Cindy K. Jorgenson

ORDER

Pending before the Court is resolution of the discovery dispute between the parties. Counsel presented argument to the Court on June 24, 2014. Pursuant to order of the Court, counsel have supplemented their arguments by providing case law support for their positions to the Court's staff. The Court took the matter under advisement and issues its ruling herein.

Supplemental Authority Submitted by Counsel

The Court directed counsel to submit any case law they wished to present to the Court by June 26, 2014. Counsel have each submitted case law in support of their positions. Counsel for Defendant United States of America ("the government"), however, also included argument distinguishing authority submitted by counsel for Plaintiff Shari Lind ("Lind"). As the Court did not direct counsel to respond to opposing counsel's submission and is not providing Lind's attorney a similar opportunity to respond to the government's case law, the Court does not consider defense counsel's argument distinguishing the case cited by Lind in issuing its decision herein.

Discovery of IME Reports

Lind requests the independent medical examination ("IME") reports, with some limitations, authored by Dr. Eskay-Auerbach at the request of the government be disclosed to Lind. Lind asserts the disclosure is appropriate to allow Lind to look into the potential bias of the expert. The government asserts disclosure is precluded by HIPAA, privacy, and privilege.

Health Insurance Portability and Accountability Act of 1996

The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") restricts health care entities from disclosure of "protected health information" ("PHI"). Regulations authorized by the HIPAA, 42 USC § 1320d et seq., prohibit ex parte communications with health care providers regarding patients' medical condition without their consent or a "qualified protective order." 45 CFR § 164.512. HIPAA's privacy provisions allow for disclosure of medical information in the course of administrative or judicial proceedings; however, the Act places certain requirements on both the medical professional providing the information and the party seeking it. See 45 C.F.R. § 164.512(e) (2004). However, this only applies to "covered entities." A covered entity is a health plan, a health care clearinghouse, and "a health care provider who transmits any health information in electronic form in connection with a transaction covered by [the] subchapter. 45 CFR § 160.103.

The government argues that the basis of the IMEs was the providing of information to Dr. Eskay-Auerbach - it appears that, at least as to some cases, the information provided to the doctor was subject to protective orders or confidentiality clauses. In other words, the IMEs in possession of the government contain information pursuant to prior HIPAA protective orders. There is no basis to conclude that defense counsel is no longer bound by those HIPAA protective orders. The Court, therefore, will discuss HIPAA's application.

Another district court has stated:

HIPAA does not create substantive rights that act as a bar on discovery. It merely establishes procedural mechanisms which have been complied with in the instant case. HIPAA regulations is purely procedural in nature and does not create a federal physician-patient or hospital-patient privilege. Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 925-926 (7th Cir.2004). The private information could be redacted. HIPAA does not preclude production where an adequate protective order is in place. 45 C.F.R. § 164.512(e).

Therefore, if the Court determines disclosure of the IMEs is appropriate, HIPAA provides a mechanism to protect the information included within the disclosure.

Privacy Concerns

Federal courts generally recognize a right of privacy that can be raised in response to discovery requests. Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir.1992); DeMasi v. Weiss, 669 F.2d 114, 119-120 (3rd Cir.1982). Unlike a privilege, the right of privacy is not an absolute bar to discovery. Rather, courts balance the need for the information against the claimed privacy right. Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 (C.D.Ca. 1995) (right of privacy may be invaded for litigation purposes). A patient's constitutional right of privacy in receiving medical treatment may be an alternative source of protection to the physician-patient privilege. However, this right is not absolute. Doe v. Southeastern Pennsylvania Transp. Authority (SEPTA), 72 F.3d 1133, 1138 (3rd Cir.1995) (privacy right in patients' prescription records); see Caesar v. Mountanos, 542 F.2d 1064, 1067 (9th Cir. 1976).

