Judge: Daniel M. Crowley, Case: 20STCV45734, Date: 2022-08-23 Tentative Ruling

Case Number: 20STCV45734    Hearing Date: August 23, 2022    Dept: 28

Plaintiff Janet Fugitt’s Motion to Quash Deposition Subpoenas

Having considered the moving, opposing and replying papers, the Court rules as follows. 

BACKGROUND

On November 30, 2020, Plaintiffs Diane Flessas (“Flessas”), the Estate of Russell Rowland (“Estate”) and Jonathon Rowland (“Rowland”) filed this action against Defendants ResMed Corp. (“ResMed Corp” or “Defendant”), Resmed Inc. (“Resmed Inc”), Resmed Motor Technologies, Inc. (“RMT”) for wrongful death—strict product liability (defective design: consumer expectation), wrongful death—strict product liability (defective design: risk-benefit), wrongful death—strict product liability (manufacturing defect), wrongful death – negligence (manufacturing), wrongful death – negligence (design), survival action—strict product liability (defective design: consumer expectation), survival action—strict product liability (defective design: risk-benefit), survival action—strict product liability (manufacturing defect), survival action – negligence (manufacturing) and survival action – negligence (design).

On March 9, 2021, ResMed Corp filed an answer

On April 21, 2021, the Court dismissed Resmed Inc without prejudice, pursuant to Plaintiff’s request. On April 26, 2021, the Court dismissed RMT without prejudice, pursuant to Plaintiff’s request.

On July 8, 2022, the Estate filed a Motion to Quash ResMed Corp.’s Deposition Subpoena for Records to be heard on August 23, 2022. On August 10, 2022, ResMed Corp filed an opposition. On August 16, 2022, Plaintiffs filed a reply.

Trial is currently scheduled for May 11, 2023.

PARTY’S REQUESTS

The Estate requests the Court quash Defendant’s deposition subpoenas to the following providers: (1) In Home Supportive Services; (2) Marilyn Moore, MD; (3) Edward Helfand, DPM; (4) Michael Bahgat Bishai, MD; (5) Richard Shubin, MD; (6) Rajiv Philip, MD; (7) Rajiv Philip, MD; (8) Michael Cortez, MD; (9) Hanson T Lee, MD; (10) Rodrigo Rodriguez, MD; (11) Jerry Eu Pang-Chieh, MD; (12) Robert Siew, MD; (13) David Gee Man, MD; (14) Michael J Gurevitch, MD; (15) Andreas Christoph Mauer, MD; (16) Jesus Vazquez, MD; (17) Morris Baumgarten, MD; (18) Richard E Nickowitz, MD; (19) Charles F Sharp Jr, MD; (20) Almira Cann, MD; (21) Raul Fernando Roth, MD; (22) Christopher Tiner, MD; (23) Steven Battaglia, MD; and (24) David Gee Man, MD.

Defendant requests the Court deny the motion and impose sanctions totaling $3,250.00

LEGAL STANDARD

Code of Civil Procedure §1987.1: (a) If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

Code of Civil Procedure § 1985.3(b) outlines that a subpoena for production of personal records must be served on the consumer whose records are sought; it must be served at least five days prior to service upon the custodian of records. This subpoena must be accompanied by a notice indicating records sought, how to object, and that an attorney should be consulted, although this may be included in the Notice of Deposition served on consumer. CCP § 1985.3(e). Section (g) further clarifies: “No witness or deposition officer shall be required to produce personal records after receipt of notice that the motion [to quash] has been brought by a consumer, or after receipt of a written objection from a nonparty consumer, except upon order of the court in which the action is pending or by agreement of the parties, witnesses, and consumers affected.”

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court. (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

DISCUSSION

Plaintiffs allege that Decedent’s death arose from the defective design of the Astral 150 ventilator. Plaintiffs specifically alleges that Decedent suffocated nearly twenty minutes after the ventilator alarm failed to notify his caretaker of a disconnection, resulting in Decedent falling into a coma until his death approximately 2 months later. Plaintiffs state that Decedent relied upon the ventilator because he suffered from chronic C1-C2 quadriplegia.

Defendant served 24 deposition subpoenas for the production of business records to Plaintiff’s providers, as identified above. The deposition subpoenas requested “any and all records” from the first date of treatment to present without limitations to scope and or body part.

Defendant argues that discovery has shown that the alarm was audible and was routinely adjusted in volume by Decedent’s caretakers, giving Decedent’s caretakers control over volume. Defendant asserts that because Plaintiffs allege that Flessas and Decedent claimed they had an active lifestyle and travelled, despite Decedent’s medical condition, Decedent has the right to investigate Plaintiff’s actual quality of life and life expectancy.

The Court finds the subpoenas appropriate to a point.  The defense is entitled to develop evidence of Mr. Rowland’s comorbidities and quality of life.  Nonetheless, Defendant’s subpoenas are without any limitation as to temporal scope, which the Court finds to be invasive of Plaintiff’s decedent’s privacy. 

Moreover, The Court sees no relevance in any of the billing of any of the providers subpoenaed. 

The Court will allow the subpoenas, but only as to the records of examinations/diagnosis/treatment (no billing records), and with a temporal limitation of 5 years prior to Mr. Rowland’s date of death. 

CONCLUSION

Plaintiff Estate of Russell Rowland’s Motion to Quash Deposition Subpoenas is GRANTED, but only in part. Defendant’s subpoenas to (1) In Home Supportive Services; (2) Marilyn Moore, MD; (3) Edward Helfand, DPM; (4) Michael Bahgat Bishai, MD; (5) Richard Shubin, MD; (6) Rajiv Philip, MD; (7) Rajiv Philip, MD; (8) Michael Cortez, MD; (9) Hanson T Lee, MD; (10) Rodrigo Rodriguez, MD; (11) Jerry Eu Pang-Chieh, MD; (12) Robert Siew, MD; (13) David Gee Man, MD; (14) Michael J Gurevitch, MD; (15) Andreas Christoph Mauer, MD; (16) Jesus Vazquez, MD; (17) Morris Baumgarten, MD; (18) Richard E Nickowitz, MD; (19) Charles F Sharp Jr, MD; (20) Almira Cann, MD; (21) Raul Fernando Roth, MD; (22) Christopher Tiner, MD; (23) Steven Battaglia, MD; and (24) David Gee Man, MD, are all limited to records reflecting the providers provision of examinations/diagnosis/treatment of Mr. Rowland (no billing therefor), and to only the 5 years prior to his date of death. 

            Moving party is ordered to give notice of this ruling.  Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

            Both sides’ requests for sanctions are denied. 

The parties are directed to the header of this tentative ruling for further instructions.