United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION & ORDER
Michael S. Nachmanoff United States Magistrate Judge
matter is before the Court on Defendant Chubb National
Insurance Company's Motion to Compel Discovery Relating
to Plaintiff's Physical and Mental Health (Dkt. No. 98).
Defendant asks that the Court compel Plaintiff to provide a
list of healthcare providers and mental health professionals
in response to Defendant's Interrogatory No. 25, as well
as executed HIPAA authorizations relating to each identified
healthcare provider and mental health professional, in
response to Defendant's Requests for Documents Nos. 36
and 37. For the reasons that follow, the Motion is granted in
part and denied in part.
November 16, 2015, Plaintiff Susan Rattner, a retired doctor,
lost her home in Great Falls, Virginia, and nearly all of her
belongings after a fire. Compl. ¶ 1 (Dkt. No. 1). On
February 1, 2017, Plaintiff filed a complaint against her
home insurance company, Defendant Chubb National Insurance
Company, and the law firm and attorney representing the
insurance company, SBR Law, LLC and Cynthia Bernstiel. Compl.
¶¶ 1, 12-14 (Dkt. No. 1). Plaintiff amended her
complaint on March 10, 2017. See Dkt. No. 26.
alleges that at the time of the fire, she was in compliance
with the conditions of her homeowner's insurance policy
issued by Defendant Chubb. Id. ¶ 2. Plaintiff
asserts that Defendant Chubb failed to conduct a reasonable
investigation into the loss. Id. ¶ 6. Instead,
Defendant Chubb allegedly contracted with SBR Law and Ms.
Bernstiel to conduct a “targeted investigation aimed at
manufacturing a basis on which to deny [Plaintiff's]
claim.” Id. Defendant Chubb insists that it
has denied Plaintiff's claim because “[t]here is
substantial evidence that Plaintiff had both motive and the
opportunity to burn down her home to obtain insurance
coverage.” Def.'s Mem. in Supp. 1 (Dkt. No. 47).
March 24, 2017, SBR Law and Ms. Bernstiel filed a Motion to
Dismiss, which the Court granted on April 24, 2017.
See Dkt. Nos. 38, 77. On May 19, 2017, Defendant
filed the instant Motion to Compel, which Plaintiff opposes
on the grounds that Defendant's request dating back to
2012 is “overbroad and unduly invasive.”
Pl.'s Opp'n 4 (Dkt. No. 110).
parties agree that Plaintiff's health is not relevant to
the present matter based on allegations of emotional distress
or physical injury. See Am. Compl. ¶¶ 210,
226 (Dkt. No. 26); Def.'s Mem. 5 n.2 (Dkt. No. 99);
Pl.'s Opp'n 1 (Dkt. No. 110). Plaintiff never alleged
that Defendant Chubb National caused her physical or mental
distress. See Am. Compl. ¶¶ 210, 226 (Dkt.
No. 26); Pl.'s Opp'n 1 (Dkt. No. 110). Rather,
Plaintiff's allegations regarding her health were
directed only at the Law Firm Defendants, which have been
dismissed from the case. See Am. Compl. ¶¶
210, 226 (Dkt. No. 26). The parties do agree, however, that
Plaintiff's physical condition on the night of the fire
on November 16, 2015, remains at issue. See
Def.'s Mem. 6 (Dkt. No. 99) (citing Ex. K (Dkt. No.
99-12)); Pl.'s Opp'n 2 (Dkt. No. 110); Def.'s
Reply 4 (Dkt. No. 119). Defendant is therefore entitled to
review Plaintiff's records pertaining to her physical
health at or near the time of the fire.
parties dispute the relevant time period for disclosure of
Plaintiff's physical health records. Defendant seeks
three years of records, from January 1, 2013 to December 31,
2015, while Plaintiff has offered to disclose her records
from January 1, 2014 to November 15, 2015, or 22.5 months.
See Pl.'s Opp'n 2-3 (Dkt. No. 110);
Def.'s Reply 9 (Dkt. No. 119). Defendant asserts that
“Chubb National's expert has advised that a minimum
of three years of medical records are necessary for him or
any other competent expert to have the necessary context
accurately to assess Plaintiff's condition on a given
date.” Def.'s Reply 4 (Dkt. No. 119). The Court
finds that Defendant's request for three years of records
is reasonable. Plaintiff must identify all doctors
who treated her physical health ailments, including any
chronic conditions that could impact her mobility, balance,
coordination, or stamina, for the three-year
period.Plaintiff must also provide signed HIPAA
consent forms for these doctors.
Court further finds that Defendant is not entitled to
Plaintiff's mental health records at this time. Although
Plaintiff's physical health is at issue for the limited
purpose of determining her physical mobility on the night of
the fire, Defendant has failed to establish that
Plaintiff's mental health records are likely to make such
claim more or less provable at trial. See Cappetta v. GC
Services Ltd. Partnership, 266 F.R.D. 121, 126 (E.D. Va.
2009) (citation and internal quotation marks omitted)
(“The scope of discovery into the sensitive area of
private medical information should be limited and confined to
that information that is essential to a fair trial.”).
Plaintiff's mental health records are irrelevant and
therefore not discoverable based upon the record before the
Court. See Id. at 129 (granting a motion to quash a
subpoena for marital counseling records where the record
could not support a conclusion that the plaintiff would seek
to introduce evidence on her relationship with her ex-husband
hereby ORDERED that:
(1) Defendant's Motion is GRANTED with respect to
Defendant's request for Plaintiff's physical health
records for the three-year period between and including
January 1, 2013 through December 31, 2015. By Thursday, June
1, 2017, Plaintiff must identify all doctors who treated her
for physical ailments, as described above, and must provide
Defendant with signed HIPAA consent forms authorizing the
release of her physical health records for the three-year
(2) Plaintiff shall appear for a 60 to 90 minute physical
examination by a Chubb National expert physician at a
mutually agreeable time, but no later than by the close of
discovery on July 7, 2017. The examination must take place
within the Eastern ...