supply to homes and cabins in East Tennessee. The reason why you retained these consulting experts was to investigate the water supply system at the Defendants’ premises. You are looking for toxins in the Defendants’ premises. The experts’ “charge” includes an inspection of the hot tub and the Jacuzzi. Their charge does not include testifying as witnesses in this case. On the contrary, it is understood from the beginning that the Plaintiffs would retain medical and scientific experts to testify as witnesses at trial.
You needed to know the following: (1) whether the water to the cabin was supplied by a well as opposed to city water, (2) whether the hot tub and Jacuzzi in the cabin are connected to the same water source, (3) whether there were any obvious signs of Legionella bacteria in the tap water, (4) whether there was anything about the construction of the cabin or water supply which would expose other parties to liability, (5) what type of filtration system the hot tub needed, and (6) whether a specimen of the cabin’s water had detectible Legionella.
Before commencement of this lawsuit, you reserved the Defendants’ cabin for a weekend. You paid for the use of the cabin through a member of your firm. During that weekend, the consulting experts went to the Defendants’ cabin to perform their investigation in accordance with their charge. The experts inspected the property and water supply. They videotaped the interior of the cabin. They inspected the hot tub and Jacuzzi. They took a water sample to the Microbac lab to test for the presence of Legionella. Upon completion of their investigation, they contacted Plaintiffs’ counsel and delivered a verbal report of their findings and opinions. The latter was not shared with any third party. Two months later, you file suit against the Defendants.
After commencement of the lawsuit, the Defendants seek the identity of all witnesses with knowledge with of any discoverable matters. This request includes the identity of any experts. Defendants also seek production of all video of the cabin and any testing of the cabin’s water supply. In conformity with the rules of discovery, you send the Defendants the videotape of the cabin and lab results of the specimen from the lab obtained from the consulting experts. These items are discoverable under Rule 26.02. However, you refuse to disclose the identity of these consulting experts under Rule 26.02(4)(B).
A party may not discover the identity of a consulting expert who will not testify at trial. Rule 26.02(4)(B) provides in pertinent part that:
A party may not discover the identity of, facts known by, or opinions held by an expert who has been consulted by another party in anticipation of litigation or preparation for trial and who is not to be called as a witness at trial except as provided in Rule 35.02 or upon a showing that the party seeking discovery cannot obtain facts or opinions on the same subject by other means. TENN. R. CIV. P. 26.02(4)(B).
This rule is clear as a bell. The Court of Appeals acknowledged that Rule 26.02(4)(B) forbids discovery of consulting experts. White v. Vanderbilt, 21 S.W.3d 215, 231 (Tenn.Ct.1999). Discovery rules should not permit less diligent lawyers to benefit from the work of their more diligent opponents. Id (citing Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 357 (Tenn. Ct. App.1985)). The only exception is where the party seeking discovery “cannot obtain facts or opinions on the same subject by other means.” TENN. R. CIV. P. 26.02(4)(B).
The Defendants have made no showing that it “cannot obtain facts or opinions on the same subject by other means.” The facts are already in the Defendants’ possession. They have the video and the lab results. The Defendants have already secured opinions on the same subject. They hire “a premier expert” in disease toxins to offer opinions in the case. They also hire other experts to offer opinions about the specimen of water obtained by the Plaintiffs’ consulting experts. Simply put, there is no basis for invading the Plaintiffs’ qualified privilege relating to the identity of these consulting experts. The Court should grant the your motion for protective order as to the identity of these consulting experts.
The Defendants cannot compel your client to sign an authorization prepared by the Defendants. On advice of counsel, your client seeks to maintain her statutory privileges. You send a modified authorization with her Discovery Responses. The Defendants subsequently demands that your client sign their authorization without limitation. Your client refuses to do this. She refuses to waive every statutory privilege the law confers upon her.
Your argument is that the Defendants’ authorization overreaches. It covers everything from mental health care records to telephone records, from bank records to driving records. The pertinent language of the Defendants’ authorization provides as follows:
I understand that the information in my health record may include information…about behavioral or mental health services and treatment for alcohol and drug abuse.
