Judge Randolph M. Hammock, Case Number: 20STCV47887, Date: 2023-11-15 Tentative Ruling

Judge: Randolph M. Hammock, Case: 20STCV47887, Date: 2023-11-15 Tentative Ruling

Plaintiffs Felipe Mejia Iniguez and Maria G. Mejia filed the instant action against various manufacturers of alleged toxic chemical products. Felipe worked in mannequin manufacturing where he alleged he was exposed to harmful chemical products that caused renal cell carcinoma. Felipe passed away from the cancer after filing this suit; his wife, as his surviving spouse and successor-in-interest, continues the suit on his behalf. The First Amended Complaint also adds Felipe’s adult children as Plaintiffs, and asserts causes of action against the chemical manufacturers for (1) negligence, (2) strict liability – warning defect, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

Plaintiffs now move to quash the deposition subpoena for the production of business records on non-party Saundra Edwards by Defendant Univar Solutions USA, Inc. Defendant opposed.

A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Proc., § 1987.1.)

Plaintiffs move to quash Defendant Univar Solutions USA Inc.’s Subpoena for the Production of Business Records served on Plaintiff Rosalva Mejia’s psychotherapist, Saundra Edwards. Plaintiff Rosalva Mejia is the daughter of the decedent Felipe Mejia Iniguez.

(1) Any and all WRITINGS OR DOCUMENTS RELATING TO [Rosalva Mejia]’s care, treatment, examination and/or consultation with YOU, including but not limited to all office, emergency room, inpatient and outpatient charts and notes; correspondence; patient histories; diagnosis, prognosis, and treatment; laboratory tests and results; prescriptions; radiological reports and diagnostic studies; photographs; patient consent forms; logs; counseling; physical therapy records, including sign-in sheets and all descriptions of exercises prescribed; appointment records; and insurance documents.

(2) Any and all itemized statements of the billing charges and/or consolidated statement of benefits, with diagnostic and procedure codes, to include the total charges private or governmental; any amounts written off by the provider, and any amounts that are the patient’s responsibility; payment history and any insurance billing or payments information; and emergency room physicians’ bills.

First, Plaintiffs contend the mental health records are protected pursuant to Plaintiff’s Constitutional right of privacy. Second, Plaintiffs argue the records are protected by the psychotherapist-patient privilege. (Evidence Code § 1014.) Third, Plaintiffs argue the records are not relevant to the issues because Plaintiff has not placed her mental condition in controversy above and beyond “that distress typically associated with a wrongful death cause of action.” (Mtn. 7: 26-27.)

In opposition, Defendant argues that Plaintiffs have put communication and treatment relevant to the mental or emotional condition of patient, Rosalva Mejia at issue, by claiming mental injuries and naming her therapist Saundra Edwards as a witness in discovery. It contends that Plaintiff’s mental health records are relevant to the subject matter of the lawsuit, that Plaintiff waived any existing privilege, and the records are not protected by any right to privacy.

Evidence is relevant if it “ha[s] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.) “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that 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; Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [“discovery is not limited to admissible evidence”].)

“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. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Ct. (2017) 3 Cal. 5th 531, 552.)

Here, Plaintiff identified Ms. Edwards as a witness in response to Univar’s form interrogatories as someone with knowledge of the occurrence giving rise to this action. In her special interrogatory number 7, Plaintiff again identified Ms. Edwards as someone with knowledge of the facts concerning Decedent’s exposure to chemical products.

A plaintiff may waive the psychotherapist-plaintiff privilege by placing her mental condition at issue in the lawsuit. (Cal. Evid. Code § 1016). The exception provides in relevant part that “[t]here is no privilege…as to a communication relevant to an issue concerning the mental or emotional condition of the patient.” (Id.)

Expanding on this section, the California Supreme Court has explained that “plaintiffs are ‘not obligated to sacrifice all privacy to seek redress for a specific [physical,] mental or emotional injury’; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing [a] lawsuit, . . . they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [citation and footnote omitted].) However, “. . . privacy interests may have to give way to [an] opponent’s right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

Importantly, when determining damages in a wrongful death action, the jury may not consider a plaintiff’s “grief, sorrow, or mental anguish” or “pain and suffering.” (CACI 3921.) “California cases have uniformly held that damages for mental and emotional distress, including grief and sorrow, are not recoverable in a wrongful death action.” (Krouse v. Graham (1977) 19 Cal.3d 59, 72, internal citations omitted.)

Based on the express exclusion of this evidence from a jury’s consideration, Defendant has failed to demonstrate the evidence sought is “reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) This court does not mistake discoverable evidence for admissible evidence. However, given the privacy interests at issue, Defendant needed to clearly articulate how the records would lead to discovery of admissible evidence. It has not done so. Merely bringing a wrongful death action is insufficient, since the jury may not consider a plaintiff’s “grief, sorrow, or mental anguish” or “pain and suffering.” (CACI 3921.)

To conclude, when balancing Plaintiff’s privacy interests against Defendant’s interest in discovering the documents at issue, the balance does not shift in favor of disclosure.

In making an order pursuant to California Code of Civil Procedure section 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.