[Cite as Csonka-Cherney v. ArcelorMittal Cleveland, Inc., 2014-Ohio-836.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100128




                       MARY JO CSONKA-CHERNEY
                                                           PLAINTIFF-APPELLANT

                                                    vs.


        ARCELORMITTAL CLEVELAND, INC., ET AL.
                                                           DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-793274

        BEFORE:           Boyle, A.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                           March 6, 2014
ATTORNEYS FOR APPELLANT

Melisa M. Mazanec-Fisco
Chastity L. Christy
Caryn M. Groedel
Caryn Groedel & Associates
31340 Solon Road
Suite 27
Cleveland, Ohio 44139

ATTORNEYS FOR APPELLEES

Lisa A. Orlando
Suellen Oswald
Littler Mendelson, P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
MARY J. BOYLE, A.J.:

       {¶1} Plaintiff-appellant, Mary Jo Csonka-Cherney, appeals from a trial court

judgment granting the motion to compel discovery of defendants-appellees,

ArcelorMittal Cleveland, Inc., Terry Fedor II, and Al Barosphy (collectively

“defendants”). Csonka-Cherney raises two assignments of error for our review:

       1.      The trial court erred in granting appellees’ motion to compel
               discovery relating to appellant’s medical information.

       2.      The trial court erred by refusing to conduct an in camera inspection
               prior to granting appellees’ motion to compel appellant’s medical
               records.

       {¶2} We find merit to Csonka-Cherney’s arguments and reverse and remand to

the trial court.

                       Procedural History and Factual Background

       {¶3} In October 2012, Csonka-Cherney brought a complaint against defendants

for gender discrimination, sexual harassment, and constructive discharge.        In each

count, she sought damages for, inter alia, “lost wages and mental anguish.”

Csonka-Cherney further requested, as part of her “Prayers for Relief,” that the court

order defendants “to make plaintiff whole by providing compensation for a violation of

her civil rights, emotional distress, and punitive damages in an amount in excess” of

$25,000.

       {¶4} Defendants timely answered Csonka-Cherney’s complaint and served their

first set of discovery requests on her in December 2012. Csonka-Cherney provided
discovery responses in April 2013, with the exception of certain objections relating to the

discovery of her medical records (she also challenged other discovery requests, but they

are not relevant to this appeal). Specifically, Csonka-Cherney finds issue with the

following requests from defendants:

       Interrogatory No. 14. Since plaintiff claims emotional injuries as a
       result of defendants’ allegedly unlawful conduct, identify all persons
       responsible for treating plaintiff for such injuries, any hospital or facility
       where such treatment was received, and the dates of treatment.

       Interrogatory No. 15. Since plaintiff claims emotional injuries as a
       result of defendants’ allegedly unlawful conduct, identify all persons,
       including physicians, psychologists, social workers, counselors, or other
       health care professionals who have examined plaintiff or from whom
       plaintiff has sought evaluation or treatment for any behavioral, emotional,
       mental, psychiatric and/or psychological conditions (whether or not
       diagnosed) in the last ten years, including the dates of treatment and the
       condition for which treatment or evaluation was provided or sought.

       Document Request No. 27. A separate executed authorization for the
       release of plaintiff’s medical and psychological/psychiatric records for
       each health care provider or other individual and/or entity identified in
       plaintiff’s answers to Nos. 14 and 15 of defendants’ first set of
       interrogatories to plaintiff.     For plaintiff’s convenience, release
       authorization forms are attached.

(Emphasis is Csonka-Cherney’s.)

       {¶5} The parties attempted to resolve their differences relating to the above

requests, but failed to do so. Subsequently, defendants moved to compel discovery of

Csonka-Cherney’s medical records, arguing that she placed her emotional condition

squarely at issue by filing her complaint, alleging that she suffered “mental anguish” and

“emotional distress,” and seeking damages for it.
          {¶6} Csonka-Cherney opposed defendants’ motion to compel. She argued that

her medical records were privileged and confidential, and not causally or historically

related to the issues in her case. She further argued that defendants’ discovery requests

were overly broad and not reasonably calculated to lead to the discovery of admissible

evidence. In the alternative, Csonka-Cherney moved for an in camera inspection of her

medical records “to determine which, if any, of the requested documents and/or

information are relevant and/or discoverable in this matter.”

