Mariner v. Great Lakes Dredge & Dock Company

• Decision Date: 14 February 1962
• Docket Number: Civ. A. No. 37055.
• Citation: 202 F. Supp. 430
• Parties: Richard MARINER, Plaintiff, v. GREAT LAKES DREDGE & DOCK COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

202 F. Supp. 430

Richard MARINER, Plaintiff, v. GREAT LAKES DREDGE & DOCK COMPANY, Defendant.

Civ. A. No. 37055.

United States District Court N. D. Ohio, E. D.

February 14, 1962.

A. H. Dudnik, Cleveland, Ohio, for plaintiff.

Robert G. McCreary, Jr., Cleveland, Ohio, for defendant.

GREEN, District Judge.

Plaintiff filed suit to recover for personal injuries sustained on March 25, 1961, while in defendant's employ. His action is based on the Jones Act.

Defendant has filed a motion for production of the following items:

1) All medical records, including X-ray plates, of St. John's Hospital pertaining to plaintiff, covering the dates

(a) April 26—May 6, 1935 (b) November 22—November 23, 1940 (c) January 1—January 11, 1942 (d) February 9—February 19, 1946 (e) August 23—August 28, 1951 (f) March 28, 1961

2) All medical records, including X-ray plates, of Ingleside Hospital, pertinent to plaintiff's stay in 1960.

3) All medical records, including X-ray plates, of Cleveland Clinic, pertinent to plaintiff's injury.

4) All records, etc., pertaining to medical treatment of plaintiff by

(a) Dr. Theodore J. Werb (b) Dr. J. H. Fry (c) Dr. Joseph Rossen

5) All personnel records, including medical records, pertinent to plaintiff during his service in the U. S. Marine Corps and U. S. Air Force.

Production is resisted by plaintiff, alleging that the items demanded are privieged and thus not subject to production under F.R.Civ.P. Rule 34, 28 U.S.C.A.:

"Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody or control * * *."

Counsel have provided the court with a copy of a deposition taken by the defendant of the plaintiff. The factual matter contained in defendant's supporting affidavit is found in the deposition, and reference will be made to the facts generally.

Plaintiff was working on one of defendant's scows on the evening of March 25, 1961. While engaged in the performance of his duties he was struck by a length of chain which had snapped loose from its moorings. The injury alleged, broadly speaking, is to the upper back and spine.

Following the accident, plaintiff consulted his family physician, Dr. Werb. He sent plaintiff to St. John's Hospital for X-rays. These were examined by Dr. Werb who concluded "nothing showed up." Dr. Werb subsequently referred plaintiff to the Cleveland Clinic, where he was attended by Dr. Hartman. The deposition discloses that Dr. Dohn was a consulting physician during the course of treatment at the Clinic. At the Clinic plaintiff underwent nerve blocks and operative procedures on his spine.

Some years before, Dr. Rossen had removed a cyst from plaintiff's chest. He also treated plaintiff for a dislocated shoulder, X-rays of which were made at St. John's Hospital. Plaintiff had also been a patient at St. John's for about two weeks in 1951 with a broken jaw.

Plaintiff was hospitalized for a period in 1960 at Ingleside Hospital for treatment of a nervous condition. His physician at that time was Dr. Fry.

Plaintiff testified that he received a general discharge from the Marine Corps in 1950, after serving thirty days, due to his inability to adjust to military life. He stated that during this time he talked to a couple of doctors, but never had any treatment. He enlisted in the Air Force in 1951 and served until February 1953, when he was given an undesirable discharge.

Before the question of privilege is reached defendant must satisfy the burden of showing good cause and relevancy to this action, with regard to the items requested. It is not enough to say that the plaintiff's physical condition is in issue and the defendant should be entitled to every speck of matter relating thereto. It is the injury to the plaintiff's back we are concerned with here, and evidence regarding other portions of the body is not necessarily relevant.

