Adkins et al v. CMH Homes Inc. et al, No. 3:2013cv32123 - Document 97 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 70 MOTION to Quash Subpoenas; denying 82 MOTION for a mental examination; denying 91 MOTION to Compel; however the Court Grants Defendants certain limited discovery into the issue of Plaintiff's d iagnosis of dementia and her competency at the time she executed a Power of Attorney in favor of her husband; the Court Grants Defendants leave to conduct limited discovery as outlined within this Order. Signed by Magistrate Judge Cheryl A. Eifert on 12/9/2014. (cc: attys; any unrepresented party) (skm)
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Adkins et al v. CMH Homes Inc. et al Doc. 97 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION W ILLIAM H OW ARD AD KIN S an d MARRIAN A. AD KIN S, Plain tiffs , v. Cas e N o .: 3 :13 -cv-3 2 12 3 CMH H OMES, IN C. d / b/ a FREED OM H OMES, e t al., D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court are three m otions related to Defendants’ attem pts to investigate an alleged diagnosis of early stage dem entia suffered by Plaintiff, Marrian Adkins and the associated issue of her m ental com petency, including Plaintiffs’ Motion to Quash Subpoenas, (ECF No. 70 ), Defendants’ J oint Motion for Mental Exam ination of Marrian Adkins, (ECF No. 82), and Motion of Defendant Vanderbilt Mortgage and Finance, Inc. to Com pel Answers to Interrogatories and Requests for Production of Documents. (ECF No. 91). For the reasons that follow, the Court GRAN TS the m otion to quash subpoenas, D EN IES the m otion for a m ental exam ination, and D EN IES the m otion to com pel. However, the Court GRAN TS Defendants certain lim ited discovery into the issue of Plaintiff’s diagnosis of dem entia and her com petency at the tim e she executed a Power of Attorney in favor of her husband. 1 Dockets.Justia.com I. Re le van t Facts In Novem ber 20 13, Plaintiffs filed the instant action regarding the purchase, financing, and warranty of a m obile hom e they bought from defendant CMH Hom es in 20 0 9. According to Plaintiffs, they were initially told they could purchase the hom e for $ 92,0 0 0 , without m aking a down paym ent, at an interest rate of 2.9% over a 30 year repaym ent period, and the hom e would com e with a one-year warranty. However, by the tim e the transaction was com pleted, Plaintiffs had paid $ 113,0 0 0 for the hom e, financed at an interest rate of 8.49%, and the hom e cam e without a warranty. They later learned that the total am ount they had financed was $ 136,498.21, which included m ore than $ 11,0 0 0 in settlem ent charges, and a discount fee of $ 5,239.74 that they claim was never explained to them , and they did not request. Plaintiffs allege that Defendants took advantage of their lim ited education and financial unsophistication. They assert claim s of unconscionable inducem ent; fraud as a contract defense; and joint venture. Plaintiffs seek actual, consequential, and incidental dam ages, civil penalties, attorneys’ fees, and equitable relief. In the course of discovery, Plaintiffs advised Defendants that Marrian Adkins had been recently diagnosed with early stage dementia. Therefore, out of an abundance of caution, Ms. Adkins decided to prepare a Power of Attorney authorizing her husband to pursue her rights in the instant action should her condition worsen. (ECF No. 59-1). Subsequently, Defendants took the deposition of Ms. Adkins, during which she testified that she was in the first stages of dem entia and suffered from long-term m em ory loss; however, she had not received any testing or treatm ent related to her condition. When asked questions regarding the 20 0 9 transaction that 2 form s the basis of the com plaint, Ms. Adkins was essentially unable to recall any details of her com m unications and contacts with Defendants’ representatives. She rem em bered a few large events, like visiting the m obile hom e lot, selecting a hom e with an open floor plan, and watching the installation of the m obile hom e on her property, but she had no independent m em ory of any salient details regarding the financial transaction. Based upon Ms. Adkins’s “near-com plete failure to recall the facts of the transaction at issue and concerns over Ms. Adkins’s com petency to proceed as a party litigant in her individual capacity in this civil action,” (ECF No. 81 at 1), Defendants served subpoenas on two of Ms. Adkins’s