Carina Heather Clarke Fairly et al vs Malcolm S Schryer et al

Case Number

21CV00500

Case Type

Hearing Date / Time

Mon, 10/09/2023 - 10:00

Nature of Proceedings

Motion: Order

Tentative Ruling

Carina Heather Fairly, et al. vs. Malcolm S. Schryer, et al. 

Case No. 21CV00500

           

Hearing Date: October 9, 2023                                               

HEARING:              Plaintiffs’ Motion For Order that this Matter Proceed Pursuant to a HIPPA Qualified Stipulated Medical Record Protective Order

                                                           

ATTORNEYS:        For Plaintiffs Carina Heather Fairly and Steven Paul Fairly: Self-Represented

                             For Defendants Malcolm S. Schryer and Diane M. Schryer (Deceased): Erin O. Hallissy, David R. Lang, Daniels, Fine, Israel, Schonbuch & Lebovits, LLP

TENTATIVE RULING:

Plaintiffs’ motion for an order that this matter proceed pursuant to a HIPPA qualified stipulated medical record protective order is denied without prejudice. Plaintiffs may properly bring a motion for protective order, if allowed by statute or other legal authority, as to specific requests or subpoenas.

Background:

The operative pleading in this matter is the first amended complaint (FAC) filed by Carina Heather Fairly (Carina) and Steven Paul Fairly (Steven) (collectively, plaintiffs) on May 26, 2021. (Note: Because parties in this matter share common surnames, the court may refer to the parties, individually, by their first names. No disrespect is intended.) As alleged in plaintiffs’ FAC: On February 19, 2019, defendant Malcolm S. Schryer (Malcolm) was driving his vehicle with his spouse, defendant Diane M. Schryer (Diane), eastbound on State Highway 192 in the far right-hand lane. (FAC, ¶¶ 12, 13.) Malcolm, who was using a handheld device, caused his vehicle to collide with a vehicle driven by Carina who was travelling in the middle lane. (Id. at ¶¶ 12, 14.) Malcolm admitted that the collision was his fault. (Id. at ¶¶ 15, 22.) The collision caused Carina to suffer a concussion and other serious bodily injuries including head, back, neck, shoulders, arms and legs, and spinal damage, nerve damage, and deep tissue damage. (Id. at ¶ 16.) Carina is permanently disabled as a result of the collision. (Id. at ¶ 17.) Steven, who is not alleged to have been injured in the collision, seeks damages for loss of Carina’s support resulting from her permanent injuries and for other non-economic aspects of plaintiffs’ marital relationship. (Id. at ¶ 53.) Malcolm died on October 21, 2020. (Id. at ¶ 4.)

Following the filing of the complaint, Diane also died. On January 30, 2023, Steven’s motion permitting the matter to proceed pursuant to Probate Code section 550 et seq., was granted.

On April 24, 2023, defendants answered plaintiffs’ complaint setting forth a general denial and 11 affirmative defenses.

Defendants admit negligence and the only issues for the trier of fact will be causation and damages. (Hallissy Dec., ¶ 4.)

Plaintiffs now move for an order that this matter proceed pursuant to a HIPPA qualified stipulated medical record protective order. Defendants oppose the motion.

Analysis:

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties. [Citation.] “ ‘The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. [Citation.] The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of ‘ “good cause.” ’ [Citations.]” The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Citation.]” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

“[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Plaintiffs’ “points and authorities” consists of a single paragraph related to health information privacy and a one-page unsworn “declaration” attesting to allegations that defense counsel has misused medical record privacy issues to stall the case, and that on March 17, 2021, medical records were provided to defense counsel. Plaintiffs appears to seek: (1) a stipulated protective order for medical records related only to the subject accident; (2) an order halting defense counsel from “propounding of unreasonably duplicative discovery;” (3) a stipulation of one physical examination of plaintiff pursuant to Code of Civil Procedure section 2032.220, subdivision (a)(1); (4) a stipulation that Steven be allowed to attend the physical examination; (5) a stipulation that discovery shall be concluded by December and shall not occur during the holidays; and (6) that defense counsel be reprimanded for “abusive misconduct and misrepresenting the court words.”

“[P]laintiffs are “ ‘not obligated to sacrifice all privacy to seek redress for a specific (physical,) mental or emotional injury’ ”; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Britts v. Superior Court (1978) 20 Cal.3d 844, 864.) Thus, if any of the medical record sought by defendants relate to any physical or mental condition put in issue by plaintiffs in this lawsuit, they are entitled to them. The discovery is not limited to medical treatment that was necessitated by the subject accident. As Carina alleges in her FAC that she suffered a concussion and other injuries including head, back, neck, shoulders, arms and legs, and spinal damage, nerve damage, and deep tissue damage, defendants are entitled to conduct discovery regarding those claimed injuries including whether any of them were preexisting. It is unclear to the court if Carina is claiming additional injuries that are not included in the complaint. If there are, defendants are entitled to conduct discovery regarding any of those claimed injuries. As there is also a loss of consortium cause of action, defendants are entitled to conduct discovery regarding those claims as well.

Plaintiffs cite to Code of Civil Procedure section 2030.090 as the section under which they bring their motion. That code section relates to interrogatories and provides, in pertinent part: “When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090, subd. (a), italics added.) It is unclear if it is information requested by way of interrogatories for which plaintiffs are seeking a protective order.

To the extent that plaintiffs are seeking a protective order with respect to the actual medical records: “When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.060, subd. (a), italics added.)

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040, italics added.)

Here, the court is unable to assess whether plaintiffs promptly moved for a protective order. While plaintiffs make general references to discussions about  medical records, it does not set forth when the requests were made or in what manner they were made. Further, plaintiffs’ declaration, not signed under penalty of perjury, does not state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. While arguing in broad terms, plaintiffs do not identify a single specific medical record for which they seek a protective order. Without such information, the court cannot weigh fairly the competing needs and interests of parties and has no basis on which to issue a protective order as to the totality of Carina’s medical records.

As plaintiffs do not meet their burden of showing the need for a protective order, the request must be denied.

The court notes that there are currently several motions to compel set for hearing on November 6, 2023, including a motion to compel further responses to requests for production of documents. While the court has not yet considered those motions, it is possible that some of the issues raised by the current motion will be addressed at that time.

As to plaintiffs’ other requested orders, they are either premature or have no basis in the law and must be denied. For example: (1) That there be one medical exam that is not painful or protracted is the general rule with respect to physical examinations. However, under Code of Civil Procedure sections 2032.310 and 2032.320, defendants may, for good cause shown, move for additional examinations. Plaintiffs would have the opportunity to oppose the motions. No such occurrence has taken place. As such, an order on the issue would be premature; (2) An order that Steven be permitted to attend the examination is not supported by any legal authority. Code of Civil Procedure section 2032.510 permits the attorney for the examinee, or that attorney’s representative, to attend and observe a physical examination. Steven is not an attorney and is not the representative of any attorney. He is therefore not authorized to attend; and (3) The discovery cutoff deadline is set by statute. (See Code Civ. Proc., § 2024.020.) Plaintiffs have not provided any good cause, or set forth any legal authority, for setting an earlier cutoff date or for pausing discovery during the holidays.

“Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4^th 975, 984-985.) Plaintiffs have not met their burden and their motion will be denied.