Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00125-JJF-MPT Document 111 Filed 06/06/2005 Page 1 of 4
0r.R OBERMAYER
M H REBMANN MAXNVELL & HIPPEL rrp
Attorneys At Law
Kimberly D. Sutton, Esquire Suite 300
E-mail address [email protected] 20 Brace Road
Member of NJ and PA Bar Cherry Hill, NJ 08034-2634
1= ass-195-3200
F ssc-795-sm
WWW.Ob€HH3yEf.C0m
site No. 4l 104-001
June l, 2005
Via UPS Next Day
SEALED CONFIDENTIAL DOCUMENT
NOT TO BE FILED OF RECORD
The Honorable Mary Pat Thynge, U.S.M.J .
United States District Court
For the District of Delaware
844 N. King Street
Lock Box 8 — Room 4209
Wilmington, DE 19801
Re: Andrea L. Spoltore, f/kia Andrea L. Cadwallader v.
Wilmington Professional Associates, Inc.
Docket No.: 04-125 JJF
Dear Magistrate Judge Thynge;
In accordance with the Order dated May ll, 2005, we have enclosed herewith, for an in
camera review, the following confidential medical records which are being provided under
seal:
1. Documents from Meadowwood Hospital, bate stamped Nos. MH0001 to
MHOO83.
2. Documents from Rockford Center, bate stamped RC000l to RC0096.
We have not been provided with the documents from Father Martin’s' Ashley. Shortly
after service of the Subpoena upon Father Martin Ashley, we were contacted by that facility,
who advised that the Subpoena that the Defendant served on it (a) did not comply with
Maryland’s Statute governing the release of confidential medical records, MD ADC
l3A.l1.06.1l; and (b) there was no indication in the Order that the provisions of 42 U.S.C. S
290dd—2 were complied with in the Order and Subpoena that it received. Indeed, Defendants did
not provide any of the treatment facilities with notice of the Defendant’s application for
disclosure of the records, and indeed, no motion was even filed by Defendant. Nor did Defendant
provide any competent proofs that demonstrate that there was "good cause" to order production
Over a Century of Solutions
szszoz
Philadelphia Harrisburg Pittsburgh Cherry Hill Vineland Vt/ilmington
Penrisylvartia Pennsylvania Pennsylvania New Jersey New Jersey Delaware

Case 1:04-cv-00125-JJF-MPT Document 111 Filed 06/06/2005 Page 2 of 4
OBERMAYER REBMANN MAXVVELL & HIPPEL
The Honorable Mary Pat Thynge, U.S.M.J.
United States District Court
June l, 2005
Page 2
of the documents. We understand that counsel for Father Martin Ashley is presently reviewing
the subpoena andthe accompanying Order.
In the meantime, we again object to the production of any of the enclosed medical
records to Defendant, on the basis that there is no “good cause" for disclosure under either Fed.
R. Civ. Pro. 26(a), since they were never provided to the Plaintiffs treating physician, Dr.
Jackovic or to Plaintiff s expert, Dr. Kaye; and (b) they are privileged and protected from
disclosure by Title 42 U.S.C. § 29Udd-2(a). Under that Federal Statute, disclosure of the
confidential treatment records is authorized only: l) when the patient consents; 2) to medical
personnel to the extent necessary to meet a bona fide medical emergency; 3) to qualified
personnel for the purpose of conducting scientific research, management audits, financial audits,
or program evaluation, but such personnel may not identify, directly or indirectly, any individual
in any report if such research, audit, or evaluation, or otherwise disclose patient identities in any
manner; and 4) if authorized by an appropriate order of a court of competent jurisdiction granted
after application showing good cause therefore, including the need to avert a substantial risk of
death or serious bodily harm. 42 U.S.C. S 290dd-2(b).
In the latter instance, the court must make a finding of good cause before ordering
disclosure. Section 290dd-2(b)(2)(C). In assessing good cause, the court is directed to weigh the
public interest and the need for disclosure against the injury to the patient, the physician—patient
relationship, and to the treatment services. Upon the granting of such order, the court, in
determining the extent to which any disclosure of all or any part of any record is necessary, shall
impose appropriate safeguards against unauthorized disclosure. Section 290dd-2(b)(2)(C). The
regulations go on to provide that "[a] court order under these regulations may authorize
disclosure of confidential communications made by the patient to a program in the course of
diagnosis, treatment, or referral for treatment only if" one of three conditions is met: (l) a threat
to life or limb, or of child abuse; (2) prosecution of "an extremely serious crime" such as
homicide, rape, or assault; or (3) litigation "in which the patient offers testimony or other
evidence pertaining to the content of the confidential communications." 42 C.F.R. § 2.l3(a), §
2.63(a)(l), (2), (3). Finally the regulations define "records" as "any information, whether
recorded or not, relating to a patient" that was received or acquired by the facility in the course
oftreatment. Lt; § 2.12.
Here, Defendants have not demonstrated good cause, as required by Section 290dd-
2(b)(2)(C), for the production of any of the documents from any of the three treating facilities.
Prior to the time that the Defendant made its formal application for release of the confidential
treatment records, it had deposed the Plaintiff, her treating physician, Dr. Jackovic and her
psychiatric expert, Dr. Kaye, during which the Defendant explored the Plaintiff’s medical
conditions for ten years prior to her termination, at the time of her termination, and for the two
year period following her termination. Defendant was also provided with the confidential
medical records that had been provided to Dr. Kaye and Dr. Jackovic that concern the Plaintiffs
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OBERMAYER REBMAN N MAXWELL & HIPPEL
The Honorable Mary Pat Thynge, U.S.M.J.