healthcare providers, St. Mary’s Medical Center and Dr. Ronald Brownfield, seeking all records relating to treatm ent rendered to Ms. Adkins “for dem entia or other conditions effecting [sic] m em ory, recollection, or cognition.” (See ECF No. 70 -1 at 1-10 ). In addition, Vanderbilt Mortgage and Finance, Inc. filed Interrogatories and Requests for Production of Docum ents seeking the nam es of all health care providers rendering diagnosis or treatm ent to Ms. Adkins for dem entia or sim ilar issues in the last ten years, and the nam es of all m edications she is taking or was taking for those conditions, as well as the supporting docum entation. The parties m et and conferred regarding the subpoenas, and when they could not agree, Plaintiffs filed the instant m otion to quash. Plaintiffs contend that Defendants’ continued efforts to obtain Ms. Adkins’s m edical records are not m ade in good faith. Instead, Defendants are trying to em barrass and oppress Ms. Adkins. Plaintiffs m ake sim ilar objections to the discovery requests of Vanderbilt Mortgage and Finance, Inc., giving rise to the m otion to com pel. In a third approach aim ed at 3 obtaining inform ation about Marrian Adkins’s dem entia, Defendants have also m oved the Court for an order under Federal Rule of Civil Procedure 35 com pelling Ms. Adkins to subm it to an independent m edical examination by a neuropsychologist to determ ine her com petency to execute a Power of Attorney, to litigate the instant action, and to testify at trial. (ECF No. 82 at 2). Not surprisingly, Plaintiffs oppose such an order, contending that Defendants’ purpose in subjecting Ms. Adkins to an unnecessary psychological examination is to discourage her from pursuing the lawsuit. Plaintiffs argue that they subm itted a statem ent from Ms. Adkins’s fam ily physician, Dr. Brownfield, verifying that she was com petent at the tim e she executed the Power of Attorney. Accordingly, if Ms. Adkins becom es incom petent during the pendency of the action, Mr. Adkins is authorized to pursue and resolve the litigation on her behalf. For that reason, they dispute that Defendants have any valid reason to collect Ms. Adkins’s records, ask questions regarding her health, or insist that she undergo an exam ination. II. Re le van t Le gal Prin cip le s Federal Rule of Civil Procedure 45(d) sets forth the protections available to a person subject to or affected by a subpoena. In particular, Rule 45(d)(3) outlines when a court m ust quash or m odify a subpoena, when it m ay do so, and when the court m ay direct com pliance under specified conditions. As a general rule, “only the party or person to whom the subpoena is directed has standing to m ove to quash or otherwise object to a subpoena.” Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 590 (D.Kan. 20 0 3) (citation om itted). However, an exception exists when the person objecting has a personal right or privilege in the inform ation sought by the requester. Singletary v. Sterling Transport Com pany , Inc., 289 F.R.D. 237, 239 4 (E.D.Va. 20 12). Although the subpoenas in this case are directed to St. Mary’s Medical Center and Dr. Brownfield, the Court finds as a prelim inary m atter that Ms. Adkins has the requisite standing to m ove for their quashal. Clearly, Ms. Adkins has a personal right or privilege in the confidential inform ation contained in her m edical records, and thus a corresponding right to m ove to quash subpoenas duces tecum seeking those records. When a subpoena issues under Rule 45 for the purpose of discovery, “Rule 45 adopts the standard[s] codified in Rule 26.” Schaaf v. Sm ithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 20 0 5). In other words, a subpoena used for discovery m ust com ply with the scope and lim its of discovery set forth in Rule 26, and m ay be quashed or m odified for the sam e reasons that would support a protective order under Rule 26. HDSherer LLC v . Natural Molecular Testing Corp, 292 F.R.D. 30 5, 30 8 (D.S.C. 20 13). In this context, a subpoena m ay be used to discover “any nonprivileged m atter that is relevant to any party’s claim or defense ... if the discovery appears reasonably calculated to lead to the discovery of adm issible evidence.” Fed. R. Civ. P. 26(b). “The scope of relevancy under the discovery rules is broad, such that relevancy encom passes any m atter that bears or m ay bear on any issue that is or m ay be in the case.” Carr v. Double T Diner, 272 F.R.D. 431, 433 (D.Md.). For purposes of discovery, inform ation is relevant, and thus discoverable, if it ‘“bears on, or ... reasonably could lead to other m atter[s] that could bear on, any issue that is or m ay be in the case. Although ‘the pleadings are the starting point from which relevancy and discovery are determ ined ... [r]elevancy is not lim ited by the exact issues identified in the pleadings, the m erits of the case, or the adm issibility of discovered inform ation.’ Rather, the general subject m atter of the litigation governs the scope of 5 relevant inform ation for discovery purposes.” Kidw iler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D.W.Va. 20 0 0 ) (internal citations om itted). Sim ply because inform ation is discoverable under Rule 26, however, “does not m ean that discovery m ust be had.” Schaaf, 233 F.R.D. at 453 (citing N icholas v. W y ndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 20 0 4)). Discovery that seeks relevant inform ation m ay nevertheless be restricted or prohibited pursuant to a Rule 26(c) m otion when necessary to protect a person or party from annoyance, em barrassm ent, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). Moreover, with or without a m otion, the court m ay lim it the frequency and extent of discovery when the “burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the am ount in controversy, the parties’ resources, the im portance of the issues at stake in the action, and the im portance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii). The protections conferred by Rule 26 are incorporated in Rule 45(d)(3), which sets forth additional grounds for quashing, m odifying, or m olding the term s of a subpoena. HDSherer LLC, 292 F.R.D. at 30 8 (“Rule 45 does not list irrelevance or overbreadth as reasons for quashing a subpoena. However, the scope of discovery allowed under a subpoena is the sam e as the scope of discovery allowed under Rule 26.”) (citing Cook v. How ard, 484 Fed.Appx. 80 5, 812 (4th Cir. Aug. 24, 20 12) (“Although Rule 45(c) sets forth additional grounds on which a subpoena against a third party m ay be quashed[,] ... those factors are co-extensive with the general rules governing all discovery that are set forth in Rule 26.”)); see also Firetrace USA, LLC v. Jesclard, No. cv– 0 7– 20 0 1, 20 0 8 WL 5146691, at *2 (D.Ariz. Dec. 8, 20 0 8) (“According to its 1991 Advisory Com m ittee Notes, Rule 45 [(d)](3) ‘tracks the provisions of Rule 26(c).’ 6 Fed. R. Civ. P. 45. In this way, Rules 45 and 26 are not m utually exclusive, but rather cover the sam e ground.”) Here, Defendants seek m edical records pertaining to Plaintiff Marrian Adkins. While m edical records are not “privileged” under West Virginia law, and consequently are subject to discovery, the Suprem e Court of Appeals of West Virginia has recognized that m edical records are, by their very nature, highly confidential and entitled to special protection from unfettered release. Keplinger v. Virginia Elec. and Pow er Co., 20 8 W.Va. 11, 23, 537 S.E.2d 632, 644 (20 0 0 ). Therefore, even when a plaintiff’s m edical condition is placed at issue in a West Virginia action (i.e. is relevant), it does not autom atically follow that the defendant is entitled to collect all of the plaintiff’s m edical records. Rather, the defendant is perm itted only to obtain those records pertaining to the condition that has been placed at issue. Id. (“While we acknowledge that a person who has filed a civil action that places a m edical condition at issue has im pliedly consented to the release of m edical inform ation, this im plied consent involves only m edical inform ation related to the condition placed at issue. In this regard, we stated in Kitzm iller that ‘the absence of [a physician-patient] privilege contem plates the release of m edical information only as it relates to the condition a plaintiff has placed at issue in a lawsuit; it does not efface the highly confidential nature of the physician-patient relationship that arises by express or im plied contract’”). Sim ilarly, the federal governm ent, appreciating the need to regulate the release of electronically-stored and transm itted m edical inform ation, im plem ented the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Pub. L. 10 4-191. HIPAA applies to m ost health care providers, 45 C.F.R. §§ 160 .10 2(a)(3), 7 160 .10 3, and governs the use and disclosure of individually identifiable health inform ation, also called “protected health inform ation” Id. at § 160 .10 3. Under HIPAA’s Privacy Rule, health care providers m ay disclose protected health inform ation for judicial proceedings as long as they m eet certain requirem ents that reduce the risk of m isuse, as well as unintended and unnecessary re-disclosures. 