Free Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION No. 1:04-cv-01295-LTB-CBS BETTY GALLEGOS, BERTHA PACHECO, LAURA REYES, MANUELA ARRAS, DAVID ZUBIA, ANTONIO MEZA, JESUS ARENIVAR, ALBA BARRIOS, GLORIA CAMPOS, REYNEL CARMONA, SILVIA CRUZ, JESUS ESTRADA, MARIA ISABEL FLORES, JORGE MARTINEZ, MARIA MCREYNOLD, IGNACIO RANGEL, JUANA ROSALES, MARIA TOVAR, ANTELMO ZUNUN, MARIA ALVA, PETRONA COREAS, MARIA ESTEVEZ, ALFREDO PINEDA, CARMEN LUNA, PATTY LEHMKUHL & LUIS OCHOA Plaintiffs v. SWIFT & COMPANY, Defendant.

FRCP 72(a) OBJECTION TO MAGISTRATE'S ORDER GRANTING MOTION TO PERMIT DEFENDANT TO COUNDUCT EXPARTE INFORMAL INTERVIEWS WITH PLAINTIFF'S TREATING PHYSICIANS

PLAINTIFFS, by and through THE MORRELL LAW OFFICE OBJECT AND IN SUPPORT STATE AS FOLLOWS: I. INTRODUCTION This objection is filed pursuant to FRCP 72(a).

1

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 2 of 9

Given the nature of the claim, Plaintiffs not only voluntarily produced all of their medical records regarding their claimed disabilities in their possession. Plaintiffs also voluntarily provided, without waiting for request, a release that permitted Swift to obtain each plaintiff's medical records. These records, plaintiffs concede, are relevant to establishing that each has a record of a physical impairment that substantially limits one or more major life activities. In every single case, with the exception of Antonio Meza, Plant Physicians authored all such medical records as a result of work related injuries with Greeley Beef packing plant. In all cases, including that of Antonio Meza, Swift has had possession of these medical records prior to litigation in this claim. Defendant now seeks to require Plaintiffs to permit ex parte conferences with their treating physicians without their consent, notice, or participation. The Magistrate has granted this request of Plaintiffs' objections. This request is untimely, overbroad, violates Plaintiffs' medical privacy, and would, as proposed, be impossible to limit to only a proper inquiry. II. ARGUMENT A. The Request is Untimely Swift did not seek to engage in such discovery until February 21, 2006. The parties have been engaged in Discovery since the November 16, 2004 Scheduling Conference. The Discovery cutoff was extended, by agreement of the parties from November 2005 to February 15, 2006.

2

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 3 of 9

Further, the parties have filed cross-motions for summary judgment, and trial is scheduled to begin in four months. Swift's request comes for the first time after 15 months of discovery has elapsed, and six days after the discovery cutoff. Although the court extended the discovery deadline to March 3, 2006 on February 2, 2006 telephone conference it did so only with discovery discussed during the meeting: MR. MORRELL: I understand that the deadline's only being

extended to cover items that we've discussed today. THE COURT: Right. That's exactly right. (See Document 88; Transcript of Conference, Page 45-46) Swift's request is therefore untimely on several accounts: 1. 2. The request falls past the February 3, 2006 deadline. The request, even if it is considered to be subject to the March 3, 2006 deadline is tardy since such conferences could not reasonably be expected to occur within the 10 day gap between the request for signed amended releases and the March 3, 2006 deadline. 3. Swift never raised the subject of its desire to require plaintiffs to permit secret ex parte conferences with treating physicians at the scheduling conference or at the telephone conference on February 2, 2006. B. Physician-Patient Privilege in Federal Courts

3

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 4 of 9

Although Swift is correct that there is no express recognition of the physician-patient privilege under Federal Common law, plaintiffs' medical information is still protected from discovery under Colorado's state law establishing a strong physician-patient privilege. Even in the absence of any recognized physician-patient privilege as a matter of federal common law, courts are directed to look at any privilege recognized by the forum state's law and the policies supporting that privilege to determine if it should be applied in the case before the court. Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981) (comity "impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy"); Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991). The State of Colorado has recognized a physician-patient privilege which protects from discovery information from a physician relating to the treatment of a patient. Colo. Rev. Stat. § 13-90-107. This privilege protects medical information from disclosure. Id. The privilege is designed to "encourage a patient to make full disclosure to her treating physician to promote effective diagnosis and treatment." Clark v. District Court, 668 P.2d 3, 7 (Colo. 1983). In addition, the physicianpatient privilege "enhance(s) the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused" through disclosure of that information. Hoffman v. Bookfield Republic, Inc., 87 P.3d 858, 861 (Colo. 2004). The attorney regulatory counsel has opined