          {¶7} In its judgment entry granting defendants’ motion to compel, the trial court

stated:

          The court has reviewed the proposed protective order and finds that, with
          the inclusion of paragraph 9, it provides substantial protection for any
          confidential information. The parties may file motions in limine as to the
          admissibility of documents designated “confidential.”        Defendant’s
          motion to compel discovery * * * is granted subject to the court’s
          protective order, attached.

          {¶8} Paragraph 9 of the court’s protective order states:

          Use of Confidential Documents or Information at Trial. Nothing in
          this order shall be deemed to preclude the admission into evidence any
          CONFIDENTIAL information or documents. Nor does any party waive
          the right to object to the use, relevance, or admissibility at trial of any
          discovery material, whether or not it is designated CONFIDENTIAL. If a
          party intends to present at trial CONFIDENTIAL documents or
          information derived therefrom, such party shall provide advance notice to
          the other party at least five (5) business days before the final pretrial
          conference by identifying the documents or information at issue as
          specifically as possible (i.e., by Bates number, page range, deposition
          transcript lines, etc.) without divulging the actual CONFIDENTIAL
          documents or information. The court may thereafter make such orders as
          are necessary to govern the use of such documents or information at trial.
       {¶9} It is from this judgment that Csonka-Cherney appeals, arguing in her two

assignments of error that the trial court erred in granting defendants’ motion to compel

regarding her medical records, and erred by refusing to conduct an in camera inspection

of her medical records to determine if they are causally or historically relevant to the

issues in the case. We find that Csonka-Cherney’s issues are interrelated, and thus, we

will address them together.

       {¶10} We further note that although this is an interlocutory appeal, an order

compelling the production of allegedly privileged documents to an opposing party is a

final appealable order. Pinnix v. Glassman, Inc., d.b.a. Marc’s, 8th Dist. Cuyahoga

Nos. 97998 and 97999, 2012-Ohio-3263, citing Cobb v. Shipman, 11th Dist. Trumbull

No. 2011-T-0049, 2012-Ohio-1676, ¶ 34-35; R.C. 2505.02(A)(3) and 2505.02(B)(4).

                                    Standard of Review

       {¶11} Generally, a trial court’s decision regarding discovery matters is reviewed

for an abuse of discretion. Wall v. Ohio Permanente Med. Group Inc., 119 Ohio

App.3d 654, 695 N.E.2d 1233 (8th Dist.1997). The Ohio Supreme Court has held,

however, that “if the discovery issue involves an alleged privilege * * * it is a question of

law that must be reviewed de novo.” Ward v. Summa Health Sys., 128 Ohio St.3d 212,

2010-Ohio-6275, 943 N.E.2d 514, ¶ 13, citing Med. Mut. of Ohio v. Schlotterer, 122

Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237. Because this appeal involves a

discovery issue     surrounding    materials   that   are   potentially covered     by the

physician-patient privilege, our standard of review is de novo. Id.
                               Physician-Patient Privilege

       {¶12} Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action. Civ.R. 26(B)(1). It is not

ground for objection that the information sought will be inadmissible at trial as long as

the information appears reasonably calculated to lead to the discovery of admissible

evidence.    Id.   Communications between a physician and patient, however, are

generally privileged. See R.C. 2317.02(B)(1). Pursuant to R.C. 4732.19, confidential

communications between a licensed psychologist and a client are “privileged in the same

manner as communications between a physician and a patient.” McCoy v. Maxwell, 139

Ohio App.3d 356, 743 N.E.2d 974 (11th Dist.2000).

       {¶13} The waiver of the physician-patient privilege was introduced by the Ohio

Tort Reform Act of 1987, and its rationale is “to prevent patients from filing personal

injury actions and then using the privilege to avoid responding to discovery requests.”