Moreover, the government asserts 5 U.S.C. § 552a restricts the disclosure. Lind argues the records covered by the Privacy Act do not apply. However, the documents appear to fall within the definition of a "record" as defined by the Privacy Act. See 5 U.S.C. §§ 552a(4) and (5); 37A Am. Jur. 2d Freedom of Information Acts § 364 (May 2014). Further, although the Privacy Act provides that a disclosure may be made pursuant to a court order, such an order is subject to a determination that the disclosure is appropriate pursuant to Fed.R.Civ.P. 26. See e.g., Ford Motor Co. v. United States, 825 F.Supp. 1081, 1084 n. 3 (CIT 1993).

Therefore, if the Court determines disclosures of the IMEs is appropriate under Fed.R.Civ.P. 26, the Privacy Act provides a means (i.e., issuance of a court order) to permit the disclosure.

Physician Patient Privilege

The government acknowledges there is no technical physician patient relationship between Dr. Eskay-Auerbach and the subjects. However, the government asserts the materials include summaries that were disclosed pursuant to a waiver of a valid privilege. Lind asserts once the privilege is waived (in the prior litigation), there is no longer a privilege to assert. Courts have not uniformly determined the effect of a waiver on subsequent litigation. See 81 Am. Jur. 2d Witnesses § 473 (May 2014). The Court finds significant that the subjects of the IMEs are not involved in this litigation. The Court declines to extend any waivers of the physician-patient privileges of the subjects to this litigation.

Disclosure Pursuant to Fed.R.Civ.P. 26

The applicable rule provides that disclosure related to an expert must includes "a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition[.]" Fed.R.Civ.P. 26(a)(2)(B)(v). Further, the rule addressing the scope of discovery provides in pertinent part:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All
discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

"Rule 26(b) does not mandate the disclosure of any additional reports that the expert may have prepared." Surles v. Air France, 2001 WL 815522 *7 (S.D.N.Y. July 19, 2001). Indeed, "[b]y implication, because the rule requires only the production of a list of the expert's cases, [the requesting party] is not entitled to disclosure of the reports [prepared by the opposing party's expert in cases in which the expert had testified over the last four years], regardless of their subject matter." Id., emphasis in original. Further, Lind is speculating that such evidence may be relevant (i.e., that it may show bias). As another district court has stated:

If the inference to be drawn from the evidence is the result of speculation or conjecture, the underlying evidence is not relevant. See Engstrand v. Pioneer Hi-Bred Int'l, 946 F.Supp. 1390, 1396 (S.D.Iowa 1996). "[T]he standard of relevancy is not so liberal as to allow a party to . . . explore matter which does not presently appear germane on the theory that it might conceivably become so." Food Lion v. United Food & Comm'l Workers Union, 103 F.3d 1007, 1012-1013 (D.C.Cir.1997).

Although another district court has found disclosure of prior reports to be discoverable pursuant to a similar request, ParkerVision, Inc. v. Qualcomm Inc., No. 3:11-cv-719-J-37-TEM, 2013 WL 3771226 (M.D.Fla., July 17, 2013), this Court finds that Lind's speculation that the IME reports contain evidence of bias does not allow disclosure of the IME reports so Lind can explore whether that speculation is true. See e.g., Bernstein v. Travelers Ins. Co., 447 F.Supp.2d 1100, 1102 (N.D.Cal.2006) ("It is Rule 26(b) that supplies the directives that federal courts must follow when trying to determine how far beyond clearly admissible evidence parties may cast their discovery nets."). Indeed, the rule applicable to disclosure regarding experts "was designed to prevent abusive 'fishing expeditions' into the background of a testifying expert." 2 Discovery Proceedings in Federal Court § 25:1 (3d ed. March 2014), citing Fed.R.Civ.P. 26(b)(4). There is no basis to reasonably conclude that the disclosure of the IME reports would lead to the discovery of admissible evidence.

Accordingly, IT IS ORDERED Lind's request for the Court to order the disclosure of all IME reports authored by Dr. Eskay-Auerbach is DENIED.

__________

Cindy K. Jorgenson

United States District Judge