45 C.F.R. § 164.512(e)(1)(i)-(vi). Like the West Virginia Suprem e Court, HIPAA prom otes a standard of disclosing only the protected health inform ation necessary to achieve the purpose underlying the disclosure. Defendants additionally seek an order com pelling Ms. Adkins to subm it to an independent m edical exam ination under Fed. R. Civ. P. 35. Rule 35 authorizes the court to order a party “whose m ental or physical condition ... is in controversy to subm it to a physical or m ental exam ination by a suitably licensed or certified exam iner.” The order m ay only issue on good cause and adequate notice and “m ust specify the tim e, place, m anner, condition, and scope of the exam ination, as well as the person or persons who will perform it.” Fed.R.Civ.P. 35(a)(2). The law is wellsettled that the “in controversy” and “good cause” requirem ents of the Rule are not m ere form alities; rather, they m ust be m et with “an affirm ative showing by the m ovant that each condition as to which the exam ination is sought is really and genuinely in controversy and that good cause exists for ordering each particular exam ination.” Schlagenhauf v. Holder, 379 U.S. 10 4, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). III. D is cu s s io n Defendants argue that they should be perm itted to obtain Ms. Adkins’s m edical records and com pel her to undergo a psychological exam ination because her 8 m ental com petency “has becom e a central issue in the continued prosecution of this litigation.” (ECF No. 81 at 3). In support of their position, Defendants rely on three points. First, Ms. Adkins claim s to have a diagnosis of early stage dem entia. Second, at her deposition, Ms. Adkins could not recall any details of the 20 0 9 financial transaction that form s the basis of her com plaint against Defendants. Third, even though Ms. Adkins previously signed a Power of Attorney that allows her husband to prosecute this litigation on her behalf, Defendants are not persuaded by the hearsay statem ent of Ms. Adkins’s physician that she was com petent to sign the Power of Attorney. Having reviewed Ms. Adkins’s deposition testim ony, the undersigned disagrees with Defendants that Ms. Adkins has placed her mental com petency at issue, such that Defendants are entitled to subpoena her m edical records, or obtain detailed discovery regarding her m edical treatm ent. Moreover, the undersigned finds no good cause basis to order Ms. Adkins to subm it to a psychological exam ination. Ms. Adkins testified that she was told by an Em ergency Room physician that she had “the beginnings of dem entia.” (ECF No. 81-1 at 2). She reported this to her fam ily physician, Dr. Ronald Brownfield, but he did not test or treat her for dem entia. According to Ms. Adkins, Dr. Brownfield wants to focus on som e of her other m edical conditions first, like spinal stenosis, a back condition for which she is scheduled to have surgery. (Id. at 2-3). Nevertheless, in light of the diagnosis of early stage dem entia, Ms. Adkins requested that Dr. Brownfield confirm in writing that she was com petent to select a Power of Attorney and Medical Power of Attorney, and she had both docum ents prepared so that her husband would be able to m ake decisions for her if necessary. (Id.) This testim ony does not suggest any m edical basis to question 9 Ms. Adkins’s com petency. If Ms. Adkins’s dem entia had progressed to a stage severe enough to affect her capacity to appreciate her surroundings, understand what is being said to her, and m ake inform ed decisions, her fam ily physician would have undertaken to test and treat her. He certainly would not have written a note saying she was com petent to m ake im portant choices affecting her future financial and health care decisions. When asked if she was having trouble rem em bering things, Ms. Adkins testified that she did have som e trouble with her long-term m em ory, but not with her short-term m em ory. (Id. at 4). Ms. Adkins answered the rest of the questions posed to her at the deposition. She had very little m em ory of the conversations and paperwork related to the