Judge Ronald F. Frank, Case Number: 21STCV3326, Date: 2024-08-13 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV3326, Date: 2024-08-13 Tentative Ruling

Case Number: 21STCV3326 Hearing Date: August 13, 2024 Dept: 8

Tentative Ruling

HEARING DATE: August 13, 2024

CASE NUMBER: 21STCV3326

CASE NAME: Plaintiff Doe v. Innovative Fertility Center, et al.

MOVING PARTY: Plaintiff, Plaintiff Doe

RESPONDING PARTY: Defendants, Innovative Fertility Center, Mark J. Rispler, M.D.

TRIAL DATE: March 24, 2025

MOTION:¿ (1) Plaintiff’s Motion to Quash or Modify Defendant, Mark Rispler’s Subpoena for Records

Tentative Rulings: (1) DENIED. Potential areas for oral argument are noted below

I. BACKGROUND¿

A. Factual¿

Plaintiff Doe filed this action against Defendants Innovative Fertility Center, Mark J. Rispler (collectively “Defendants”), and Does 1-50 on September 9, 2021. On November 15, 2021, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants alleging the following causes of action: (1) Battery; (2) Sexual Assault; (3) Medical Negligence; and (4) Intentional Infliction of Emotional Distress. These causes of action are based on Plaintiff’s allegation that on October 1, 2019, during her medical appointment with Mark J. Rispler, M.D., that he intentionally and inappropriately used the transvaginal ultrasound wand in a sexual nature as he was performing the exam.

On June 12, 2024, Defendant, Mark Rispler (“Rispler”) served a deposition subpoena for Plaintiff to produce documents. Plaintiff contends that the subpoena requires the production of medical documents to be produced on July 2, 2024. As such, Plaintiff seeks an order quashing or modifying the subpoena insofar as it seeks the production of Plaintiff’s medical records, because: (1) the subpoenas unreasonably infringe on Plaintiff’s constitutional right to privacy under California law; and (2) the subpoenas are overbroad and irrelevant.

B. Procedural

On June 27, 2024, Plaintiff filed this Motion to Quash or Modify Defendant, Mark Rispler’s Subpoena for Records. On July 31, 2024, Defendants filed an opposition brief. On August 6, 2024, Plaintiff filed a reply brief. The Court notes that this motion was field one day before the parties’ settlement conference with Judge Tanaka.

II. ANALYSIS ¿

Preliminarily, this Court notes that Plaintiff brings up a timing issue with the serving of the deposition subpoena in her reply brief, i.e., that the subject medical records subpoena was served after the discovery cut-off date. No such argument was raised in the moving papers. The Court’s practice is to either refuse to consider new matters raised for the first time in reply papers, or to continue the hearing and allow the opposing party an opportunity to file a sur-reply. The Court will address that issue first in oral argument.

Further, this Court also notes that it has previously ruled on a very similar motion as to different medical records in July of 2023, and the legal standards for addressing such a motion have not materially changed in the last year.

A. Legal Standard

Code of Civil Procedure § 1987.1 grants the trial court authority to quash a subpoena when necessary. Code of Civil Procedure § 1987.1 provides: “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. Discussion

Plaintiff notes that the subpoena to produce documents, sent to Brandy Stewart, MSW, seeks the following:

Any and all documents and medical records and reports, and all writings, including, but not limited to, all office, emergency room. inpatient, outpatient, hospital charts and records, including any and all electronically stored documents and files: any and all radiology materials and films. X-rays, MRl's, and CT scans (a complete list of breakdown from your film library must be provided prior to production of requested films), pertaining to the care, treatment. And examination of [Plaintiff Doe], DOB:07/02/1977, SSN: XXX-XX-0120. The subpoena seeks a production date of July 2, 2024.

(Declaration of Na’il Benjamin (“Benjamin Decl.”), ¶ 2, Exhibit A.)

Defendant argues that the records sought are those of Plaintiff’s treating therapist whom she testified she only saw after the alleged incident with Dr. Rispler, and solely about the alleged incident with Dr. Rispler. Plaintiff has alleged a cause of action for Intentional Infliction of Emotional Distress, and that Plaintiff is claiming financial and emotional damages as a result of the incident for which she testified she treated with Stewart. The deposition excerpts attached to the opposition papers show that Plaintiff testified she first treated with trauma specialist Brandy Stewart after the subject October 1, 2019 ultrasound, and that Plaintiff treated with Ms. Stewart for approximately 20 sessions through 2020 or 2021 before seeing a different therapist, Mary Denise Walton.

Plaintiff argues that Defendants’ subpoena unreasonably infringes on plaintiff’s rights to privacy. Plaintiff concedes that the filing of her lawsuit may be deemed a waiver of privacy as to matters embraced by the action. However, she argues that the scope of the privacy waiver “must be narrowly rather than expansively construed.” (citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859.) Plaintiff contends that Defendants’ subpoena seeks all-encompassing requests relating to medical records being kept and maintained by Brandy Stewart, MSW. Plaintiff argues that the overbroad language of these requests risk production of documents that contain private medical information. Plaintiff further argues that nothing in her complaint or operative discovery responses reference her prior medical history or put it “at issue” in this case. The Court disagrees. For the same reasons in Defendant’s opposition, Plaintiff has placed her therapeutic visits with Ms. Stewart “at issue” in this case by answering interrogatories and deposition question that identified Ms. Stewart as a health care profession from whom Plaintiff sought treatment after the incident. On the record before the Court, the treatment records, notes and other materials appear to be limited in time to the period between October 2019 and December 31, 2021, which is a reasonable time limitation. With respect to scope of records, the language of the SDT encompasses things it is unlikely Ms. Stewart might have as a therapist, i.e., x-rays,, MRIs and CT scans, but if Ms. Stewart did obtain such materials from Plaintiff or another provider to assist in diagnosing and treating Plaintiff, those materials are within the ambit of a reasonable scope given the nature of Plaintiff’s claims here.

This Court notes, as it did in its previous July 18, 2023 tentative ruling, that when a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) This Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Here, Plaintiff’s Complaint contends that she has suffered the cost of medical treatment as well as emotional and other non-economic damages because of Defendant, Mark J. Rispler, M.D.’s inappropriate use of a vaginal ultrasound wand. However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.) The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) As such, Defendants’ burden was to show this Court how the subpoena request was directly relevant. This Court finds that Defendant has done so.

The Court will entertain oral argument from Plaintiff as to any specific scope limitations Plaintiff would like to have the Court consider, i.e., if Plaintiff can identify specific documents or other matters given or disclosed to Ms. Stewart that would be beyond the bounds of the medical conditions Plaintiff placed in issue in this case. But Defendant are entitled to learn about Plaintiff’s treatment for her emotional and physical state as a claimed result of the subject ultrasound wand incident and on the record before this Court, Plaintiff received multiple treatment session with Ms. Stewart and discussed the incident itself with Ms. Stewart.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Quash is DENIED.

¿¿

Defendants are ordered to give notice.