4

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 5 of 9

that an attorney may not engage in ex parte communication with a litigant's medical providers. (See Colorado Ethics Opinion 71). Although a patient can waive the physician-patient privilege, the law is extremely clear that a plaintiff does not waive the privilege simply by bringing a claim for discrimination under the American's with Disabilities Act and its companion state statute. Even when a limited waiver has been implied, Colorado has balanced the interests of both parties by permitting such informal conferences provided that plaintiffs are given reasonable notice and permitted to attend. Samms v. District Court, 908 P.2d 520 (Colo. 1995). The Court should further consider with special care the policies behind the privilege in ruling on whether to permit such involuntary disclosure of medical information. Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 932 (7th Cir. 2004). Following this well-established principle, many federal courts have used state law in federal question cases to protect medical records under the state's physician-patient privilege. See e.g., Addis v. Holy Cross Health System Corp., 1995 WL 429270 (N.D. Ind. 1995); Wilson v. Martin County Hosp. Dist., 149 F.R.D. 553 (1993); Brown v. St. Joseph County, 1992 WL 80806 (N.D. Ind. 1992); Perry v. Wabash County Hosp., 1991 WL 79569 (N.D. Ind. 1991); Wei v. Bodner, 127 F.R.D. 91 (D.N.J. 1989) (See Exhibit B for copies of cases.) These courts have recognized that the important policies behind the state law privilege protecting medical records from disclosure can, and should, be given effect in federal cases. C. Swift has failed to justify that the information sought cannot be obtained in a less intrusive manner.

5

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 6 of 9

It is telling that Swift cites only one 10th Circuit authority supporting its request, Lovato v. Burlington Northern and Santa Fe Railway Co., 200 F.R.D. 448, 450 (D. Colo. 2001). As discussed in conference, Judge Matsch struck the decision and limited the parties to depositions of treating physicians. Federal Courts do recognize some limits to unrestrained disclosure of medical information. Jaffe v. Redmond, 518 U.S. 1 (1996). Although Swift refuses to conduct such conferences consistent with Samms, it provides no explanation of what information would otherwise be unavailable to it on such a basis. Here, like in Addis, the Swift has failed to provide any justification for requesting such conference on an ex parte basis. Addis, 1995 WL 429270 *4 (N.D. Ind. 1995). Finally, even if this Court were to find that the Colorado state law on physician-patient privilege inapplicable to this case, the Court should, nevertheless, deny the Swift's motion as overbroad. Federal Rule of Civil Procedure 26 (c) requires courts to balance the relevance of the evidence sought against the degree to which the discovery will invade the plaintiff's right to privacy.1 Thus, courts have routinely either denied or severely limited a defendant's ability to obtain a plaintiff's medical information. For example, in Gatewood v. Stone Container Corp., 170 F.R.D. 455, 460 (S.D. Iowa 1996), the court restricted defendant's request for all medical records to only those records describing symptoms similar to those claimed by plaintiff, plaintiff's mental health and either chronic or serious

1

Complainant has a constitutional right of privacy in her medical documents. Whalen v. Roe, 429 U.S. 589, 599 (1977).

6

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 7 of 9

physical medical conditions. In addition, the Court required that it review the information in camera before ordering production to ensure that the information was indeed relevant. Id. Courts likewise limit requests to a reasonable time period. See e.g., Fox v. The Gates Corporation, 179 F.R.D. 303, 307-308 (D. Colo. 1998). Here Swift requests an order compelling plaintiffs to allow such discussion with all treating physicians, even those not opining as to restrictions or disability. This is overbroad. Further, without the notice and participation of plaintiffs, there will be no check on the inquiry put to treating physicians that strays to irrelevant area. D. The Americans with Disabilities Act (ADA) discourages such a unilateral

inquiry. Plaintiffs' restrictions, as well as their ability to perform various positions within the Plant are subject to the interactive process envisioned by the ADA. Federal regulations implementing the ADA envision an interactive process that requires participation by both parties. Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998); see also 29 C.F.R. § 1630.2(o)(3). As such, Swift's request to conduct ex parte discussions with its employee's treating physicians is antithetical to its duty to explore disability and accommodation on an interactive basis. IV. CONCLUSION

7

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 8 of 9

Because the Swift has untimely sought a release for such unlimited inquiry, and has failed to establish any inability to obtain information with less intrusive means, Plaintiff respectfully requests that this Court deny the Swift's motion. DATED this 4th of May, 2006.
THE MORRELL LAW OFFICE, LLC

s/ Britton Morrell Britton Morrell THE MORRELL LAW OFFICE, LLC 1305 8th Street Greeley, CO 80631 [email protected]

8

Case 1:04-cv-01295-LTB-CBS

Document 204

Filed 05/04/2006

Page 9 of 9

CERTIFICATE OF MAILING I hereby certify that on the 4th of May, 2006 I served the above OBJECTION by Electronic Filing with the Clerk of the Court using the CM/ECF system which will send such filing to all parties. S/ Britton Morrell

9