Carreno v. Gates, No. 429-10-13 Bncv (Wesley, J., July 24, 2014).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                                     STATE OF VERMONT
SUPERIOR COURT                                                                                                 CIVIL DIVISION
Bennington Unit                                                                                     Docket No. 429-10-13 Bncv

                                                    Carreno vs. Gates et al

                                             ENTRY REGARDING MOTION

Title:                Motion to Compel (Motion 1)
Filer:                Michael Gates
Attorney:             Kristin C. Wright
Filed Date:           June 20, 2014

Response filed on 07/09/2014 by Attorney Joshua L. Simonds for Plaintiff Christianna Carreno
Response filed on 07/09/2014 by Attorney Kristin C. Wright for Defendant Carol Gates

The motion is GRANTED
                    Decision Granting Defendants’ Motion to Compel

        Plaintiff sues Defendants for negligence. Plaintiff alleges Michael Gates drove into
Plaintiff’s stopped vehicle. As a result of the collision, Plaintiff suffered injuries to her back and
neck. Plaintiff also claims she experiences loss of enjoyment of life from her reduced ability to
hike, dance, and exercise. Defendants sought the production of all medical and mental health
records dating back to 2003. Plaintiff produced many of these records but declined to produce
some records about gynecological issues, gastro-intestinal difficulties, depression, and malaise.

        The issue in this motion is whether Plaintiff must disclose all medical and mental health
records from 2003 until the present. Under V.R.E. 503(b), medical and mental health records
are privileged; however, V.R.E. 503(d)(3) creates an exception for records that are relevant to
claim or defense. A plaintiff waives the privilege where the plaintiff’s health and medical
conditions are issues in the case. See Mattison v. Poulen, 134 Vt. 158, 161–62 (1976) (discussing
waiver of medical privilege in a claim for negligence involving an automobile collision). The trial
court has some power to limit the scope of discovery for information that has little relevance to
this case. See id. at 163–64 see also Palmeri v. Brattleboro Mem. Hosp., Inc., No. 288-6-04
Wmcv, 2006 WL 4959624 (Vt. Super. Ct. Nov. 6, 2006) (Wesley, J.) (discussing the protection of
sensitive and dated mental health records). Nevertheless, the trial court should order disclosure
of relevant information to Defendants. See Mattison, 134 Vt. at 164–65.

        In this case, Defendant’s requests are relevant and Plaintiff waived her privilege due to
the nature of her claims for relief. Plaintiff claims she experienced neck and back pain and the
loss of enjoyment of life. Defendant is entitled to discover if Plaintiff had preexisting conditions
that limit the scope of her damages. See V.R.E. 503(d)(3); Mattison, 134 Vt. at 161–62. Plaintiff
also disclosed she suffered from depression and malaise. Inquiry regarding Plaintiff’s prior
mental health issues may also lead to discoverable evidence about the scope of Plaintiff’s loss
of enjoyment of life. V.R.E. 503(d)(3). Defendants’ request for medical records from the last 10
years is not overly broad and burdensome. The request is limited in time and requests
information that could be important to Defendant’s defense.

        The Court therefore grants Defendants’ motion to compel disclosure. Plaintiff must
produce all available medical records and mental health records dating back to 2003. Plaintiff
must also supplement her answers to interrogatories to include this information. Plaintiff must
file supplementary disclosures within 30 days of this order.

        Finally, Plaintiff requests a protective order under V.R.C.P. 26(b)(5) that limits disclosure
and use to counsel. Defendants do not object to this request. The information Defendants seek
is sensitive and potentially embarrassing. Accordingly, the Court orders that only counsel and
members of her firm view or discuss the released medical records and mental health records.
See Mattison, 134 Vt. at 163–64; Palmeri, 2006 WL 4959624.

WHEREFORE, it is hereby ORDERED :

        The Court GRANTS Defendants’ motion to compel. Defendant must supplement her
disclosures within 30 days. The Court also issues a protective order. Only counsel for Defendant
and members of her law firm may view or discuss these records.


Notifications:
Joshua L. Simonds (ERN 2187), Attorney for Plaintiff Christianna Carreno
Kristin C. Wright (ERN 6506), Attorney for Defendant Michael Gates
Kristin C. Wright (ERN 6506), Attorney for Defendant Carol Gates

wesley
