Jane Doe vs W Kiernan O’Callaghan, MD et al

Case Number

23CV00415

Case Type

Hearing Date / Time

Fri, 05/24/2024 - 10:00

Nature of Proceedings

CMC; Motion to Quash

Tentative Ruling

The motion to quash is denied with respect to the subpoena issued to Save Mart Pharmacy, is granted in part as to the subpoena issued to Central Valley Endocrinology, with records produced pursuant to that subpoena limited to the time period from November 11, 2016 to November 11, 2018.

Background: Plaintiff Jane Doe (Doe) filed the current action on January 31, 2023. Her original complaint named as defendants W. Kiernan O’Callaghan, M.D. (O’Callaghan), Sansum Clinic, and Sansum Santa Barbara Medical Clinic, Inc. It alleged causes of action for (1) negligence, (2) premises liability, (3) sexual battery in violation of Civil Code section 1708.5, (4) battery, (5) sexual harassment in violation of Civil Code section 51.9, (6) intentional infliction of emotional distress, (7) violation of the Ralph Act (Civ. Code, § 51.7), (8) gender violence, in violation of Civil Code section 52.4, and (9) fraud, intentional misrepresentation, concealment, and false promise. Each of the causes of action was alleged against all three defendants.

On August 11, 2023, the Court sustained in part and overruled in part the defendants’ demurrer to the complaint. It overruled the demurrers to the fifth cause of action for sexual harassment in violation of Civil Code section 51.7, sixth cause of action for intentional infliction of emotional distress, and ninth cause of action for fraud. It sustained defendants statute of limitations demurrers to the second cause of action for premises liability, fourth cause of action for medical battery, and eight cause of action for gender violence in violation of Civil Coded section 52.4, and sustained the general demurrer to the seventh cause of action for violation of the Ralph Act, all with leave to amend.

Plaintiff filed her First Amended Complaint (FAC) on September 1, 2023. The FAC alleged the same nine causes of action, except that the ninth cause of action was limited to a claim for concealment. The FAC alleged that on November 11, 2018, plaintiff Doe awoke with a sore throat in Hanford, California. After driving to Santa Barbara for the purposes of attending a November 12 appointment, Doe and her niece on November 11 went to the Pesetas Urgent Care. She was escorted to a private, windowless patient room, and given half a gown. She removed the clothing on her upper body, donned the gown with the open back, and sat on the examination table. About 10 minutes later, defendant O’Callaghan entered the room and closed the door. After Doe advised him she had a sore throat with unbearable pain, Dr. O’Callaghan instructed her to get up and walk away from him and then toward him. He had plaintiff touch his nose with one finger and then the other. He walked behind her and had her bend forward from the waist to touch her toes approximately five times. He directed her to sit back on the examination table. He swabbed her throat, and confirmed she had strep throat.

The FAC alleges further that defendant O’Callaghan then “demanded” that plaintiff lay down on the examination table. While standing to her left and leaning over her body, and without warning, he put his bare right hand under her gown and aggressively and forcefully touched, squeezed, rubbed and cupped her left breast for approximately 30 seconds, to the point that his actions caused pain in plaintiff’s breast and caused her to cry out in pain. Defendant asked plaintiff is she was sexually active and used contraceptives. He then leaned further over her body and aggressively and forcefully touched, squeezed, rubbed, and cupped her right breast for about 25-30 seconds, again to the point of causing her pain in her breast. While doing this, defendant was also fondling and groping plaintiff’s sexual organs, and he started breathing harder. By leaning over plaintiff as she laid on the examination table, defendant prevented her from getting off the table. Defendant then proceeded to examine plaintiff’s upper abdomen, asking whether it hurt there as he palpated it. She answered “no” each time. He then lifted her leggings with his left hand, and slid his right hand down her pants. He pushed hard against the lymph nodes along her groin, causing her pain. Using his bare hands on her bare genitals, he fondled her sexual organ, slowly touching the upper part of her vagina on the right and left sides and then touching her right and left lower labia, breathing heavily as he did so. He then removed his hands from underneath her leggings. He directed her to sit on the examination table, prescribed an antibiotic for the strep throat, and left the room.

The FAC alleges that defendant continually yelled and barked his instructions to plaintiff, intimidating her and making her afraid. It alleges that there is no medical reason or purpose for a physician performing an examination for strep throat to touch, squeeze, cup, or rub a female patient’s breast or vagina. Defendant O’Callaghan used his position of authority and took advantage of the coercive environment over plaintiff, who was frozen in placed, unable to move or leave, and was trapped by his intimidating behavior and body position.