Wargo v. Buck, 123 Ohio App.3d 110, 120, 703 N.E.2d 811 (7th Dist.1997), citing

Robert A. Wade, Note, The Ohio Physician-Patient Privilege: Modified, Revised, and

Defined, 49 Ohio St.L.J. 1147, 1157 (1989) (“If the physical condition of the patient is at

issue in a case, it would be a burlesque upon logic to allow the patient to claim the

privilege.”). The purpose of the privilege is to encourage patients to be completely

candid with their doctors, resulting in better treatment and permitting patients to be free

of the worry that information told to their doctors in private may someday be made

public. Wargo at 120.
          {¶14} If a patient files a civil action, however, the testimonial privilege is lifted to

a certain extent. See R.C. 2317.02(B)(1)(a)(iii). A physician may be compelled to

testify or submit to discovery only as to communications that are “related causally or

historically to physical or mental injuries that are relevant to issues” in the civil action.

R.C. 2317.02(B)(3)(a). Thus, if the records are covered by R.C. 2317.02(B) and waiver

of the privilege applies, the trial court must determine whether the records are related

causally or historically to physical or mental injuries relevant to the issues in this case.

Folmar v. Griffin, 166 Ohio App.3d 154, 2006-Ohio-1849, 849 N.E.2d 324, ¶ 23 (5th

Dist.).

          {¶15} Because the physician-patient privilege is statutory and in derogation of the

common law, it must be strictly construed against the party seeking to assert it. Wargo

at 120, citing Ohio State Med. Bd. v. Miller, 44 Ohio St.3d 136, 140, 541 N.E.2d 602

(1989). Further, the party opposing a discovery request has the burden to establish that

the requested information would not reasonably lead to discovery of admissible

evidence. Pinnix, 8th Dist. Cuyahoga Nos. 97998 and 97999, 2012-Ohio-3263, citing

State ex rel. Fisher v. Rose Chevrolet, Inc., 82 Ohio App.3d 520, 523, 612 N.E.2d 782

(12th Dist.1992).

          {¶16} Generally, however, “when there is a dispute over whether certain medical

records are causally and historically related to the issues in the case, a court should

conduct an in camera inspection of those records to make that determination.”

Groening v. Pitney Bowes, Inc., 8th Dist. Cuyahoga No. 91394, 2009-Ohio-357, citing
Neftzer v. Neftzer, 140 Ohio App.3d 618, 748 N.E.2d 608 (12th Dist.2000), and Nester v.

Lima Mem. Hosp., 139 Ohio App.3d 883, 745 N.E.2d 1153 (3d Dist.2000); see also

Rinaldi v. City View Nursing & Rehab. Ctr., Inc., 8th Dist. Cuyahoga No. 85867,

2005-Ohio-6360;     Sweet   v.   Sweet,   11th   Dist.   Ashtabula    No.   2004-A-0062,

2005-Ohio-7060; Menda v. Springfield Radiologists, Inc., 136 Ohio App.3d 656, 737

N.E.2d 590 (2d Dist.2000); and Patterson v. Zdanski, 7th Dist. Belmont No. 03 BE 1,

2003-Ohio-5464; Cargile v. Barrow, 182 Ohio App.3d 55, 2009-Ohio-371, 911 N.E.2d

911, ¶ 8 -12 (1st Dist.); Mason v. Booker, 185 Ohio App.3d 19, 2009-Ohio-6198, 922

N.E.2d 1036 (10th Dist.).

       {¶17} We find this case to be factually similar to two recent Eighth District cases:

Groening, 8th Dist. Cuyahoga No. 91394, 2009-Ohio-357, and Pinnix, 8th Dist.

Cuyahoga Nos. 97998 and 97999, 2012-Ohio-3263.              In each of these cases, the

appellant raised the same issue as Csonka-Cherney does here.          In these cases, we

sustained the appellant’s assignment of error and reversed for an in camera inspection of

the disputed records.

       {¶18} Thus, in the present case, given the sensitive nature of the information at

issue, we conclude that the trial court should have conducted an in camera inspection of

the records before ordering them to be disclosed to determine which, if any, of the

subject records are causally or historically related to Csonka-Cherney’s claims.

       {¶19} We recognize that the scope of discovery is broad. As we explained in

Pinnix at ¶ 15:
       A party may be entitled to the discovery of information that would be
       inadmissible at trial as long as “the information sought appears reasonably
       calculated to lead to the discovery of admissible evidence.” Civ.R.
       26(B)(1). It is not unusual to find evidence of other causes for injuries the
       plaintiff claims are related to the defendant’s negligence in seemingly
       unrelated medical records. Nonetheless, in this matter, the trial court
       erred in granting an overly broad discovery request when there was a
       reasonable dispute as to whether some of the medical records are causally
       and historically related to the [plaintiff’s] action.