There is no evidence before the court regarding items 1(a) (b) (c) (d). As to these, defendant has, therefore, failed to show relevance and good cause, as required under Rule 34.

From the facts, it may fairly be assumed that item 1(e) was the hospitalization due to plaintiff's broken jaw. The court sees no correlation between that occurrence and anything material to this action.

Regarding Dr. Rossen's records, it is clear that any information concerning removal of the cyst would be irrelevant. I also do not find the matter of the shoulder injury sufficiently relevant, although it does present a closer question.

The military records are not shown to contain any evidence relating to plaintiff's physical or mental condition. The affidavit recites that the records "May contain information relevant" to the issues of this case. There is nothing in plaintiff's testimony regarding his Air Force service and separation to support this contention. The Marine Corps separation for "inability to adjust" and plaintiff's allusion to talking to a couple of doctors, without any treatment, do not afford an adequate basis for a finding that the information in these records is relevant herein. I am of the opinion that a much stronger showing of relevancy should be made in order to require plaintiff to secure from the military authorities these records, which concededly are not presently in his possession.

The question of the Ingleside Hospital records and Dr. Fry are related. Plaintiff alleges that as a result of this accident, he has suffered "shock to his nervous system, which has manifested itself in nervousness, inability to gain normal rest and grief." It is quite clearly relevant to this claim whether plaintiff suffered from a similar nervous disorder in the past.

The records of Cleveland Clinic, St. John's Hospital of March 28, 1961, and Dr. Werb are all the outgrowth of this accident, and are therefore relevant.

It is my opinion that items 1(f), 2, 3, 4(a) and 4(b) all satisfy the requirements of Rule 34. This then brings us to the question whether they are privileged, within the meaning of that Rule.

There is no common-law rule of physician-patient privilege, and none has been accorded in the Federal Courts as a general evidentiary principle. Aetna Life Insurance Co. v. Gordy, 248 F.2d 129 (CA 8, 1957); Currie v. Moore McCormack Lines, Inc., 23 F.R.D. 660 (D.C. Mass.1959); Collins v. Howard, 156 F. Supp. 322 (D.C.S.D.Ga.1957); Gretsky v. Basso, 136 F.Supp. 640 (D.C.Mass. 1955).

Plaintiff contends that by virtue of the provision of Ohio Revised Code Sec. 2317.02(A) the documents in question are privileged. The pertinent part of that statute provides:

"The following persons shall not testify in certain respects: (A) * * * or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient * * *."

Defendant urges that this physician-patient privilege, founded in state statute, does not apply in the Federal courts.

The Supreme Court in Connecticut Mutual Life Ins. Co. v. Union Trust Co., 112 U.S. 250, 5 S.Ct. 119, 28 L.Ed. 708 (1884), a diversity case, held that the New York physician-patient statute should be followed in the Federal courts. The ruling was based on Sec. 721 of the Revised Statutes, now 28 U.S.C. § 1652, declaring that the laws of the several states shall be regarded as rules of decisions in trials in the Federal courts. That decision was considerably prior to the Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, doctrine and the adoption of the Federal Rules of Civil Procedure, particularly Rule 43(a). However, it has never been expressly repudiated. Thus, while there may be some doubts as to its present applicability, the recognition of the principle of honoring state privilege statutes in the Federal courts should not be disregarded.

The decisions of this court in Scourtes v. Fred W. Albrecht Grocery Company, D.C., 15 F.R.D. 55 (1953), Humphries v. Pennsylvania R. R. Co., D.C., 14 F.R.D. 177 (1953), Brookshire v. Pennsylvania R. R. Co., D.C., 14 F.R.D. 154 (1953) and Panella v. Baltimore & Ohio R. R. Co., 14 F.R.D. 196 (1951) are cited by defendant in support of the theory that state privilege statutes are not controlling in the Federal courts. It was said in Scourtes:

"It has already been decided in this court, however, that the question of privilege, within the meaning of

...