United States District Court
June 1, 2005
Page 3
current medical condition before it informally requested that the confidential medical records
from the facilities where Plaintiff recently obtained treatment be disclosed. Thus, the Defendant
had in its possession all the documentation that was needed to obtain an expert opinion on
relevance, to provide the required "good cause" for production under the Federal Statute. Yet,
Defendants did not produce any qualified opinions, and rather, its counsel simply stated that it
hopes that something in those documents may somehow be relevant to this action. That
unsupported allegation does not satisfy the strict requirements for disclosure of confidential
treating documents under 42 U.S.C. § 290dd·2(b)(2)(C).
Defendants’ strategy, of attempting to obtain Plaintiffs medical records from May 2004
forward, so that it can obtain retrospective expert testimony as to the Plaintiff s medical
condition at the time her employment was terminated by Defendant, in March 2002, has long
been rejected as speculative. LSE Goomar v. Centennial Life Ins. Co., 855 F .Supp. 319, 326-327,
(S.D. Cal. 1994), affd 76 F3d. 1059 (9m Cir. 1996); Benchmaster, Inc. v. Kawaelde, 107 F.R.D.
752 (E.D.Mich.l985). Indeed, it has long been recognized that retrospective expert testimony
regarding the existence or onset of a mental illness is inadmissible speculation. Id; gag gig
Coca-Cola Bottling Co. v. Torres, 255 F .2d 149 (lst Cir.l958); Bruce v. Estelle, 536 F.2d 1051,
1057 (5th Cir.l976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1976); Cormer
v. Wingo, 429 F.2d 630, 637 (6th Cir.l970), cert. denied, 406 U.S. 921, 92 S.Ct. 1779, 32
L.Ed.2d 121 (1972).
In Goomar v. Centennial Life Ins. Co., 855 F.Supp. at 326-327, the Court barred two
experts from providing their opinions that the Plaintiff suffered from a psychotic condition in
1984, when it was undisputed that Plaintiff did not seek medical care for that condition until
September 1989; no medical records existed which showed the existence of a psychotic
condition prior to that date. The court found that in order for the expert’s opinions to be
admissible, the expert’s knowledge', must be based on more than subjective belief or
unsupported speculation" ld; The court found that the expert’s retrospective analysis of the
Plaintiff s emotional condition in 1984, which was based on medical records from 1989 and the
Plaintiff s own testimony, that was provided years later, constituted unsupported speculation, and
thus, was properly excluded.
Likewise, in Benchmaster, the Plaintiff alleged that Defendants had extorted money from
him between 1972 and 1982 by overcoming his will. The Defendants filed a motion to compel
the Plaintiff to submit to a mental examination to detennine whether, in fact, the Plaintiffs will
was overcome during the ten-year period. The magistrate denied the motion, finding that the
results of such an examination would probably be inadmissible at trial. Benchmaster, 107
F.R.D. at 753. On appeal the district court affirmed the magistrates decision, finding that a
psychiatrist‘s opinion regarding the Plaintiffs mental state ten years earlier would be
inadmissible speculation. The court stated: "[A] psychiatrist would not be able to assist the fact
finder in determining whether a person suffered, rather than suffers from, an emotional distress
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Case 1:04-cv-00125-JJF-MPT Document 111 Filed 06/06/2005 Page 4 of 4
OBERMAYER REBMANN MAXWVELL & HIPPEL
The Honorable Mary Pat Thyngc, U.S.M.J.
United States District Court
June 1, 2005
Page 4
or disturbance and, if so, the cause of that emotional suffering." gl, at 754. The Benchmaster
Court therefore concluded that psychiatric testimony concerning the Plaintiffs emotional state
during the years 1972 through 1982 would be speculative. The court found that the requested
psychiatric examination would provide relevant information only as to the Plaintiff s current
psychiatric condition. [gl;
As in Benchmaster, the Defendanfs proclaimed "need" for the confidential medical
records from a hospitalization that took place in late 2004 to early 2005, so that they can have an
expert perform a retrospective evaluation of the Plaintiffs mental condition in March 2002, at
the time of her termination, would be based on speculation. As in Goomar v. Centennial Life Ins.
Qg., no medical records exist which show the existence of the subject medical condition prior to
the time that Plaintiff was discharged her from her employment in March 2002. Plaintiffs expert
found, based on the medical records that were produced, that the psychiatric condition that
Plaintiff suffered from as a result of her termination was short lived, and that by approximately
September 2002, the symptoms had improved to the point where the diagnosis could no longer
be supported. After that date, the Plaintiff suffered the "garden variety" type of emotional
distress that is associated with the discriminatory and retaliatory actions of the Defendant.
Plaintiffs expert has opined that the subject medical condition that arose in May 2004, was not
caused by her employment termination in March 2002. Defendant has not produced any
competent evidence to refute that opinion.
Thus, Defendants have failed to make any evidentiary showing that demonstrates that
"good cause" exists under 42 U.S.C. § 290dd-2(b)(2)(C) to authorize Defendants to obtain any
the confidential medical records concerning the Plaintiffs treatments at the facilities, from May,
2004 to present. Defendants’ counsel’s proclaimed assertion that the Plaintiffs current mental
status may somehow be relevant to the issues in this case is not supported by any facts, or any
expert opinion, and is based solely on speculation. Thus, 42 U.S.C. § 290dd—2(b)(2) precludes
the disclosure of any of the confidential medical records to Defendants. It is respectfully
requested that none of the requested documents be released to Defendants in this case.
Thank you for Your Honor’s attention to this matter.
Respectfully yours,
/s/
KIMBERLY D. SUTTON (KS8229)
KDS/pjs
Enclosures
c: Laurence V. Cronin, Esquire (w/o Encls.)
Andrea L. Spoltore (w/o Encls.)
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