Defendants’ demurrers to various portions of the FAC were largely overruled, although the demurrer by the entity defendants to the cause of action for gender violence was sustained with leave to amend. When plaintiff did not amend her pleading, defendants’ answered the FAC on March 25, 2024.

Medical records from plaintiff’s visit to Sansum reveal that the symptoms with which she presented Dr. O’Callaghan included not just the sore throat that was alleged in the complaint, but also year-long symptoms of brain fog, fatigue, and breathing problems. She related a week-long episode of near paralysis approximately a month prior. At the time of the visit, she felt too unsteady to be able to drive, and had a fever along with the sore throat. She related having been treated with radioactive iodine about eight months prior. Her primary care physician had given her a note requesting a physician referral to an endocrinologist in Santa Barbara. Dr. O’Callaghan prescribed a 10-day course of Amoxicillin, directed plaintiff to gargle with salt water and take Ibuprofen for pain. He gave her a patent referral to an endocrinologist, but explained that “it is unlikely that this will be able to be obtained quickly.”

In responses to interrogatories, plaintiff identified the Save Mart Pharmacy in Lemoore, California, as a pharmacy which filled prescription medication on her behalf relating to injuries she claimed was caused by defendants. Plaintiff’s medical records provided to defendants also identified Prem Sahasranam, M.D, from Central Valley Endocrinology.

On January 30, 2024, defendants issued a records subpoena for Central Valley Endocrinology in Walnut, California, seeking all records regarding plaintiff from November 1, 2023 (5 years prior to her visit to Dr. O’Callaghan) to the present. It reflected a production date of February 29, 2024. On February 15, 2024, defendants issued a records subpoena for Save Mart Supermarkets, LLC, seeking all pharmacy records regarding plaintiff from November 1, 2013 to the present. It reflected a production date of March 15, 2024.

By a meet and confer letter dated February 20, 2024, plaintiff’s counsel demanded that defendants withdraw the subpoenas, asserting that plaintiff had not placed her medical or psychiatric condition in issue in the litigation, and that she was only claiming injuries related to the alleged sexual assault. Counsel described the subpoenas as included records unrelated to medical issues and treatment in the current action, to which defendants are not entitled.

On February 23, 2024, counsel briefly spoke with respect to the subpoenas. Plaintiff’s counsel contends that, during the call, she advised defense counsel that plaintiff was not seeking damages for psychiatric injuries, and was only seeking general damages for pain and suffering and emotional distress.

On February 29, 2024, defense counsel responded to plaintiff’s February 20 meet and confer letter, by asserting the broad scope of discovery in California, and defendants entitlement to conduct fundamental discovery with respect to plaintiff’s claimed physical, psychological and emotional injuries that have been placed at issue. Counsel described the subpoenas as seeking treatment records for pre-existing conditions documented by plaintiff at the time of her visit to Dr. O’Callaghan, noting that Sansum’s records indicated that the consultation was for more than the sore throat alleged in the FAC. To the extent that his examination was informed by her reported history and complaints involving endocrine issues, counsel contended that defendants are entitled to conduct reasonable discovery on the issue, including prior treatment records from plaintiff’s endocrinologist.

In an email response on the same date, plaintiff’s counsel confirmed that plaintiff was only seeking general damages associated with the sexual assault, and was not putting her psychiatric condition at issue.

On the same date (February 29, 2024), plaintiff filed the current motion to quash both depositions subpoenas.

Motion: Plaintiff seeks to quash both subpoenas, contending that she has not waived her rights to her medical and psychological records by filing her lawsuit, in that she has not placed at issue either her medical or psychological condition. Rather, she contends she is only seeking general damages for the alleged sexual assault, and in limiting her damages for the alleged sexual assault to general “garden variety” emotional distress damages, has not placed her mental health in issue. Consequently, the records which defendants seek are protected by privilege and by her right to privacy, and she argues that the burden is on the defense to show that the evidence they seek is directly relevant to the claim or defense, citing Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.