financial transaction at issue in this litigation, but recalled other events and inform ation from the past; such as, the nam e of her high school; that a hurricane destroyed the m obile hom e she lived in with her first husband; the num ber of years, m onths, and days she was m arried to her first husband; what she did with land she inherited in Elliott County, Kentucky; that she and Mr. Adkins were looking at m obile hom es in 20 0 9 because their hom e was too sm all and was deteriorating; that she im m ediately liked the open floor plan of the hom e they selected; and that the financing rate was 2.9 percent. (Id. at 5-7). She also rem em bered the m ore pleasant aspects of the transaction involving the Defendants. She testified about seeing the m obile hom e on the lot, and being happy when she saw the hom e com ing down the street to be delivered. She spoke about how nice the workers were that installed the m obile hom e on her property and how well they laid the carpet in the hallway. Ms. Adkins also recalled an early problem with the kitchen faucet in the hom e. (Id. at 14-15). She recognized her signature on the loan papers 10 and adm itted that she had signed them . Ms. Adkins rem em bered being at the closing, and the attorneys hurrying to finish the paperwork, although she did not recall m uch about the paperwork itself. (ECF No. 81-1 at 10 -11, 14, 15). Although Ms. Adkins was unable to provide details about the business aspects of a m obile hom e purchase that occurred m ore than five years earlier, nothing about her testim ony raises a “substantial concern with regard to [her] m ental ability to rationally com prehend and accept m atters relating to the present litigation.” State ex. rel. McMahon v. Ham ilton, 482 S.E.2d 192, 199 (W.Va. 1996). She clearly understood the purpose for executing a Power of Attorney and the essence of her claims against the Defendants. (ECF No. 81-1 at 3, 12). While Ms. Adkins’s m em ory of the financial transaction m ay be im paired due to early stage dementia, it is equally as plausible that her poor m em ory sim ply reflects a lack of interest or understanding in the financial details at the tim e of the transaction. Defendants also contend that the validity of the Power of Attorney is at issue given that Ms. Adkins’s com petency at the tim e she signed it is unsubstantiated. They com plain that the statem ent supplied by Dr. Brownfield confirm ing Ms. Adkins’s com petency is unauthenticated and inadm issible hearsay that cannot be relied upon in court. (ECF No. 59-1 at 1). The statem ent is written on a prescription pad; the signature is essentially illegible; and neither the statem ent nor the signature is verified. In addition, Defendants have not been provided with any factual basis to support Dr. Brownfield’s conclusion that Ms. Adkins was com petent. Given that Ms. Adkins’s com petency is essential to the validity of the Power of Attorney, and the Power of Attorney m ay be crucial to a resolution of this litigation, Defendants argue that they are entitled to have Ms. Adkins tested to confirm that she is and was 11 com petent to appoint her husband as her Power of Attorney in this case. Considering that the issue of com petency has arisen due to Ms. Adkins’s representation that she has early stage dem entia, and Defendants have som e interest in confirm ing that the Power of Attorney is valid, the Court GRAN TS Defendants leave to conduct lim ited discovery on the issue as follows: 1. Within th irty ( 3 0 ) d ays of the date of this Order, Plaintiffs are ORD ERED to provide Defendants with a copy of Ms. Adkins’s m edical records, if any, from the Em ergency Departm ent of St. Mary’s Medical Center and Dr. Ronald Brownfield, which reflect the diagnosis, testing or treatm ent of dem entia or a sim ilar disorder of the brain affecting m em ory. Defendants are prohibited from using or disclosing the m edical records other than in connection with the instant litigation; and 2. Defendants are granted leave to take Dr. Brownfield’s deposition on the issue of Ms. Adkins’s com petency at the tim e she executed the Power of Attorney. The parties shall agree on a m utually convenient date and tim e for this deposition and shall com plete it prior to the deadline for Rule 26(a)(3) disclosures. The Clerk is directed to provide a copy of this Order to counsel of record. EN TERED : Decem ber 9, 20 14 12
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