The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Louis Bruno ("Bruno") brings this action pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq., alleging that the negligence of his employer, defendant CSX Transportation, Inc. ("CSX"), caused his personal injuries. Compl. (Docket No. 1). Presently pending is CSX's motion to compel Bruno to produce an unlimited authorization for release of his medical records from his primary care physician pursuant to Fed. R. Civ. P. 37. Docket No. 16. Bruno opposes the motion. Docket No. 17. For the following reasons, CSX's motion is granted. I. Background
At all times relevant herein Bruno was employed by CSX as a carman. Compl. ¶ 5. On July 15, 2006, while inspecting a train, Bruno suffered a crush injury to his left foot. Id. ¶ 6. As a result of this injury, Bruno claims to have sustained serious and permanent injuries; . . . physical pain, discomfort, and mental anguish, . . . [which] will continue . . . in the future; . . . missed time and lost earnings and fringe benefits from his employment, [which] . . . he will continue to miss . . . [in the future]; . . . suffered loss of future earning capacity; . . . suffered and will continue to suffer loss of enjoyment of life . . ., permanent injury, permanent impairment, and permanent disability.
During discovery, CSX sought Bruno's authorization to obtain copies of his medical records from Bruno's general family practitioner. See Def. Mem. of Law (Docket No. 16) at 1. In response, Bruno provided an authorization which limited the scope by excluding from disclosure any records pertaining to drug and alcohol treatment, mental health information, and HIV-related records. Pl. Mem. of Law (Docket Nos. 17, 18)*fn1 at 3. CSX made no objection to the authorization, and it was subsequently signed and sent to the provider's office. Docket No. 18-5; see also Pl. Mem. of Law at 3. The doctor advised that there would be an increased cost associated with providing the records with the limitation as the records regarding substance abuse treatment were so intertwined in Bruno's records that either it would take longer to redact the records before production or the physician would have to re-dictate the records to omit the notes pertaining to the substance abuse treatment. Docket No. 18-6 at 1. The present motion ensued.
While the motion was pending, CSX filed a letter seeking to submit additional information pertaining to their need for unabridged medical records. Docket No. 19. CSX responded. Docket No. 21. According to CSX, records received from Bruno's medical insurance provider indicate that Bruno received treatment from the Hudson Mohawk Recovery Center, a facility that provides treatment for alcohol/substance abuse, sometime in 2008-2009. During the pendency of this Motion, . ..
CSX claims [reported] that [Bruno] . . . has taken a[n undisclosed] leave of absence from railroad employment starting in November 2008 and has still not returned to work.
Id. at 1. The records also indicate additional treatment from previously undisclosed sources during the fall of 2008. Id. at 2.
Bruno opposes unlimited disclosure of his medical records because the records are privileged and not relevant to the present case. CSX argues that, especially in light of the recently disclosed records from Bruno's health insurer, the records are highly relevant to Bruno's contentions of mental anguish and lost earnings. Parties are entitled to "discover . . . any non-privileged matter that is relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b)(1). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
Id. This broad standard "encompass[es] any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case."
E.E.O.C. v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 118 (W.D.N.Y. 2009) (internal quotations and citations omitted). Thus, the present inquiry must determine (1) if Bruno's medical records are relevant; (2) if so, are the records protected by a federal, state, or common law privilege; and (3) if so protected, has the privilege been waived.
Here, the primary care physician's medical records relating to Bruno's substance abuse and mental health treatments bear directly on Bruno's claims. Bruno has alleged that he suffered, and continues to suffer, mental anguish, lost wages and work opportunities, and enjoyment of life and his prior activities. Compl. ¶ 16. CSX contends that other reasons existed for such damages. From Bruno's health insurer records, ample evidence exists that disclosure of the primary care physician's mental health and substance abuse treatment records will reveal evidence relevant to CSX's contention of alternative or intervening causes for the damages asserted by Bruno. At a minimum, the previously disclosed insurance records indicate that Bruno (1) temporarily left work to attend a facility where substance abuse rehabilitation treatment was given and (2) is on a leave of absence from work for undisclosed reasons which may be unrelated to the physical injuries allegedly sustained to his foot. Docket No. 21 at 1.
The question then becomes whether a family physician's records are privileged in an action based on a federal statute. The Supreme Court has specifically held that records such as those at issue here are protected by a psychotherapist-patient privilege but explicitly distinguished that treatment situation from "treatment by a medical, non-mental health provider." Nicholas Gas, 256 F.R.D. at 119 (citing Jaffee v. Redmond, 518 U.S. 1, 10 (1996)). The Second Circuit has used similar language in recognizing a psychotherapist-patient privilege, distinct from the physician-patient privilege. Id. at 118-120 (citing In re Sims, 534 F.3d. 117, 128-42 (2d Cir. 2008)). Additionally, "a physician-patient privilege was not one of the nine privileges recognized in the earlier draft of [Fed. R. Evid.] 501 and has not traditionally been recognized at [federal] common law." Id. at 119; see also Ruszkowski v. Kaleida Health Sys., No. 06-CV-715S, 2007 WL 4380160, at *2 (W.D.N.Y. Dec. 13, 2007) ("[A]s this action is based solely on federal law, the court need not determine . . . that Plaintiff may assert any privilege other than the attorney-client privilege pursuant to Fed. R. Evid. 501."). Furthermore, although New York state "has legislated a physician-patient privilege, state privilege laws do not ...