Plaintiff questions whether defendants are attempting through their subpoenas to seek improper character evidence, given defense counsel’s contentions that plaintiff’s consultation with Dr. O’Callaghan was not merely for a sore throat, but that she also sought a referral to an endocrinologist, and related other symptoms, including temporary paralysis. Defendants contend further that to the extent Dr. O’Callaghan’s examination was informed by her reported history and complaints involving endocrine issues, defendants are entitled to conduct reasonable discovery on that issue, including prior treatment records from plaintiff’s endocrinologist.

Plaintiff asserts that this is not a medical malpractice case, and plaintiff is not alleging that Dr. O’Callaghan misdiagnosed her, or that his medical treatment fell below the standard of care. The action is based upon his contacts with her breasts and genitals, and her medical complaints at the time of her visit, along with her prior and subsequent medical history, are irrelevant to the case. She concludes that the subpoenas seeking records for all complaints, conditions, or illnesses for five years before the incident and six years afterward is therefore solely to harass, bully, or embarrass her.

Defendants have opposed the motions to quash, contending the records which they seek are within the scope of permissible discovery. She sought a referral from an endocrinologist in Santa Barbara, reporting a week-long episode of paralysis which had occurred one month prior, thyroid issues (including radioactive treatment), changes in thyroid medications, dizziness, brain fog, fatigue, fever, and breathing problems, in addition to the sore throat alleged in her complaint to have formed the basis for her consultation with Dr. O’Callaghan. Defendants contend that to the extent that Dr. O’Callaghan’s physical examination of plaintiff was informed by all of her reported complaints, defendants are entitled to conduct reasonable discovery regarding her medical history.

Defendants deny attempting to seek improper character evidence with respect to plaintiff. Rather, they assert they are entitled to conduct discovery to ascertain whether there is evidence that corresponds to the complaints with which plaintiff reported other than a sore throat. To the extent the information might contradict the version of the events alleged in the FAC, it would not constitute improper character evidence, but could potentially constitute a prior inconsistent statement, or statement contained in medical records. (Evid. Code, §§ 1235, 1271, respectively.)

Defendants assert further that plaintiff has not met her burden on the motion to quash, citing In re Lifschutz (1970) 2 Cal.3d 415, 436, for the proposition that because only the patient, and not the party seeking disclosure, knows both the nature of the ailments for which recovery is sought and the general content of the communications contained in the subpoenaed records, the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue she has tendered to the court.

With respect to the subpoena directed to the pharmacy, defendants contend plaintiff has no protected interest in the pharmacy records, given that in answers to interrogatories, she had identified Save Mart Pharmacy as having filled prescription medication related to the injuries she claimed were caused by defendants. The interest of facilitating truth in legal proceedings, and defendants’ right to a fair trial, must be balanced with plaintiff’s privacy claim. As the party resisting discovery, it is plaintiff’s burden to establish that her privacy rights are impermissibly being invaded by the subpoena. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) Plaintiff has not offered any evidence or argument to show that the pharmacy records may contain confidential information that would not be within the scope of permissible discovery.

Finally, defendants represent that they are willing to enter into a reasonable protective order to prevent dissemination of plaintiff’s medical and pharmacy records beyond the parties to the litigation, and their attorneys and agents, including expert witnesses.

In reply, plaintiff asserts that defendants have not established that the records sought are directly relevant to any claim or defense, or any compelling reason for the release of the records. Her response to Special Interrogatory No. 13 was made, and her FAC was filed, in September 2023, more than five months before she modified the damages she was seeking. Plaintiff contends that defendants “have been on notice since February 23, 2024, that plaintiff is not putting at issue any psychiatric injury or special damages for medical, psychiatric or pharmacy treatment, and is seeking only general damages for physical pain and suffering and emotional distress attributed to being sexually assaulted and battered.” She was only permitted to answer deposition questions about medications she had taken over counsel’s privacy objections, after defense counsel agreed that he would not use her deposition testimony to argue she had waived her privacy objection.

Plaintiff concludes that given that she is not claiming endocrinology issues or psychiatric injuries or economic damages associated with any such issues are injuries, the subpoenaed records are not directly relevant. She contends defendants have not adequately articulated how subpoenas of all of her conditions, illness, or treatments at Central Valley Endocrinology, or her pharmacy records, are directly relevant to the (alleged) sexual assault and sexual battery which occurred on November 11, 2018.

ANALYSIS:  The motion to quash is denied with respect to the subpoena issued to Save Mart Pharmacy, is granted in part as to the subpoena issued to Central Valley Endocrinology, with records produced pursuant to that subpoena limited to the time period from November 11, 2016 to November 11, 2018.

