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Pokigo v. Target Corporation

United States District Court, W.D. New York

December 8, 2014

KATHY POKIGO, Plaintiff,


H. KENNETH SCHROEDER. Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #4.

Plaintiff commenced this action in New York State Supreme Court, Erie County, seeking damages for personal injuries sustained following a fall near the front entrance of the Target Store in Orchard Park, New York on January 27, 2011, resulting in a partial tear of the left rotator cuff, aggravation of a prior C5-6 fusion, protrusion at C4-5, left knee sprain, and right hand sprain. Dkt. #1-3 & Dkt. #12-2. Plaintiff, a 51 year-old pharmacy manager at the time of the incident, is seeking compensation for past and future pain and suffering, loss of enjoyment of life, lost wages and medical expenses. Dkt. #12-2. The action was removed to this Court based upon diversity jurisdiction. Dkt. #1, ¶ 9.

Currently before the Court is defendant's motion: (1) to compel medical authorizations; (2) to preclude or compel evidence of special damages; (3) to preclude plaintiff's treating physicians from testifying as expert witnesses; (4) for attorney's fees. Dkt. #12.

Medical Authorizations

Subsequent to the filing of the motion to compel, plaintiff produced medical authorizations except as requested from Dr. Pieczonka, plaintiff's gynecologist, and Dr. Quijada, plaintiff's endocrinologist. Dkt. #14, pp.2-3. Plaintiff declined to provide authorizations for these providers on the ground that she has made no claim for damages with respect to these providers' medical specialties. Dkt. #14, p.3. Plaintiff limited her medical authorizations to preclude disclosure of records relating to alcohol/drug treatment; mental health information; and HIV-related information on the ground that such information is "not relevant as they are not claims made in this action." Dkt. #14, p.3. Plaintiff specifically declined to provide an authorization for Dr. Sally Briggs, a psychotherapist, on the ground that plaintiff "makes no claim for injuries that result in mental health complaints, treatment, or therapy." Dkt. #14, p.4.

Defendant argues that full disclosure of plaintiff's medical records is required to assess alternate causes for plaintiff's lost wage claim of $225, 000, as well as her claims of loss of enjoyment of life and pain and suffering. Dkt. #16, ¶ 12. Defendant notes that Dr. Kauderer identifies alternate sources of mental stress and anxiety and suggests that plaintiff's "psychiatric symptoms and issues are preventing her from RTW at this point, even though she is making some positive progress as far as her physical issues." Dkt. #12-8 & Dkt. #16, ¶ 12. In addition, defendant notes that several medical providers have refused to provide medical records without receipt of an unlimited authorization. Dkt. #12-7 & Dkt. #16, ¶¶ 16-17. Defendant argues that disclosure of medical records from Dr. Pieczonka and Dr. Quijada are relevant given that plaintiff testified at her deposition that Dr. Pieczonka diagnosed her with osteopenia, a condition managed by an endocrinologist, and relevant to her claims of joint pain and injury. Dkt. #16, ¶ 20.

"The deposition-discovery regime set out by the Federal Rules of Civil Procedure is an extremely permissive one to which courts have long accorded a broad and liberal treatment to effectuate their purpose that civil trials in the federal courts [need not] be carried on in the dark." In re Friedman, 350 F.3d 65, 69 (2d Cir. 2003) (internal quotation omitted)(alteration in original); See Fed.R.Civ.P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.") "The underlying policies of the Federal Rules of Civil Procedure relating to the discovery phase of a case are clear: parties are permitted to conduct full, wide-ranging discovery as long as it is aimed at obtaining material which will be relevant to the ultimate disposition of the case." Factor v. Mall Airways, Inc., 131 F.R.D. 52, 54 (S.D.N.Y. 1990). Thus, "[i]t is not grounds for an objection that the information sought will be inadmissible at trial so long as the material requested could lead to other information that may be relevant to the subject matter of the action." Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 591 (W.D.N.Y. 1996). "However, pursuant to Rule 26(c), the court may limit discovery even if the information sought is relevant." Tisby v. Buffalo General Hosp., 157 F.R.D. 157, 170 (W.D.N.Y. 1994); Coyne v. Houss, 584 F.Supp. 1105, 1109 (E.D.N.Y. 1984); See Rule 26(c) ("The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.").

Where, as here, plaintiff has significant pre-existing and ongoing mental and physical conditions which can reasonably be expected to impact her claim for damages resulting from this incident, defendant is entitled to full discovery regarding plaintiff's treatment history. See Bruno v. CSX Transp., Inc. 262 F.R.D. 131, 133-34 (N.D.N.Y. 2009) (finding privilege waived and granting discovery of medical records relating to plaintiff's substance abuse and mental health treatment where disclosure was likely to reveal evidence of alternative or intervening causes for the damages claimed by plaintiff); Bayne v. Provost, 359 F.Supp.2d 234, 238 (N.D.N.Y. 2005) (By commencing this action and seeking damages for medical injuries, plaintiff has placed his relevant medical condition at issue and waived any otherwise applicable physicianpatient privileges). Accordingly, plaintiff shall produce unlimited authorizations for release of medical records from all mental and physical treatment providers except that the authorization for release of records from mental health providers, her gynecologist and her endocrinologist may be limited from January 1, 2010 to the present.

Special Damages

Defendant moves to preclude plaintiff from offering evidence of lost wages and medical expenses following plaintiff's failure to supplement her initial disclosures and provide a detailed response to Interrogatory Nos. 11 and 12 seeking the amount of damages claimed for medical expenses and impairment of earning capacity or loss of future earnings and the basis for calculating such damages. Dkt. #12, pp. 6-7.

In response, plaintiff provided defendant with a calculation of her lost wages, which amounts to $223, 887.50 as of August 20, 2013. Dkt. #14, pp.5-7.

Defendant continues to seek preclusion and notes that plaintiff has yet to provide a calculation of medical expenses. Dkt. #16, pp.9-10.

To the extent that plaintiff seeks reimbursement of medical expenses, plaintiff shall provide defendant with a calculation of such expenses ...

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