       {¶20} We are further mindful of the fact that an in camera review may be

burdensome for the trial court. See Bogart v. Blakely, 2d Dist. Miami No. 2010 CA 13,

2010-Ohio-4526 (“Prior to trial, it is unreasonable and impractical to require a trial judge

to attempt to determine whether a plaintiff’s extensive medical history is relevant to the

underlying action[.]”). The preparation of a privilege log, however, would place the

onus back upon Csonka-Cherney — where it belongs — because it is her burden to

demonstrate which of the records, once produced, are not causally or historically related.

 See Hartzell v. Breneman, 7th Dist. Mahoning No. 10 MA 67, 2011-Ohio-2472;

Patterson, 7th Dist. Belmont No. 03BE1, 2003-Ohio-5464.

       {¶21} We disagree with defendants that Csonka-Cherney has waived her right to

challenge the production of the documents based on privilege because she did not

already file a privilege log.

       {¶22} Civ.R. 26(B)(6)(a) provides:

       When information subject to discovery is withheld on a claim that it is
       privileged * * *, the claim shall be made expressly and shall be supported
       by a description of the nature of the documents, communications, or things
       not produced that is sufficient to enable the demanding party to contest the
       claim.
      {¶23} As this court stated in Huntington Natl. Bank v. Dixon, 8th Dist. Cuyahoga

No. 93604, 2010-Ohio-4668, ¶ 24, “the Eighth District has not adopted such a per se

waiver rule and we decline to find waiver here.” We explained:

      “‘Failure to assert the privilege objection correctly can mean that the
      privilege is waived.’ Given that such a result ‘could impose substantial
      and unjustified burdens on litigants, however, most decisions regarding
      waiver due to failure to provide an adequate privilege log tend to be very
      case-specific. While some courts have held the failure to provide a
      privilege log within the applicable time to constitute a waiver of the
      asserted privilege, other courts have specifically ‘reject[ed] a per se waiver
      rule that deems a privilege waived if a privilege log is not produced.’
      Indeed, in light of ‘the harshness of a waiver sanction,’ many courts ‘have
      reserved the sanction for those cases where the offending party committed
      unjustified delay in responding to discovery.’ Additionally, ‘[m]inor
      procedural violations, good faith attempts at compliance, and other such
      mitigating circumstances militate against finding waiver.’” Berryman v.
      SuperValu Holdings, Inc., S.D. Ohio No. 3:05cv169, 2010 U.S. Dist.
      LEXIS 32522 (Mar. 31, 2010).

Huntington Natl. Bank at ¶ 24.

      {¶24} Here, Csonka-Cherney consistently and unequivocally gave defendants

notice that she was not waiving her right to assert privilege relating to her medical

records. Further, Csonka-Cherney did not commit an unjustifiable delay in responding

to defendants’ discovery request. She sought and received permission from defendants

to extend the time to respond to their discovery requests. Although Csonka-Cherney

went beyond the time defendants gave her to respond (by almost two months), there is

nothing in the record that establishes that defendants complained of the delay at the time

or that the defendants were prejudiced in any way.
       {¶25} Accordingly, we conclude that the trial court erred by granting defendants’

motion to compel relating to Csonka-Cherney’s medical records without first conducting

an in camera review of the records to determine if they are causally or historically related

to the issues in this case. Csonka-Cherney’s two assignments of error are sustained.

Upon remand, however, Csonka-Cherney shall first construct a privilege log pursuant to

Civ.R. 26(B)(6)(a), and submit it, along with the documents under seal, to the trial court.



       {¶26} The judgment of the trial court is reversed. The trial court’s order granting

defendants’ motion to compel is vacated. Upon remand, the trial court is instructed to

conduct an in camera inspection of the requested medical records to determine which of

the records, if any, are pertinent to the issues in this action. Only medical information

that causally or historically relates to issues in this case is discoverable.

       It is ordered that appellant recover from appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_______________________________________________
MARY J. BOYLE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