1.         Authority for motion.

Code of Civil Procedure section 1985.3 governs the issuance of a subpoena duces tecum for production of the personal records of a consumer, and includes within its terms the records of a physician, medical clinic, pharmacist and pharmacy. (Code Civ. Proc., § 1985.3, subd. (a)(1). Pursuant to Section 1985.3(g), any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which the subpoena is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. If that is done, no records need be produced except upon the order of the court. (Ibid.)

Code of Civil Procedure section 1987.1, referenced in Section 1985.3, authorizes any party or consumer described in in Section 1985.3 (among others) to move to quash entirely, modify, or direct compliance on any terms or conditions the court shall declare, including protective orders, with any subpoena requiring the production of documents at the taking of a deposition. (Code Civ. Proc., § 1987.1, subds. (a) and (b).) The Court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonably violations of the right of privacy of the person. (Code Civ. Proc., § 1987.1, subd. (a).)

2.         General standards of discoverability related to medical or psychological conditions.

Under California law, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the action, if the matter itself is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlements. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) The standards are applied liberally, and doubt is resolved in favor of permitting discovery. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119.)

Medical or psychological records and information are subject to evidentiary privileges which preclude disclosure of information which falls within the scope of the respective privilege. (See Evid. Code, §§ 994 (physician-patient privilege) & 1010 (psychotherapist-patient privilege).) Each such privilege is subject to a patient litigant exception, which provides that there is no privilege as to a communication relevant to an issue concerning the relevant condition (medical, for physician-patient privilege, or mental or emotional, for psychotherapist-patient privilege) of the patient if such issue has been tendered in litigation by the patient (among others). (See Evid. Code, §§ 996 (patient-litigant exception to the physician-patient privilege) & 1016 (patient-litigant exception to the psychotherapist-patient privilege).

Privilege and privacy are related but distinct concepts, and the right to privacy in such medical or mental condition may also be waived through bringing suit. The California Supreme Court has noted that while there may be an implicit partial waiver of a right to privacy through bringing suit, the scope of that waiver must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of private activities. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) Further, an implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim, and essential to the fair resolution of the lawsuit. (Ibid.) If found to be relevant to the issues of ongoing litigation, whether disclosure is allowed will involve a balancing of the privacy interest against the interests in disclosure of the protected material.

While plaintiff’s motion and the cases cited therein contend that there can be no disclosure of protected information unless there is a compelling state interest justifying discovery, and that the burden is not on the individual to explain why private records sought are irrelevant or not compelling, but rather that the burden is on the party seeking the private information to establish that it is entitled to the information (see, Motion @ p. 6, lines 11-21), that is not the law.

The California Supreme Court in Williams v. Superior Court (2017) 3 Cal.5th 531, 556, held that courts must place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies. Further, what suffices to justify an invasion of a privacy interest varies according to the context, and only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Williams, supra, 35 Cal.5th at p. 556.) Whenever lesser interests are at stake, the strength of the countervailing interest sufficient to warrant disclosure of private information varies according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures. (Ibid.)

In issuing that decision, the Supreme Court expressly disapproved a series of cases holding that a compelling interest must always be shown in order to invade a person’s privacy rights, including Harris v. Superior Court (1992) 3 Cal.App.4th 661, relied upon by plaintiff in this case. (See Williams, supra, 3 Cal.5th at p. 557, fn. 8.)

The California Supreme Court in Lewis v. Superior Court (2017) 3 Cal.5th 561, a decision issued only days after the Williams decision, explained that invasions of interest fundamental to personal autonomy included such things as freedom from involuntary sterilization, or the freedom to pursue consensual familial relationships. (Lewis, supra, 3 Cal.5th at p. 572, citing Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 34.) Where the case involves an obvious invasion of an interest fundamental to personal autonomy, a compelling interest must be present to overcome the vital privacy interest. If, in contrast, the privacy is less central, or in bona fide dispute, general balancing tests are employed. (Ibid.)

In this case, the subpoenas do not seek to invade interests fundamental to personal autonomy. Consequently, no compelling interest need be shown in order to obtain discovery of the information subject to the right of privacy, and an ordinary weighing process is used to determine whether defendants’ interests in disclosure of the information outweigh plaintiff’s interests in maintaining its privacy.

