United States District Court, D. Nebraska
HOPE K. WILLIAMS as Independent Administrator of the Estate of her Father, OLIN B. KICKLIGHTER, JR., Plaintiff,
MARTIN FEENEY, Individually and FEENEY XPRESS TRANSPORT; BARY FRANKLIN, individually, and RANCHERO, LLC, Defendants.
MEMORANDUM AND ORDER
LYLE E. STROM, Senior District Judge.
This matter comes before the Court on two related motions. First, defendant Rachero L.L.C. ("Ranchero") filed a motion (Filing No. 110) to compel discovery of mental health records belonging to the decedent, Olin Kicklighter ("Kicklighter"). Second, all defendants, Ranchero, Feeney Xpress Transport, Inc. ("Xpress"), Martin Feeney ("Feeney"), and Bary Franklin ("Franklin"), move (Filing No. 113) to continue the trial in this matter for six months. The Court finds as follows.
Plaintiff, Hope Williams ("Williams"), is the independent administrator of Kicklighter's estate. Kicklighter died as a result of a multi-vehicle collision involving Franklin and Feeney late in the evening of December 8, 2011. These motions center around Kicklighter's medical records.
Kicklighter was a veteran and received health care treatment at the Sacramento Veteran's Administration Medical Center ("the VA") in California. Around August 27, 2014, the defendants served a notice of intent to subpoena the VA for the production of Kicklighter's medical records. After plaintiff's counsel waived any objection, defendants served the subpoena on the VA September 2, 2014. The VA refused to divulge the records without written consent. Two months later, Williams authorized records from May 1, 2005, through December 31, 2014, and expressly limited consent to exclude psychiatric records.
The records arrived from the VA on February 9, 2015, and included fifteen pages of psychiatric records, contrary to the consent waiver. Ultimately, the parties resolved the dispute concerning those pages, and they were destroyed.
In the interim, the defendants received discovery from another collision Kicklighter had in Alabama. The Alabama Uniform Traffic Crash Report indicated that on June 5, 2010, eighteen months prior to his fatal collision in Nebraska, Kicklighter saw ghosts on the highway. These ghosts directed Kicklighter to stop his vehicle and drive in reverse on the highway. Kicklighter complied with the apparitions and caused a collision. The defendants, wishing to pursue concerns involving Kicklighter's mental health, seek to obtain Kicklighter's VA mental health records. The defendants also seek a six-month extension of the trial date.
Plaintiff's counsel objected to the production of all records in his "possession, custody or control, which deal in any way with the health, whether mental or physical, of Olin B. Kicklighter, Jr." (Filing No. 111-1, at 101). Specifically, counsel objected that the request was overly broad, vague, ambiguous, substantively irrelevant, temporally irrelevant, and protected under the psychotherapist-patient privilege. II. LEGAL STANDARDS
In her objections, the plaintiff cites a recent District of Nebraska case. Filing No. 111-1, at 101 (citing Gering v. Duetsch, No. 7:13CV5009, 2014 WL 7331824 (D. Neb. Dec. 19, 2014)). The following excerpt discusses the legal standards for discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Broad discovery is an important tool for the litigant, and so relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Accordingly, relevant information includes any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. However, the proponent of discovery must make some threshold showing of relevance... before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case. Accordingly, once the requesting party meets the threshold relevance burden, the party resisting the discovery has the burden to establish that the requested discovery does not come within the scope of relevance as defined under Rule 26(b)(1)....
Id. at *4 (internal citations and quotations omitted). The Court then went on to discuss the physician-patient privilege as follows:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of his or her physical, mental, or emotional condition among himself or herself, his or her physician, or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.
However, there is no privilege under this rule as to communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense. The purpose behind the patient-litigant exception to the physician-patient privilege is to prevent the patient from making his condition an element of the dispute, and then invoke the privilege to prevent the opposing party from ascertaining the true condition of the patient.
Courts treat the physician-patient privilege and its exception similar to the analysis of a court-ordered mental evaluation under Rule 35. In Nebraska, a routine allegation of negligence in a personal injury action does not put a party's mental condition in ...