The opinion of the court was delivered by: Richard L. Puglisi United States Magistrate Judge
MEMORANDUM OPINION AND ORDER REGARDING DISCOVERY LETTER BRIEFS
MEMORANDUM OPINION AND ORDER REGARDING DISCOVERY LETTER BRIEFS
Defendant State of Hawaii, Department of Transportation and Glenn
Okimoto, in his official capacity as Director of Department of
Transportation ("Defendants") and Plaintiff Elizabeth-Ann K. Motoyama
submitted letter briefs requesting expedited discovery assistance
pursuant to Local Rule 37.1 of the Local Rules of Practice for the
United States District Court for the District of Hawaii.*fn1
After carefully reviewing the submissions and relevant legal
authority, the Court orders as follows:
1. Release to Obtain Medical Records
Plaintiff claims that she suffers from depression, anxiety, diabetes, and dental disease as a result of the claims alleged in this lawsuit. See Pl.'s Depo. Tr. at 225-26, 241-42. Plaintiff has also named as expert witnesses in this case her primary care physician, treating psychiatrist, behavioral therapists, orthopedic surgeons, occupational health specialist, and physical therapist. See Docket No. 69 at 2-5. The Court finds that Plaintiff has put at issue in this case her mental and physical health. Pursuant to Rule 26(a)(1)(A)(iii), Plaintiff is required to make available documents which evidence her injuries. Therefore, Defendants are entitled to obtain the medical records regarding those injuries. Although it appears that Plaintiff has made multiple productions of various medical records, Defendants are entitled to subpoena the relevant records directly from Plaintiff's health care providers so that the documents obtained can be verified for purposes of admissibility.
The Court agrees, however, that the scope of the medical records requested should be reasonably limited in time and to protect Plaintiff's privacy rights. Although Plaintiff began her employment with Defendants in 2007, there is evidence that Plaintiff was seeking care prior to that time for issues that may be related to depression and anxiety. See Pl.'s Depo. Tr. at 228-30. Defendants are entitled to obtain medical records directly from Plaintiffs' providers for the time period from January 2002 to the present. The Court finds that this ten-year limitation is a reasonable compromise between Plaintiffs' privacy rights and Defendants' rights to obtain information related to Plaintiffs' potential pre-existing conditions. Additionally, the medical records obtained shall be used by the parties solely for the purpose of this case. Defendants are ORDERED to prepare a written release form limiting the request to documents from January 2002 to the present and submit it to Plaintiff within seven days following issuance of this Order. Plaintiff is ORDERED to sign the release and return it to Defendants within five days of receiving it.
2. Independent Medical Examination
Pursuant to Federal Rule of Civil Procedure 35(a)(1), a court may order "a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination." To justify an examination under Rule 35, Defendants must demonstrate that Plaintiff has placed her mental condition "in controversy," and "good cause" for the examination. Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). The Court finds that Defendants are entitled to require Plaintiff to submit to an independent medical examination ("IME"). First, as noted above, Plaintiff has put her mental condition at issue in this case. Second, in determining good cause, courts generally consider various factors including, the possibility of obtaining desired information by other means, whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is claiming ongoing conditions. Here, Plaintiff has identified several expert witnesses that she plans to call related to her medical conditions, her current mental and physical condition is relevant to damages in this case, and Plaintiff claims that her conditions are ongoing. Accordingly, Defendants have adequately demonstrated that Plaintiff should be ordered to submit to an IME.
The Court ORDERS that Plaintiff's IME take place before March 1, 2012, and last no longer than three hours. Plaintiff's request that the IME be spread out over several days if it lasts longer than one hour is not reasonable. Although the Court understands that Plaintiff has certain limitations on her time in the coming months, it is reasonable that she make herself available for a three-hour time period for the IME before March 1, 2012, given the upcoming expert disclosure deadlines. The Court ORDERS the parties to confer in writing and agree upon a date and time for the IME within the next seven days.
According to the Amended Rule 16 Scheduling Order dated December 14, 2011, Plaintiff's expert disclosures are not due until February 22, 2012; Defendant's are due March 22, 2012. See Docket No. 88. Although both parties' arguments regarding the necessary disclosures are premature, the Court will address those concerns in an effort to prevent future disputes on this issue. Before the Rule 16 Schedule Order was amended in mid-December, Plaintiff submitted expert disclosures under the prior scheduling order naming the following expert witnesses to testify regarding her medical conditions: Bryan T. Tanabe, M.D.; Michael V. McCanless, M.D.; Renee Nama Bells, Ph.D.; Miki Kurakaya, L.C.S.W.; David G. Mathews, M.D.; Mark D. Santi; Joseph D. Costanzo; Kacy M. Nekoba; and an unnamed expert in dental disease. See Docket No. 69 at 2-5.
The Court disagrees with Defendants' assertion that Plaintiff is required to provide reports from all of these experts. Under Federal Rules of Civil Procedure Rule 26(a)(2)(A), "a party must disclose to the other parties the identity of any witness it may use at trial to present [expert testimony]." Fed. R. Civ. P. 26(a)(2)(A). Rule 26(a)(2)(A)'s disclosure requirement applies to all witnesses providing expert testimony, including percipient witnesses with direct knowledge of the facts of the case. See Durham v. Cnty. of Maui, Civil No. 08-00342 JMS/RLP, 2011 WL 2532690, at *3-*4 (D. Haw. June 23, 2011) (citing Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004) ("even treating physicians and treating nurses must be designated as experts if they are to provide expert testimony")).
Rule 26(a)(2)(B) provides that the expert disclosure must also include a written report if the witness is specifically employed or retained to give expert testimony in the case. Fed. R. Civ. P. 26(a)(2)(B) (emphasis added). Generally, treating physicians are not "specifically employed or retained" for purposes of providing expert testimony. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 824 (9th Cir. 2011). However, "a treating physician is only exempt from Rule 26(a)(2)(B)'s written report requirement to the extent that his opinions were formed during the course of treatment." Id. at 826.
Here, the following experts appear to be treating health care providers: Bryan T. Tanabe, M.D.; Michael V. McCanless, M.D.; Renee Nama Bells, PhD.; Miki Kurakaya, L.C.S.W.; David G. Mathews, M.D.; Mark D. Santi; Kacy M. Nekoba. Accordingly, to the extent these witnesses' testimony is limited to opinions formed during the course of their treatment of Plaintiff, Plaintiff is not required to provide expert reports for those witnesses. To the extent these witnesses are to provide testimony regarding ...