3.         Plaintiff’s contention that the subpoenas must be quashed because she is only seeking “garden variety” emotional distress damages.

One of plaintiff’s primary arguments in support of her motion to quash the records subpoenas is that information related to her mental health need not be disclosed, because although she is claiming seeking damages for emotional distress sustained as a result of the events alleged in her FAC—which would ordinarily place her emotional state in issue in the litigation and subject to discovery—she has advised defendants that she is only seeking “garden variety emotional distress damages,” and that the courts have recognized that psychological records are not made discoverable when only such “garden variety” emotional distress damages are sought, citing Davis v. Superior Court (1992) 7 Cal.App.4th 1008.

Plaintiff does not specifically direct this argument to either the Central Valley Endocrinology subpoena duces tecum, or to the Save Mart Pharmacy subpoena duces tecum, and simply generally makes the argument in support of her motion to quash.

A.        Davis v. Superior Court decision, upon which plaintiff relies in making her claims.

In Davis, supra, the plaintiff suffered personal injuries in a motor vehicle accident, and sought noneconomic damages for pain, suffering, mental suffering and emotional distress. The defendant issued a subpoena duces tecum to the custodian of records of a medical clinic, seeking plaintiff’s treatment records. Plaintiff moved to quash the subpoena and for a protective order. The motion was denied. On appeal, plaintiff contended that the denial of her motion violated her statutory psychotherapist-patient privilege and invaded her constitutional right to privacy.

In determining the level to which plaintiff’s filing of the action acted as a waiver of her right to privacy in her psychological records, the Davis court noted that plaintiff had made no claim for damages for “mental and emotional distress” apart from her claim for damages for pain and suffering associated with the injuries she sustained in the accident. (Davis, supra, 7 Cal.App.4th at p. 1015.) It recognized that an allegation of pain and suffering from a personal injury permitted a party to recover a range of emotional injuries, including for physical pain, fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror and ordeal. It noted that any physical injury is likely to have a mental component in the form of pain, the perception of which will vary among individuals. Thus, in every lawsuit involving personal injuries, a mental component may be said to be at issue in the litigation, but the filing of a personal injury action seeking damages for pain and suffering does not, ipso factor, place mental condition in issue as part of the claim. (Id. at p. 1016.)

Noting further that the burden is on the party seeking constitutionally protected information to establish direct relevance, and that the opposing party had made no effort to limit the request to specific matters directly relevant to petitioner’s pain and suffering from the physical injuries, it found that the request was overbroad in encompassing privileged material not relevant to the lawsuit. It commented that nothing would have prevented the opposing party from seeking records directly relevant to such a claim by a narrowly drawn discovery request, after which the trial court could evaluate the respective interests of the parties and the necessity and appropriate extent of disclosure under appropriate legal standards. (Id. at p. 1017-1018.)

B.        Plaintiff’s allegations of emotional distress damages, and her attempt to limit discovery of any mental health claims.

In her FAC, plaintiff alleged that she had suffered and continued to suffer personal injuries from the batter, including physical injury, great pain of mind and body, pain and suffering, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation and loss of enjoyment of life, and has incurred and will incur expenses for psychological treatment, therapy and counseling. (FAC @ ¶ 67). Those allegations were incorporated by reference into each of her causes of action. (See FAC @ ¶¶ 91, 109, 118, 125, 135, 143, 152, 163, 181.)

Plaintiff’s FAC also alleged—and continues to allege—a cause of action for intentional infliction of emotional distress, in which she alleged that as a direct and proximate result of the actions, omissions, and conduct of each of the defendants, she suffered severe emotional distress, and that defendants’ conduct was a substantial factor in causing those injuries and damages.

Plaintiff’s counsel contends that in a February 23, 2024 conversation, she advised defense counsel that plaintiff was not seeking damages for psychiatric injuries, and “was only seeking general damages for pain and suffering and emotional distress,” and on that basis demanded that he withdraw the subpoenas. (See Declaration of Jennifer Fiore submitted in support of the motion to quash, at ¶ 8.) She further authenticated an email (Declaration at ¶ 6), in which she stated that she was separately confirming “that Jane Doe No. 2 is only seeking general damages associated with the sexual assault (consistent with Davis v. Superior Ct. (1992) 7 Cal.App.4th 1008), and is not putting a psychiatric condition at issue.”

