DOLINGER, UNITED STATES MAGISTRATE JUDGE

1993 WL 14458 Only the Westlaw citation is currently available. Jan. 8, 1993.

Attorneys and Law Firms

Kathleen G. Miller, Herzfeld & Rubin, New York, NY

Eric Witkin, Benetar, Bernstein, Schair & Stein, New York, NY

MEMORANDUM AND ORDER

DOLINGER, UNITED STATES MAGISTRATE JUDGE

Plaintiff asserts claims in this lawsuit against her former employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, as well as under the common law. Among the pendent state-law claims is one for intentional infliction of emotional distress. Plaintiff now seeks by letter application to strike portions of various subpoenas served by defendants.

A. Medical Records

Defendants have subpoenaed seven physicians who have examined or treated plaintiff for a variety of physical conditions. These doctors include a urologist, an internist, a general surgeon, a surgeon, a radiologist, an obstetrical-gynecological surgeon and a dermatologist. Defendants have also subpoenaed the medical records pertaining to her from two former employers and her former college, Iona College. Plaintiff argues that these records are privileged and, in any event, irrelevant since she does not claim any form of physical injury.

Because the federal courts do not recognize a physician-patient privilege, see, e.g., Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir.1992); cf. In re John Doe, 964 F.2d 1325, 1328-29 (2d Cir.1992), whereas New York does honor such a privilege, see, e.g., C.P.L.R. § 4505(a); cf. Young v. U.S. Dep't of Justice, 882 F.2d 633, 640-41 (2d Cir.1989), we must first address the choice-of-law question. The relevant body of law governing the privilege issue is defined by Fed.R.Evid. 501, which provides for application of federal law except that “in civil actions ..., with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness [or] person ... shall be determined in accordance with State law.” In those cases in which the evidence relates to both state and federal claims or defenses, the courts have consistently applied federal law. See, e.g., First Fed. Sav. & Loan Ass'n v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557, 560 (S.D.N.Y.1986) (citing cases).

In this case defendants are seeking medical records because, they say, those records are pertinent to plaintiff's emotional distress allegations. As noted, plaintiff is asserting several state law tort claims, including intentional infliction of emotional distress, and thus the information in dispute, to the extent that it might be relevant, is obviously related to those claims.

In contrast, there is no suggestion here that the medical records are pertinent to plaintiff's Title VII claims. It bears emphasis that under the version of Title VII in effect when plaintiff filed her lawsuit, she could not seek damages for emotional distress, and thus defendants' stated rationale for obtaining the medical records would not apply to that claim. Although Title VII has since been amended, inter alia, to expand the relief available to a plaintiff-including the new availability of compensatory damages (see Section 102(a)(1) of the Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(1))-the preponderant and better reasoned case authority holds that these provisions do not apply to cases filed prior to the effective date of the amendment. See, e.g., Fray v. Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir.1992); accord, Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, 113 S.Ct. 86 (1992); Smith v. Petra Cablevision Corp., 793 F.Supp. 417, 431 (E.D.N.Y.1992). But see Wisdom v. Intrepid Sea-Air Museum, 1992 WL 168224, *7 (S.D.N.Y.1992).

In short, I conclude that New York law governs the privilege issue. Under that law, the medical records are protected except to the extent that plaintiff may have placed their contents into controversy by her claims. See, e.g., Dillenback v. Hess, 73 N.Y.2d 278, 286-87, 539 N.Y.S.2d 707, 713 (1989).

Plaintiff does not contend that she suffered any physical injury as a result of defendants' alleged misconduct, and claims only emotional distress. Nonetheless she does allege that harassing remarks were made to her by her supervisors in connection with surgical procedures that she was then undergoing, and it appears that her gynecological problems, which persisted through 1990, may well have had an impact on her emotional state, wholly apart from the claimed mistreatment by her employers. Accordingly, records relating to the conditions summarized by Dr. Stephen M. Renzin in his report dated July 28, 1992 are sufficiently related to her claims to justify their disclosure.

