Bishop v. Klein

• Decision Date: 01 April 1980
• Parties: Mayo BISHOP v. Paul R. KLEIN, Maria A. Fuller, Administratrix, Third-Party Defendant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1365

402 N.E.2d 1365

380 Mass. 285

Mayo BISHOP v. Paul R. KLEIN, Maria A. Fuller, Administratrix, Third-Party Defendant.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 3, 1979.

Decided April 1, 1980.

John J. Thornton, Boston, for Paul R. Klein.

Bronislaw A. Talutis, Milton, for Maria A. Fuller.

Abner R. Sisson, Boston, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

This action arose out of a 1972 automobile accident in Medway, Massachusetts, involving a vehicle driven by the defendant Paul R. Klein and a vehicle driven by Leonard C. Fuller, in which the plaintiff Mayo Bishop was a passenger. A Superior Court jury rendered a verdict for the plaintiff in the amount of $65,000, plus interest, against the defendants Klein and Maria A. Fuller, administratrix of the deceased Leonard C. Fuller. Klein appealed, ¹ urging that the judgment be vacated and a new trial on the issue of damages be ordered. He argues that the trial judge's denial of his motions to compel production of the plaintiff's records on file at the West Roxbury Veterans' Administration Hospital (V.A. hospital) and his granting of the plaintiff's motion to prohibit defense counsel from making any reference to the plaintiff's refusal to authorize release of those medical records constitute an abuse of discretion and reversible error. We disagree. Accordingly, we affirm the jury's verdict for the plaintiff.

About eighteen years before the 1972 accident, the plaintiff injured his back in job-related incidents. He underwent a spinal fusion operation at the V.A. hospital in 1960 but continued to have serious problems with his back. At the trial, one factual question concerned the extent to which the accident aggravated this preexisting disability.

The defendant first sought access to the plaintiff's hospital records in June, 1974. At that time, the Superior Court granted the defendant's applications for orders to inspect and copy the plaintiff's records at various hospitals, including those at the V.A. hospital. On July 29, 1974, the chief attorney for the Boston regional office of the Veterans' Administration wrote to defense counsel, informing him that "Federal Law prohibit(ed) the Veterans Administration Hospital from complying with th(e) order" because the records sought were "confidential and privileged." The chief attorney explained that disclosure was prohibited unless the veteran gave his permission for the release of information or the provisions of 38 C.F.R. § 1.511 (1979) were satisfied, and he referred counsel to an Ohio case which discussed the confidential nature of the requested records.

No further action was taken by the defendant's attorney until January 25, 1978 two days after the case was initially called for trial. At that time Klein's attorney filed a request, pursuant to Mass.R.Civ.P. 34, 365 Mass. 792 (1974), that the plaintiff produce his V.A. hospital records. In response thereto, on February 13, Bishop's attorney mailed to Klein's lawyer three pages from the hospital records relating to the postaccident diagnosis and treatment of Bishop's back injury.

On February 15, 1978, the case was again called and held for trial. On March 13, 1978, Klein's attorney filed a motion to compel production of Bishop's V.A. hospital records dating from 1960. On March 14, 1978, Klein's attorney filed a motion for continuance until such time as the plaintiff produced the documents. The motion to compel production of the documents was denied, and no further continuances were granted. Before the commencement of the trial on June 21, 1978, defense counsel filed two additional motions to compel production of the V.A. records, both of which were denied. At trial, the defendant asserted unsuccessfully for a fourth time that he was entitled to copies of the plaintiff's V.A. records.

1. Where, as here, a judge has denied a party's request for pretrial discovery, the issue on appeal is whether that denial constituted an abuse of discretion. See 8 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2215 (1970). Cf. Partlow v. Hertz Corp., 370 Mass. 787, 790, 352 N.E.2d 902 (1976). It might have been helpful to the trial judge if the judges who heard and denied the defendant's motions to compel discovery had given reasons for their rulings. Cf. Castellucci v. United States Fidelity & Guar. Co., 372 Mass. 288, 291 n.2, 361 N.E.2d 1264 (1977). However, we see no reason to reverse their exercise of discretion in the instant case since justification for the rulings appears in the applicable law and in the record before us.