In her reply, plaintiff contends that “[d]efendants have been on notice since February 23, 2024, that Plaintiff is not putting at issue any psychiatric injury or special damages for medical, psychiatric or pharmacy treatment, and is seeking only general damages for physical pain and suffering and emotional distress attributed to being sexually assaulted and battered.” (Reply @ p. 2, lines 18-21.)

At plaintiff’s deposition, taken on March 5, 2024 (after the current motion was filed), counsel again reiterated that plaintiff was making a general damages claim for emotional distress and pain and suffering associated with the assault, consistent with Davis v. Superior Court. (Deposition of Doe at pp. 138:24—139:4). When questioned about the symptoms for which she was seeking damages, plaintiff identified panic attacks, loss of sleep, loss and gain of weight and eating disorders. (Deposition at 139:14-19) At that time, her counsel interrupted her and advised “We’re not putting at issue an eating disorder. Stick to your fear and your anxiety and all that stuff.” (Deposition at 139:20-22.)

Plaintiff then proceeds to agree that she was seeking compensation for depression, nightmares, fear, and sadness. When defense counsel asked her about suicidal ideation, plaintiff’s counsel again interrupted and said “She’s not claiming that.” When defense counsel noted that it had been set forth in responses to interrogatories, plaintiff’s counsel again interrupted and said “She is withdrawing. She is withdrawing that claim.” (Deposition at 140:2-15) When counsel said he wanted to get back to the plaintiff’s response, plaintiff’s counsel interjected again “And I am stating for the record she is withdrawing any claim for a psychiatric injury which would include suicidal ideations.” (Deposition at 140: 17-24) Defense counsel then asked plaintiff if, at one time, she was claiming she had suicidal ideation as a result of the incident with Dr. O’Callaghan, she acknowledged that she thought of it, and entertained that thought at moments. (Deposition at 141:2-11). She then also acknowledged suffering flashbacks about what happened. (Deposition at 141:12-14.)

In response to defense counsel’s comment that plaintiff had stated that she still suffered from psychological and emotional distress related to the sexual assault, battery, and physical injury over which she filed the lawsuit, plaintiff’s counsel stated that was correct as of the time she verified her discovery response, but that she has withdrawn any claim for psychological injury, and is only seeking physical pain, mental suffering, and emotional distress consistent with CACI 3905. (Deposition at 141:15—142:2) Plaintiff did, however, acknowledge that at one time during the lawsuit she had provided responses stating she was still suffering from psychological and emotional distress related to the sexual assault, battery, and physical injury that occurred in connection with the incident with Dr. O’Callaghan. (Deposition at 142:15-25).

Plaintiff has not provided any verified responses to discovery in which she sets forth her alleged limitation of her emotional distress claims, and there is no evidence before the Court that any document which binds plaintiff in any way to her alleged limitation of her emotional distress claims has been provided to defendants or filed with the Court.

C.        Intentional infliction of emotional distress

As noted above, plaintiff has alleged a cause of action for intentional infliction of emotional distress. The elements of intentional infliction of emotional distress include: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

For purposes of a cause of action for intentional infliction of emotional distress, “severe” emotional distress means emotional distress of such a substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)

D.        Plaintiff has not established circumstances which would warrant the limitation of her emotional distress claim, pursuant to Davis v. Superior Court, upon which she relied in attempting to do so.

In the Davis case, the court found that when the only emotional distress being claimed was that sustained as a result of the pain and suffering incurred through a physical injury, a broad demand for all psychological records was overbroad and was not directly relevant to the emotional distress claims actually made by the plaintiff.

Plaintiff has not established the circumstances which would warrant her reliance on Davis in order to justify an order quashing subpoenas seeking records which do or could include references to her mental or psychological condition. First, in the evidence she presented to the court in support of her motion to quash, plaintiff has failed to establish that she suffered any direct physical injury as a result of Dr. O’Callaghan’s alleged conduct, as opposed to physical manifestations of emotional distress which were suffered. As a result, she has not established that this case falls within the rationale provided by the Davis court for limiting discovery of mental or psychological conditions or records. She has by no means established that she is seeking only “garden variety” emotional distress damages, within the meaning of Davis, supra.

Certainly, emotional distress damages are available for some of plaintiff’s causes of action even if no direct physical injury was sustained, e.g., sexual battery, intentional infliction of emotional distress, etc. However, plaintiff has cited no authority that would permit her to limit discovery of her mental or psychological condition where she has only sustained emotional distress damages, which would necessarily include those symptoms which constitute the physical manifestation of emotional distress suffered as a result of the alleged incident.