I also authorize the release of all of my records regarding employment, personnel file, wage, salary, benefits, medical files, potential employment applications, banking, telephone, insurance, financial, education, Social Security and driving incident reports to any employee of Hunter, Smith & Davis, LLP.
The authorization requires health care providers to produce records of any mental health treatment and treatment for drug addiction. However, your client’s mental health is not an issue in this case. She has not pled emotional distress. The only injury in this case is Legionairre’s disease, which is a disease of the lungs. There is no psychological injury at all.
Rule 26.02(1) permits parties to obtain discovery regarding any matter, “not privileged,” which is relevant to the subject matter involved in the pending action. Any records pertaining to your client’s behavioral or mental health services are privileged under Tennessee law under TENN. CODE ANN. §63-22-114 (Professional Counselor/Therapist – Client Privilege), and TENN. CODE ANN. § 63-11-213 (Psychologist – Client Privilege).
Your client asserts those privileges. The filing of a lawsuit does not ipso facto waive your client’s covenant of confidentiality with health care providers. Alsip v. Johnson City Med. Ctr., 2005 WL 1536192 at *11 (Tenn.Ct.App.). The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) protects your client’s right to maintain the confidentiality of her health care records against compulsory disclosure. 45 C.F.R. § 160.203 (2005); Alsip, 2005 WL 1536192 at *10. Furthermore, a defendant may not compel the plaintiff in a personal injury action to sign the defendant’s own medical authorization absent “an extraordinary need.” Wright v. Wasudev, 1994 WL 642785 at *7 (Tenn.Ct.App.).
The Defendants have not presented the requisite “extraordinary need” that warrants compulsory waiver of her legal privileges. It is significant to note that the Wright decision preceded the more stringent protections afforded by HIPPA. It is questionable whether any trial court can force a plaintiff to sign the defendant’s own authorization, when she has already authorized the production of health care records. Therefore, the Defendants cannot compel your client to sign their authorization.
The authorization also seeks a complete waiver of any confidentiality to telephone records, driving records, insurance records, financial records, and banking records. This is not a motor vehicle accident that implicates driving records. Telephone, financial, and banking records are highly sensitive. The Defendants’ authorization put no limits on the scope of your client’s waiver or the use of her records. You should seek a protective order relating to the discovery of the aforementioned records pursuant to Rule 26.03. The Rule provides in pertinent part:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) that the discovery not be had. TENN. R. CIV. P. 26.03.
You contend that the discovery of her telephone records, driving records, insurance records, financial records, and banking records unnecessarily invades her privacy. In determining whether “good cause” has been established for a protective order, it is important that trial courts balance one party’s need for information against the injury that would allegedly result if disclosure is compelled. Ballard v. Herzke, 924 S.W.2d 652, 658-59 (Tenn.1996) (quoting Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV.L.REV. 427, 433-35 (1991)). Factors in the balance weighing against a finding of good cause include: (1) the party benefitting from the protective order is a public entity or official; (2) the information sought to be sealed relates to a matter of public concern; and (3) the information sought to be sealed is relevant to other litigation and sharing it would promote fairness and efficiency. Id. None of the factors weighing against good cause are present here.
On the other hand, factors in the balance weighing in favor of a finding of good cause include: (1) the litigation involves private litigants; (2) the litigation concerns matters of private concern or of little legitimate public interest; and (3) disclosure would result in serious embarrassment or other specific harm. Ballard, 924 S.W.2d at 658-59. This litigation concerns a matter of private concern between private litigants. The embarrassment associated with the solicitation of these records is obvious.
Every plaintiff understands that by initiating a lawsuit she is shedding some privacy. However, no Tennessee law that suggests the plaintiff sheds all of her privacy by filing a lawsuit. Without any limits as to the scope of inquiry or the proper use of those records, your client is left naked. This is precisely why Rule 26.03 is on the books. Therefore, the Court should find that there is good cause for not compelling your client to sign the Defendants’ entire authorization.
You should always find legal manuevers to make the law work against harrassment and invasion of privacy in personal injury litigation, even in medical malpractice cases.