Free Response - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 03-CV-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, KIM DEMPEWOLF, RYAN BRADLEY, MARY, SANDRA, AARON, JASON and CHARLES Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION TO GRANTING OF DEFENDANTS' MOTION TO COMPEL NOTARIZED RELEASES ______________________________________________________________________________ COME NOW the Defendants, CMI, Kim Dempewolf, Marye Deming and Jason Coolidge, by and through counsel, and hereby submit the following Response to Plaintiff's Objection to Granting of Defendants' Motion to Compel Notarized Releases: I. BACKGROUND AND SUMMARY OF RESPONSE 1. On November 22, 2005, Defendants filed a Motion to Compel Notarized Releases

from Plaintiff. As noted in Defendants' Motion, Defendants propounded requests for production of signed releases on August 3, 2005. While Plaintiff did provide signed releases for Martel Medical and for Arapahoe County Detention Facility, Arapahoe County Detention Facility only accepts

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notarized releases. On December 6, 2005, the Court ordered that Plaintiff provide executed and notarized releases for Arkansas Valley Correctional Facility and Arapahoe County Detention Facility. Pursuant to the Court's Order, Defendants promptly provided another set of releases to be signed by Plaintiff. See Exhibit A, Defendants' Letter to Plaintiff of December 7, 2005. Despite the Court's Order that Plaintiff provide signed and notarized releases within ten (10) days of the Court's Order, and that failure to do so may result in sanctions, Plaintiff has yet to comply with the Court's Order and instead filed the instant objection to the Court's Order. 2. Plaintiff essentially states in his objection that medical records from Arkansas Valley

Correctional Facility and Arapahoe County Detention Facility may not be relevant to his claimed medical condition in this case and that some medical records may be privileged. Defendants submit that Plaintiff's objection should be rejected in its entirety. First, to the extent Plaintiff is asserting a privilege, it should be deemed waived as Plaintiff has failed to provide a privilege log as required under Fed. R. Civ. P. 26(b)(5). Second, the scope of discovery is broad such that Defendants should be allowed to discover Plaintiff's medical records irrespective of whether they may be admissible at trial. Finally, Plaintiff has put his medical condition directly at issue such that he has waived any privilege with respect to the medical records which are the subject to the releases at issue. 3. Plaintiff claims that he had an adverse reaction after he was "forced" to take

Antabuse, a medication used to deter the alcohol use, while he was a resident of Centennial Community Transition Center ("CCTC"). Without access to Plaintiff's records from Arapahoe County Detention Facility (where Plaintiff was incarcerated within days of taking Antabuse) and the Arkansas Valley Correctional Facility (where Plaintiff is currently incarcerated), Defendants have -2-

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no way to investigate the veracity of Plaintiff's claims and are without the necessary records to be reviewed by a medical expert. Defendants note that their expert disclosure deadline is January 20, 2006. It is vital that Defendants obtain medical records so that they can be timely reviewed by their expert. At this point, due to Plaintiff's failure to comply with the Court's Order, it may be necessary for Defendants to request another extension of time to designate experts, further delaying this case. 4. Defendants request that Plaintiff be required to immediately provide signed and

notarized releases as directed by the Court in its December 6, 2005 Order. Defendants further request that the Court consider sanctioning Plaintiff for his non-compliance with the Court's Order. II. PLAINTIFF FAILED TO PROVIDE A PRIVILEGE LOG, WAIVING ANY CLAIM OF PRIVILEGE 5. Fed. R. Civ. P. 26(b)(5) provides as follows: When a party withholds information otherwise discoverable under these rules by claiming that it is privileged..., the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the applicability of the privilege or protection.

A "blanket" claim of privilege is insufficient. Epling v. UCB Films, Inc., 2000 U.S. Dist. LEXIS 21818 *54 (D. Kan. August 7, 2000). A party's failure to provide a privilege log may be deemed a waiver of the privilege asserted. Haid v. Wal-Mart Stores, Inc., 2001 U.S. Dist. LEXIS 10564 *3-4 (D. Kan. June 25, 2001)(citing Dorf & Stanton Communications, Inc. v. Molson Breweries, 100 F.3d 919, 923 (Fed. Cir. 1960), cert. Denied, 520 U.S. 1275, 138 L. Ed.2d 213, 117 S. Ct. 2455 (1997)).

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6. 1984):

As stated in Peak, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.

A party seeking to assert [a] privilege must make a clear showing that it applies. Failure to do so is not excused because the document is later shown to be one which would have been privileged if a timely showing had been made. Even though it does not seem seriously disputed that the privilege would have attached if the objection had been timely made and adequately asserted, that such a showing had not been made when the trial court was called upon to make its ruling defeats the privilege. It is not enough that a document would have been privileged if an adequate and timely showing had been made. The applicability of the privilege turns on the adequacy and timeliness of the showing as well as on the nature of the document.

7.

Plaintiff failed to provide any privilege log at all. Plaintiff simply asserts that some

of his medical records may be privileged. Plaintiff does not provide any specific examples of what medical records, if any, are irrelevant to his claims in this case. Defendants submit that Plaintiff has failed to meet his burden to establish the applicability of any privilege with respect to the medical records which are the subject of the medical releases at issue. III. PLAINTIFF'S MEDICAL RECORDS ARE DISCOVERABLE AND PLAINTIFF HAS IMPLICITLY WAIVED ANY CLAIM OF PRIVILEGE BY INITIATING THIS LAWSUIT 8. The scope of discovery is broad. The Federal Rules of Civil Procedure provide

that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b)(1). Courts broadly construe relevancy at the discovery stage. Caldwell v. Life Ins. Co. of N. Am., 165 F.R.D. 633, 638 (D. Kan.