The balance of plaintiff's medical records have not been shown to be unprotected. The apparent basis for defendants' claim to unrestricted access to those records is their contention that any physical malady might cause emotional distress. This general point may be true, but it scarcely gives defendants a license to rummage through all aspects of the plaintiff's life in search of a possible source of stress or distress, particularly with respect to information that the governing law treats as especially sensitive. The weakness of defendants' position on this point is underscored by the fact that they have not yet retained an expert to guide their labors and are thus left with their counsel's speculations as to what might be pertinent to a psychological analysis. Their argument, not surprisingly, is devoid of any specific justification for their demand, for example, for records of plaintiff's dermatologist and radiologist.

Defendants' alternative argument is that because plaintiff has produced some medical records, she has waived any privilege as to all her records. This does not follow since the records produced might reflect physical conditions that would be related to the claim of emotional distress. Whether this is the case is unknown on the current record, since defendants have simply contented themselves with a generalized claim of waiver.

In any event, even if the waiver argument were upheld, it would not overcome the problem that defendants have made no meaningful showing of relevance for the balance of the records. Because of the recognized sensitivity of medical records, a party seeking their disclosure must make a strong and clear showing of such relevance, and mere generalizations that medical records of unspecified matters might relate in some unspecified way to a claim of emotional distress is obviously inadequate.

In sum, the subpoenas for medical records will be enforced solely with respect to her physical conditions specified in the report of Dr. Renzin. Defendants are free to serve narrower subpoenas or to seek further disclosure on a more substantial record.

B. Subpoenas to Dr. Grieger and Her Employer

Plaintiff will call at trial Dr. Ingrid Zachary Grieger both as her treating psychologist and as an expert on the emotional effects of the claimed mistreatment. Defendants have served subpoenas on Dr. Grieger and on Iona College, where she teaches. Plaintiff seeks a narrowing or quashing of these subpoenas.

Defendants claim that plaintiff lacks standing to object to the breadth of these subpoenas. Although as a general rule a party may not complain about the burden or irrelevance of a discovery subpoena addressed to a non-party, Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir.1975), that is not the case when the subpoena is directed at the party's designated expert witness. Burdensome or otherwise improper discovery demands may serve to discourage experts from participating in lawsuits, to the prejudice of the party who seeks to retain them, and may in any event permit the discovering party “to benefit unduly from the other side's better preparation.” See Fed.R.Civ.P. 26(b)(4)(A), Advisory Committee Note (1970). Indeed, it is to avoid the latter problem that Fed.R.Civ.P. 26(b)(4)(A) limits the extent and nature of discovery requests that may, in the first instance, be directed at the expert. Necessarily, then, when these bounds are allegedly exceeded, the party who retained the expert may press her objections to the requested discovery. See, e.g., In re IBM Peripheral EDP Devices Antitrust Litigation, 77 F.R.D. 39, 40-42 (N.D.Cal.1977) (adjudicating objections by party to discovery from its designated expert).

In this case, although Dr. Grieger has a dual role as a fact and expert witness, the discovery requests in dispute plainly are addressed to her role as an expert. The proper limits of such discovery, absent a showing of extraordinary circumstances, confine defendants to obtaining complete responses to the informational requests in a properly drafted set of interrogatories, production of any documents reflecting Dr. Grieger's discussions with, and assessment and treatment of the plaintiff, production of any unpublished documents (if in her possession or control) relied upon by Dr. Grieger in formulating the opinions that she will testify to at trial, production of any unpublished documents (if in her possession or control) authored by her that discuss the emotional effects of sexual harassment or discrimination or the emotional distress of the types of physical maladies that plaintiff suffered from at or near the time period of the alleged harassment or discrimination, and production of any transcripts of prior testimony by Dr. Grieger (if in her possession or control) concerning the emotional effects of sexual harassment or discrimination. See generally In re Air Crash Disaster at Stapleton Int'l Airport, 720 F.Supp. 1442, 1444-45 (D.Col.1988).

Insofar as defendants seek other writings or materials by Dr. Grieger, they have failed to demonstrate the relevance of these items. See, e.g., In re IBM Peripheral EDP Devices Antitrust Litigation, 77 F.R.D. at 41. Moreover, their effort to obtain evaluations of Dr. Grieger's teaching performance at Iona is plainly inappropriate since neither the facts of this case nor any of the legal issues involve any assessment of Dr. Grieger's abilities as a teacher.

CONCLUSION

For the reasons stated, plaintiff's application for a protective order is granted to the extent indicated, and is otherwise denied.

SO ORDERED.

All Citations

Not Reported in F.Supp., 1993 WL 14458