First of all, we observe that the defendant waited four years to raise the access issue and sought production of the records only after the case had been placed on the trial list. The Superior Court judges could well conclude that this four-year interval constituted undue delay, a wholly adequate basis for denying the defendant's motions. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). See also Castellucci v. United States Fidelity & Guar. Co., supra at 292-293, 361 N.E.2d 1264. It follows that it was within the discretion of the judges to conclude that the defendant's discovery motions were untimely. Consequently, we cannot say that there was abuse of discretion in denying the defendant's motions to compel production of the records.

Examination of applicable Federal law reveals additional justification for the judges' rulings. Title 38 U.S.C. § 3301 (1976) provides that the records of the Veterans' Administration shall be deemed "confidential and privileged" except "(b) . . . (5) (i)n any suit or other judicial proceeding when in the judgment of the Administrator such disclosure is deemed necessary and proper." Regulations promulgated pursuant to that Federal code section elaborate on the procedure for the administrator's discretionary release of records. ^{2 2} In short in private litigation in State courts an adverse party seeking V.A. records must either secure the veteran's authorization for release or submit an affidavit describing the nature of the litigation and setting out why the records are necessary to avoid a fraud or other injustice. The decision as to ultimate disclosure, however, rests with the administrator. ³ 38 C.F.R. § 1.511(c) (1979).

The defendant argues that he complied with regulatory mandates. He claims that, in seeking a court order under Mass.R.Civ.P. 37(a)(2), 365 Mass. 797 (1974), directing the plaintiff to authorize inspection of his records, he was proceeding under the first alternative of 38 C.F.R. § 1.511(c), under which a veteran's consent is all that is necessary before the administrator rules on disclosure of the records. It is true that one court, faced with a similar issue as to the nature and extent of a plaintiff's disabilities existing prior to an automobile accident, directed a veteran-plaintiff to consent in writing to the inspection of his medical records in the possession of the Veterans' Administration. Leusink v. O'Donnell, 255 Wis. 627, 633, 39 N.W.2d 675 (1949). However, we are reluctant to order such consent absent a showing by a defendant that he has exhausted both administrative alternatives and is still unable to acquire the records. Cf. Kassow v. Robertson, 143 N.E.2d 926, 927-928 (Ohio C.P. 1957). In the present case, there is no evidence that the defendant sought to gain the administrator's approval by submitting the requisite affidavit, despite the fact that the 1974 letter from the V.A. attorney alerted the defendant to the particular problems involved with regard to inspection of V.A. records. Accordingly, we conclude that the defendant failed to exhaust applicable regulatory procedures and may not now circumvent those requirements by means of the discovery rules. See Payette v. Sterle, 202 Cal.App.2d 372, 377-378, 21 Cal.Rptr. 22 (1962); Penn Mut. Life Ins. Co. v. Ireton, 57 Idaho 466, 473-475, 65 P.2d 1032 (1937); Turners, Inc. v. Klaus, 341 S.W.2d 182, 185 (Tex.Civ.App.1960).

The defendant further contends that whatever statutory privilege may have attached to the material sought in his motions was waived when, pursuant to the defendant's request for documents, the plaintiff released three pages related to his postaccident physical examination at the V.A. hospital and failed to object to disclosure of other documents on the ground of privilege. We disagree. The plaintiff's failure to follow the requirement of Mass.R.Civ.P. 34, that a party objecting to a production request specify the items or categories objected to and state reasons for his objections, is irrelevant in the circumstances of this case. If the defendant could not properly proceed to compel the plaintiff's authorization for release of the records under rules 34 and 37 until he had exhausted regulatory procedures, the plaintiff's failure to itemize specific objections to the production request will not be held against him. Even assuming the privilege is the plaintiff's to waive a matter which is not entirely free from doubt, see McGlothan v. Pennsylvania R., 170 F.2d 121, 129-130 (3d Cir. 1948); 8 J. Wigmore, Evidence § 2377 (McNaughton rev. 1961) the defendant has not demonstrated that the three pages constituted a significant part of the privileged matter so that the plaintiff's voluntary disclosure can be termed a waiver. See Payette v. Sterle, supra at 377-378, 21 Cal.Rptr. 22 (plaintiff's introduction of one letter from his V.A. file with respect to disability benefits not waiver of privilege to exclude complete V.A. file); Proposed Mass.R. Evidence 510 (1979).

2. The defendant also submits that the court erred in allowing the plaintiff's motion to prohibit defense counsel from making any reference to Bishop's refusal to authorize inspection of his V.A. hospital records. He relies on Massachusetts cases which permit a party in a civil case to comment upon the exercise...