Judge: Mark A. Young, Case: 21STCV07431, Date: 2023-05-05 Tentative Ruling
Case Number: 21STCV07431 Hearing Date: May 5, 2023 Dept: M
CASE NAME: Wallach, et
al. v. Providence Health, et al.
CASE NO.: 21STCV07431
MOTION: Motion
to Compel Further Responses
HEARING DATE: 3/3/2023
Legal
Standard
In
the absence of contrary court order, a civil litigant’s right to discovery is
broad. “[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action . . . if
the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010;
see Davies v. Superior Court
(1984) 36 Cal.3d 291, 301.)
A motion to compel further
production must set forth specific facts showing good cause justifying the
discovery sought by the inspection demand. (See Code Civ. Proc., §
2031.310(b)(1).) It is not necessary for the motion to show that the material
sought will be admissible in evidence. “Good cause” may be found to justify
discovery where specific facts show that the discovery is necessary for
effective trial preparation or to prevent surprise at trial. (See Associated
Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 586-588; see also Calcor
Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 224 [factual
evidence is supplied to the court by way of declarations].)
If a timely motion to compel has been filed, the¿burden
is on the responding party¿to justify any objection or failure fully to answer.¿(Coy,
supra, 58 Cal.2d 210, 220–221.)
Analysis
Plaintiffs David Wallach, Time
Wallach, and the Estate of Elizabeth Wallach (“Plaintiffs”) move to compel
further responses from Defendant Providence Health System – Southern California
as to their Requests for Production, Set No. 4, Requests Nos. 73-77. These
requests seek the following categories of documents:
All DOCUMENTS showing KHALIL M. A.
TABSH, M.D.’s orders for venous thromboembolism prophylaxis in cesarean section
patients at THE HOSPITAL for the three months before the INCIDENT.
All DOCUMENTS showing the
discontinuation of KHALIL M. A. TABSH, M.D.’s orders for venous thromboembolism
prophylaxis in cesarean section patients at THE HOSPITAL for the three months
before the INCIDENT.
All DOCUMENTS showing KHALIL M. A.
TABSH, M.D.’s orders to “Place compression stockings” in cesarean section
patients at THE HOSPITAL for the three months before the INCIDENT.
All DOCUMENTS showing the
discontinuation of KHALIL M. A. TABSH, M.D.’s orders to “Place compression stockings”
in cesarean section patients at THE HOSPITAL for the three months before the
INCIDENT.
All DOCUMENTS showing KHALIL M. A.
TABSH, M.D.’s recordings for his objective postoperative assessment in cesarean
section patients at THE HOSPITAL for the three months before the INCIDENT.
The requests seek redacted
documents, which remove patients’ names and personal identifying information.
Defendant objects on the following
grounds: “Irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence. This request is burdensome, harassing, and oppressive.
This request violates the physician-patient privilege and the privacy rights of
third parties.”
Defendant argues that this
information is not relevant because the documents would not qualify as evidence
of custom and habit to show whether the sequential compression devices (“SCDs”)
were removed in this case, without an order. Furthermore, Defendant contends
that these records would not reveal any information as to actions taken by the
nursing staff in removing SCDs (whether based on Dr. Tabsh’s orders or not). Plaintiffs
take the position that Dr. Tabsh’s orders for venous thromboembolism
prophylaxis for other patients who underwent caesarean deliveries at Saint
John’s would potentially demonstrate whether there is a pattern of removing SCDs
based on Dr. Tabsh’s orders or if the nurses do so on their own without an
order to discontinue.
Plaintiffs’ theory is that Dr.
Tabsh generally tended to perform (or not perform) DVT exams, or that
the unnamed, unspecified nurses (who may be different from the relevant nurses)
tended to remove SCDs without an order. This attempts to prove the
commission of an act by showing the commission of similar acts by the
same person at other times and under other circumstances. (See Holdgrafer v.
Unocal Corp. (2008) 160 Cal.App.4th 907, 929 [evidence of a habit or custom
may be admissible to prove the defendant acted in conformity with that habit or
custom (Evid. Code § 1105); the hallmark of admissibility on any of these
grounds is similitude of the prior and present conduct]; see Bowen v. Ryan
(2008) 163 Cal.App.4th 916, 926 [“Custom or habit involves a consistent,
semi-automatic response to a repeated situation.”].) Used for this purpose,
this evidence would be inadmissible. Furthermore, there is other evidence on
the record which establishes the more directly relevant issues, such as whether
the nurses in this instance removed the SCDs without an order (they did)
or whether Dr. Tabsh did a DVT exam (he states that he did). The records would
therefore have limited probative value. That said, admissibility issues could
be addressed at trial via a motion in limine.
Moreover, at this stage, admissibility
is not the standard. Instead, the question is whether the demands are
reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs
seeks this production because they want to confirm Dr. Tabsh’s contention that
he always performed postoperative DVT exams. In a sense, Plaintiffs challenge
Defendant’s contention of a habit or custom, or in the alternative, seeks
impeachment evidence. Plaintiffs believe that these records will show whether
Dr. Tabsh uses the same “boilerplate, auto-populated” entries for every DVT
evaluation. Furthermore, Plaintiff seeks to examine his postoperative orders
for other patients, which would show if Dr. Tabsh “requires” an order to remove
the SCDs, or if the nurses have a habit of doing it on their own. Plaintiffs contend that this evidence is
necessary to oppose an upcoming motion for summary judgment and the basis for
Defendant’s expert’s opinion. While the
Court does conclude that Dr. Tabsh’s habit or custom is not relevant to this
case in light of Dr. Tabsh’s recollection of performing the DVT examination,
the evidence could potentially lead to admissible impeachment evidence as to
when, and by whom, the SCDs are removed.
Therefore, the Court concludes that this discovery may lead to the
discovery of impeachment evidence, including evidence contradicting Defendant’s
contentions regarding Dr. Tabsh’s habit or custom as to who orders the SCDs
removed. Therefore, discovery is
appropriate and will be permitted.
Privacy
Defendant also raises third party
privacy. The party asserting a privacy right must
establish a legally protected privacy interest, an objectively reasonable
expectation of privacy in the given circumstances, and a threatened intrusion
that is serious.
(Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,
35-37.)
Even highly relevant, non-privileged information may be shielded from
discovery if its disclosure would impair a person's "inalienable right of
privacy" provided by California Constitution Article 1, Section 1. (Britt
v. Superior Court (1978) 20 Cal.3d 844, 855-856.) Courts must carefully balance a right of
privacy against the interest in having just litigation. (Pioneer Electronics
(USA), Inc. v. Superior Court¿(2007) 40 Cal.4th 360, 371.) If there is a
serious invasion of a constitutional right to privacy, the party seeking the
evidence must establish that the information sought is not only essential and
directly relevant, but also that this information could not be discovered
through less intrusive means. (See¿Williams v. Superior Court¿(2017) 3
Cal.5th 531, 552.)
Certainly, the disclosure of
medical records would implicate third party privacy concerns. However, the
demands request the documents in a redacted format. Any privacy concerns on the
part of third parties are obviated by the proposed redactions, which would
remove any personally identifying information. Therefore, the Court does not
decline the motion on privacy grounds.
Defendant
is ordered to provide the requested information within 30 days.