Protective Order for Medical Records Granted by Court for Witness with Dementia: eDiscovery Case Law

In Strong v. Honeywell Int’l, Inc., No: 2:20-CV-136-RMP (E.D. Wash. Sept. 27, 2021), Washington District Judge Rosanna M. Peterson granted the plaintiff’s Motion for Protective Order for medical records regarding deceased witness Terry Strong and denied the defendant’s Motion to Exclude Product Identification Testimony of Terry Strong, finding that the parties satisfied the meet and confer requirement, that the defendant’s request for the medical records was untimely and that the defendant failed to show that the plaintiff “actually controls or possesses the documents sought.”

Case Background

In this case involving alleged asbestos exposure resulting in decedent Matthew Strong’s peritoneal mesothelioma which was brought by the plaintiff (individually and as Administrator of the Estate of Matthew Strong), Matthew Strong’s father, Terry Strong, sat for a perpetuation deposition in September 2019 in the event that he was unable to testify at trial.

Terry Strong was diagnosed with early-onset vascular dementia three weeks before the deposition and described his dementia as affecting his short-term memory and admitted that he might lose his train of thought when answering questions but stated that his long-term memory was “perfect.” During the deposition, Terry Strong testified that he performed numerous Bendix brake replacements both in his son’s presence and later with his son’s assistance, provided detailed testimony about his process for performing brake replacements and other types of car repairs and confirmed that he used Bendix-brand brakes for these different jobs on a consistent basis.

In May 2020, Terry Strong died. Discovery in this case closed on April 30, 2021, but the defendant claimed that it first learned of Terry Strong’s death in August 2021, prompting the defendant to request Terry Strong’s official death certificate and medical records related to his dementia, pursuant to Federal Rule of Civil Procedure 26. The parties conferred about the records requested and the plaintiff moved for a protective order for medical records related to Terry Strong. In turn, the defendant moved to exclude Terry Strong’s product identification testimony, arguing that his dementia made him an incompetent witness, or alternatively requested a preliminary competency hearing for the now-deceased Terry Strong.

Judge’s Ruling

In considering the meet and confer requirement, Judge Peterson stated: “Defendant concedes that the parties generally discussed its request for Terry Strong’s medical records and death certificate…Nevertheless, Defendant argues that Plaintiff did not properly comply with the meet-and-confer requirement of Fed R. Civ. P. 26(c) because Plaintiff made no mention of her intention to file a protective order the following day…However, Defendant cites no authority that suggests parties must do more than generally confer to resolve their dispute. Nor does the text of Fed. R. Civ. P. 26(c) require notice of pending motions prior to their filing…Therefore, the Court finds that the parties satisfied the meet-and-confer requirement by telephonically discussing Defendants’ request for Terry Strong’s medical records on August 23, 2021.”

With regard to the timeliness of the request, Judge Peterson stated: “Plaintiff compellingly argues that the discovery sought is both irrelevant and untimely at this stage. At his deposition, Terry Strong described his recent dementia diagnosis as impacting his “short-term” memory, specifically…In reviewing the record, he recounted memories from decades prior, including his experience performing numerous brake repairs…Defendant makes no showing that medical records documenting any progression of Terry Strong’s dementia prior to his death would undermine the accuracy of his deposition testimony, which he gave just three weeks after his initial diagnosis. Nor does Defendant offer a persuasive explanation for why its recent discovery of Terry Strong’s death supports additional discovery when Terry Strong disclosed his diagnosis at the deposition. Defendant had notice of Terry Strong’s dementia diagnosis more than one year before discovery closed in this case. However, Defendant did not request his medical records during that time.”

Judge Peterson also stated: “Lastly, Defendant fails to support its claim that Plaintiff actually controls or possesses the documents sought…Even assuming that Plaintiff’s Counsel represented Terry Strong during his deposition approximately two years ago, that does not demonstrate that counsel has legal access to the medical records of a former client who has since died. Therefore, the Court finds good cause exists to issue the protective order” and she granted the plaintiff’s Motion for Protective Order for medical records. Judge Peterson also rejected the defendant’s motion to exclude Terry Strong’s testimony, finding: “Under Washington law, Terry Strong is presumed to be a competent witness. In reviewing his deposition testimony, this Court is not persuaded otherwise.”

So, what do you think? Do you agree that the plaintiff’s Motion for Protective Order for medical records should have been granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. And check out Kelly Twigger’s discussion of the case here!

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