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Malmberg v. United States

March 24, 2010

CHARLES MALMBERG, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

On or about September 15, 2006, Plaintiff filed this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq., for injuries he sustained on or about November 4, 2004, during the course of a diskectomy at the Syracuse Veterans Administration Medical Center ("SVAMC"), in Syracuse, New York. Initially, Plaintiff retained the services of H. Paul Lewis, M.D., a board certified neurosurgeon, whose deposition was taken on June 27, 2008. Unfortunately, Dr. Lewis passed away during the third week of July of 2008.

In July of 2009, Plaintiff retained the services of Morris Marc Soriano, MD, board certified in neurosurgery, who prepared a report dated July 27, 2009. Dr. Soriano's deposition was taken on November 9, 2009, at his office in Rockford, Illinois.

In his report, Dr. Soriano specified two violations of the standard of care that SVAMC committed during Plaintiff's diskectomy, including its failure to use magnification and illumination. Moreover, during his deposition, Dr. Soriano stated that, during the forty to fifty diskectomies he performs each year, he always uses magnification, and that the medical records from the three hospitals where he performed these surgeries would indicate this fact. See Defendant's Memorandum of Law at Exhibit "B," at 79-80.

On or about February 9, 2010, subpoenas were issued from the United States District Court for the Northern District of Illinois to Swedish American Hospital, St. Anthony Medical Center, and Rockford Memorial Hospital, each requesting copies of operative reports for diskectomies and/or spinal surgeries that Dr. Soriano had performed from January 1, 2005 to February 1, 2010. The subpoenas also provided that patient identifiable information could be redacted but, if possible, initials of the first and last name and gender should be provided. See id. at Exhibit "C."

Currently pending before the Court is Plaintiff's motion for a protective order and to quash the subpoenas duces tecum that the United States District Court for the Northern District of Illinois issued. Although the hospitals have not challenged the subpoenas, Plaintiff does.

II. DISCUSSION

A. Court's authority to quash subpoena

Although a protective order can be sought/determined in the court where the underlying action is pending, as well as the court from which the subpoena issued, the language of Rule 45(c) of the Federal Rules of Civil Procedure "appears to indicate that the appropriate venue for a motion to quash is the court that issued the subpoena." Anderson v. Perales, No. 91-CV-01294, 2006 WL 1555605, *4 (N.D.N.Y. June 6, 2006) (emphasis added); see also Westernbank Puerto Rico v. Kachkar, Nos. M8-85 X3, 07-1606, 2009 WL 856392, *2 (S.D.N.Y. Mar. 27, 2009) (citation omitted). The Court does not need to address this issue, however, because Plaintiff's motion fails for other reasons.

B. Standing

A party ordinarily lacks standing to challenge a non-party subpoena with a motion for a protective order or to quash unless the party is seeking to protect a personal privilege or right. See Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (citation omitted); see also Nova Prods., Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 241 (S.D.N.Y. 2004) (citations omitted).

Plaintiff claims that he is entitled to this relief because these non-party subpoenas are unreasonable, oppressive, and require the disclosure of privileged matter. See Affidavit of Robert B. Nichols dated February 16, 2010 ("Nichols Aff."), at ¶ 2. Moreover, Plaintiff claims that non-party subpoenas are subject to the Rule 26(c) protection from "annoyance, oppression, or undue burden or expense." See id. at ¶ 7.

Although Plaintiff claims that the information requested is privileged, he does not assert a personal privilege or right in the information; he is merely seeking to assert the rights of others. Moreover, no additional burden is placed on Plaintiff because the hospitals are the ones who need to comply with the subpoenas, and Defendant asserts that it will provide Plaintiff with a free copy of all materials it receives. As such, Plaintiff has not asserted any personal ...


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