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1996). "[A] request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action." Id. (emphasis added). 9. Plaintiff alleges that while he was a resident at Centennial Community Transition

Center ("CCTC") he was "forced" to take Anatabuse (a medication used to deter the alcohol use) and that the Antabuse caused him "...severe headachs, sharp pains in his chest and abdominal region, dizziness, dihydration [sic], fatiqueness [sic], anxiety and severe sweating along with diaharrea [sic] and mood changes from taking the anibuse [sic]" Plaintiff's Response to Defendants' Request For Discovery, Exhibit B, Response No. 7. Plaintiff's medical records from Arapahoe County Detention Facility, where Plaintiff was sent soon after he received Antabuse at CCTC, as well as his medical records from the Department of Corrections, where Plaintiff is currently incarcerated, are entirely relevant as to Plaintiff's claimed damages in this case, which Plaintiff has put directly at issue in this case. Even if some of Plaintiff's medical records may be arguably irrelevant during trial, they are certainly discoverable at this stage in the litigation. 10. In a medical malpractice case, medical records concerning the alleged injuries are

relevant to a claim or defense, and the physician/patient privilege is implicitly waived as relates to the alleged injuries by the filing of the suit. C.R.S. 13-90-107(1)(d)(I) (2005). It would be inconsistent to allow a plaintiff to initiate a claim and then use privilege to prevent the opposing party from obtaining and presenting any conflicting evidence. Bond v. District Court, 682 P. 2d 33, 38 (Colo. 1984).

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11.

A party may establish waiver by showing that the privilege holder has injected his or

her physical or mental condition into the case as a basis of a claim or as an affirmative defense. Clark v. District Court, 668 P.2d 3, 10 (Colo. 1983). While relevance alone cannot be the test, Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (Colo. 2004), there is a limited waiver of privilege as to those records relating to the cause and extent of the injuries and damages allegedly sustained as a result of the defendant's claimed negligence. Alcon v. Spicer, 113 P.3d 735 (Colo. 2005). Moreover, even if a plaintiff argues that there should not be a waiver, as stated in Alcon, the plaintiff is required "...to expend the bulk of the burden of the effort by compiling the privilege log." Id. at 472. 12. In this case, Plaintiff has put his medical condition at issue. Plaintiff has provided

only a single release in this case- for Martel Medical, the facility where Plaintiff was medically cleared to begin taking Antabuse. Defendants have not be able to obtain any other medical records due to Plaintiff's failure to comply with the Court's Order to provide notarized medical releases. 13. Plaintiff suggests in his Objection that the Court review Plaintiff's medical records

in camera to determine what medical records are relevant to Plaintiff's claims. As noted above, it is Plaintiff's burden, not the Court's or Defendants' burden, to establish the applicability of a privilege with respect to his medical records. It appears Plaintiff has not obtained his own medical records before initiating this lawsuit and would like to put the onus on the Court and Defendants to determine what medical records are relevant to his claims in this case. Plaintiff's request for in camera inspection should be rejected, and any assertion of privilege with respect to these medical records be deemed waived. -6-

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IV.

CONCLUSION Plaintiff has failed to comply with the Court's December 6, 2005 Order. While Plaintiff

asserts that some of his medical records may not be relevant to his claims in this case and may be privileged, he has failed to provide a privilege log as required under Fed. R. Civ. P. 26(b)(5). Defendants submit that Plaintiff's blanket objection should be rejected and deemed a waiver as to claim of privilege. Moreover, as Plaintiff's claims in this case relate to an alleged adverse reaction to a medication, he has put his medical condition entirely at issue in this case, and Defendants are entitled to discover any medical documentation that may relate to his claims, certainly at the discovery phase of this litigation. Defendants note that the Court has already ordered Plaintiff to provide medical releases and clearly indicated that the Court would consider sanctions if Plaintiff failed to comply. It has been over five months since Defendants propounded Requests for Production of medical releases from Plaintiff. Plaintiff has failed to comply with the Court's Order, and has further delayed Defendants' ability to defend Plaintiff's claims in this case. Defendants respectfully request that the Court consider sanctions for Plaintiff's obstreperous objection to the Court's Order. Respectfully submitted this 11th day of January, 2006. s/ Steven J. Wienczkowski Steven J. Wienczkowski PRYOR JOHNSON CARNEY KARR NIXON , P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 (303) 773-3500 E-Mail: [email protected] ATTORNEYS FOR CMI, KIM DEMPEWOLF, MARYE DEMING AND JASON COOLIDGE -7-

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CERTIFICATE OF SERVICE I hereby certify that on the 11th day of January, 2006, a true and correct copy of the foregoing was filed via electronic filing, as well as placed in the U.S. Mail, postage prepaid thereon, addressed to: Oloyea D. Wallin Reg. #111389 ARKANSAS VALLEY CORRECTIONAL FACILITY P.O. Box 1000 Crowley, Colorado 81034 Billy-George Hertzke, Esq. SENTER , GOLDFARB & RICE , LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290

s/Laura Buckingham Laura Buckingham, on behalf of Pryor Johnson Carney Karr Nixon, P.C.

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