Further, plaintiff has cited no authority that would permit her to limit discovery of her mental or psychological condition by first claiming in verified responses to discovery that she suffered severe emotional distress symptoms as a result of defendants’ conduct (including suicidal ideation, an eating disorder, etc., as well as fear, anxiety, sleeplessness, weight gain or loss, panic attacks, nightmares, flashbacks, etc.), and then simply pick and choose among the variety of emotional distress symptoms she claimed to have sustained and eliminating those which were more severe from her claimed damages.

Significantly, plaintiff’s FAC alleges, and plaintiff continues to maintain, a cause of action for intentional infliction of emotional distress, contending that she has sustained severe emotional distress as a result of Dr. O’Callaghan’s alleged conduct. As noted above, the required element of such a claim includes the sustaining of “severe” emotional distress, i.e., emotional distress of such a substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. This firmly places plaintiff’s mental and psychological condition in controversy in this action, and her attempts to limit discovery of that condition are patently incompatible with the claims she is making in this action.

Finally, plaintiff has not officially limited her claimed emotional distress damages in any way, through verified responses to discovery, through amendment of her pleadings, or through any verified statement by counsel.

For all of these reasons, the Court will deny the motion to quash to the extent it is based upon an alleged limitation of plaintiffs’ emotional distress damages to only “garden variety” emotional distress damages.

4.         Plaintiff’s claim that the records sought are not directly relevant to her claims, and are therefore not discoverable.

Plaintiff’s motion to quash the subpoenas is based in part on her contention that her actual medical condition has not been placed in issue in this case, since this is not a medical malpractice action raising a claim of failure to diagnose, or mistreatment of plaintiff. Since it is based solely upon the injuries and damages she sustained as a result of the alleged sexual assault, she contends her actual medical condition, including any condition or conditions about which she consulted Dr. O’Callaghan, are irrelevant to this action.

Defendants opposed the motion made on this ground, noting that plaintiff presented herself to Dr. O’Callaghan with much more than the sore throat alleged in the FAC, and in fact sought a referral to an endocrinologist in the Santa Barbara area (specifically, Dr. Berger), and complained of fever and unsteadiness on the date of the examination, provided complaints with respect to her thyroid condition, including that she had received radioactive treatment of her thyroid, that her thyroid medications had been changed, that she felt effects from her thyroid medication (including dizziness). She complained further that she had sustained a week-long period of paralysis about a month prior, that she was suffering other symptoms such as brain fog, fatigue, and problems breathing. The history she provided during the consultation informed the manner in which he examined her. Defendants contend they are entitled to ascertain whether there is evidence that corresponds to the complaints plaintiff reported to Dr. O’Callaghan regarding conditions other than a sore throat.

As noted above, the burden is on plaintiff herein to establish the extent and seriousness of the invasion of her privacy, and against that showing, the Court must weigh the countervailing interests the opposing party identifies. In doing so, the Court conducts an ordinary weighing process, and no compelling interest is required in order for disclosure of the private information to be permitted. (See Williams v. Superior Court, supra, 3 Cal.5th at p. 556.)

The Court agrees with plaintiff that, under the circumstances which are present in this case, her medical condition and records subsequent to the events alleged in the FAC are not relevant either to her claims against defendants, or to any explanation of Dr. O’Callaghan’s conduct at the time of his examination. The Court will therefore not permit discovery of post-incident endocrinological or other medical records from Central Valley Endocrinology.

The Court cannot say the same about the pre-incident records. While they may not be directly relevant to the damages which plaintiff is claiming, they are relevant to the manner in which Dr. O’Callaghan conducted his examination, and could provide corroborative evidence that the actions he took in conducting his examination of plaintiff were warranted given the nature of both the complaints she presented to him, and her existing medical condition at the time of the incident.

Certainly, a full five-years of records predating the incident—which is what defendants’ subpoena to Central Valley Endocrinology seeks—is likely excessive. The Court will therefore limit the records to be produced to those extending back two years from the date of the incident herein, and permit the production of records from November 11, 2016 to November 11, 2018. Depending on what those records reveal, defendants would be permitted to seek additional earlier records, but should be aware that a greater showing of relevance and necessity would be required by this Court in order before it would sanction any such disclosure.