Judge: Mark H. Epstein, Case: 20STCV16594, Date: 2023-03-10 Tentative Ruling

Case Number: 20STCV16594    Hearing Date: March 10, 2023    Dept: R

The motion to quash is GRANTED.  The court has already issued a number of rulings in this case, so an extensive factual summary is not necessary.  At bottom, plaintiff bought a product manufactured by defendant Onyx and sold through the Amazon.com website.  The product has been referred to in this litigation as the Wand.  According to plaintiff, when she tried to use it, the glass headpiece on the Wand exploded in her hand causing significant injury.  Plaintiff further claims that the defect was known to defendants, who failed to warn plaintiff of the risk (or simply take it off the market or refuse to continue selling it).  At issue is a deposition subpoena directed to plaintiff’s physician, Dr. Kalantarian.  Plaintiff agrees, of course, that defendants are entitled to depose her medical providers as related to her claimed injury.  She claims, however, that the deposition here goes to medical treatment that she obtained after the incident but that had nothing to do with her claimed injuries.  She has therefore moved to quash the deposition subpoena.  She also seeks an order directing defendants to destroy any medical records relating thereto because, she argues, those medical records should never have been provided in the first place.

In opposition, defendant Amazon.com asserts that the procedure in question is pertinent.  Although the particular body part involved is not the hand, defendant contends that the surgery and recovery could have contributed to the symptoms about which plaintiff now complains and that only by deposing Dr. Kalantarian can they know for sure.

To resolve this, our Supreme Court has set forth the definitive test.  The party asserting the privacy right must establish a protected interest and a serious intrusion of it.  If that is done, the party seeking information must set forth the legitimate and important countervailing interests for disclosure.  The party asserting privacy can also suggest less intrusive ways of accomplishing that interest.  The court must then balance those competing considerations.  (Williams v. Superior Court (2017) 3 Cal.5th 531.)  The court has little trouble with the first part of the test.  Plaintiff plainly has a privacy interest in her medical procedures and defendant does not contend to the contrary.  Defendant’s argument is that there is an important countervailing interest, specifically that plaintiff has put her injuries at issue through this lawsuit and that the discovery sought is necessary to allow defendant to reduce the damages for which it will be responsible (assuming liability) by showing that the injury or part of the injury was caused by something other than the Wand.  Plaintiff, in turn, agrees with the major premise, but not the minor one.  In other words, plaintiff agrees that had she put this particular aspect of her medical history at issue, defendants would be entitled to discovery thereon.  Where she differs is that she asserts that she never put this aspect of her medical history at issue and that the discovery sought is a fishing expedition.  (While generally one needs no fishing license for discovery, where privacy is involved a license to fish is required and not always easily obtained.)  In support of their position, defendants submit a declaration from Dr. Shamoun, an expert.  Plaintiff submits no expert declaration in response.

The Shamoun declaration is not terribly detailed.  The operative part of the two and a half page declaration starts at paragraph 6.  It states that plaintiff’s non-specific pain in the elbow, shoulder, and neck is a possible side effect of the surgery and could also be a result of nerve compression from compression garments after the surgery.  It goes on to say that “It is possible that a pain syndrome resulting from [the] surgery could impair a patient’s ability to perform everyday tasks.”  In paragraph 8, he states that “Patients can also experience elbow, shoulder, and neck pain as a result of stretch injuries and/or compression to the axillary nerves due to improper positioning on the surgical table.”  Finally, he concludes that “To determine the etiology of this Plaintiff’s alleged pain syndrome it would be necessary to further investigate the care and treatment of Plaintiff by her treating physician, Dr. Kalantarian.”  That is the sum and substance of the declaration and no further detail is provided.  (The remaining paragraphs go to Dr. Shamoun’s qualifications and the documents he examined.)  The court notes that this is after Dr. Shamoun had access to the written medical records, meaning one might expect a greater degree of specificity and explanation as to why specifically Dr. Kalantarian’s deposition is required that had Dr. Shamoun been given no information at all.

At best, this declaration suggests that it is possible at least in theory that neck, shoulder, and elbow pain could be caused by the surgery or its aftermath.  But there is no opinion as to whether that is a long shot in the dark (to risk a double metaphor) or a realistic possibility.  There is no explanation as to how the surgery at issue could manifest to the pain plaintiff alleges.  There is no discussion as to whether the surgery is even in the ballpark of causation given that the Wand exploded in plaintiff’s hand and the surgery was on a different body part entirely.  In short, the declaration is far too generic and general to warrant defendant traipsing into plaintiff’s private medical history concerning body parts unrelated to the injury she claims. 

The court notes that this is not just a question of privilege—indeed, privilege is only a small part of the equation.  The court agrees with the defense that the privilege is limited to only certain aspects of what might be asked at deposition.  But there is also the broader privacy concern.  Surgery and medical treatment is squarely within the privacy zone.  No doubt but that where the plaintiff puts the question at issue, the privacy will be overcome.  So, for example, if plaintiff also had hand surgery relating to removal of skin cancer (a counter-factual hypothetical), the court readily sees how that procedure would be fair game to the extent plaintiff is claiming an injury to the same hand.  That is just not the situation here.  This is too much like a fishing expedition into too personal and private information to overcome the privacy interest.  The motion to quash is therefore GRANTED.  The court is not opining on how it would have come out had there been a more powerful declaration that established that this was not a mere theoretical possibility and discussed what specifically could have been learned at a deposition that was not available from the medical records.  (Given that the motion to quash is granted, the court would not expect Dr. Kalantarian to testify on this subject at trial or render any opinion thereon.)

Plaintiff also asks that Dr. Kalantarian’s medical records be destroyed.  The court will not grant that request.  However, the court emphasizes that these documents are to be considered within the confidentiality stipulation and will be returned or destroyed at the litigation’s conclusion.  Plaintiff also complains that the confidential records were attached to the opposition.  They were not attached; they were lodged.  The court orders that they be filed with the court, given that they are pertinent, but that the filing be under seal.

Although the motion was granted, the court finds that there was substantial justification to oppose it, and therefore plaintiff’s request for sanctions is DENIED.