United States District Court, M.D. Florida, Tampa Division
PHYLLIS B. CERRATO and GERMAN CERRATO, Plaintiffs,
NUTRIBULLET, LLC and CAPITAL BRANDS, LLC, Defendants.
S. SNEED UNTIED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendants' Motion for
Entry of Order Authorizing Release of James Haley Veterans
Hospital Records of Plaintiff (“Motion to Compel
Medical Records”) (Dkt. 47), Defendants' Motion to
Compel Execution of Authorization for Employment Records
(“Motion to Compel Employment Records”), and
Plaintiffs' Response in Opposition to Defendant's
Motion to Compel Authorization (Dkt. 60). On October 31,
2017, the Court held a hearing on the Motions. For the
reasons stated at the hearing and that follow, the Motions
Phyllis and German Cerrato filed this products liability
action against Defendants for injuries allegedly sustained by
Plaintiff Phyllis Cerrato while using a blender designed and
manufactured by Defendants. (Dkt. 1.) Plaintiffs allege that
the blender exploded and resulted in hot liquids burning
Plaintiff Phyllis Cerrato and causing property damage to
Plaintiffs' kitchen. (Dkt. 1 at ¶ 4.) Plaintiff
Phyllis Cerrato alleges personal injuries, lost wages, and
impaired earning capacity as a result of the accident. (Dkt.
January 4, 2017, the Court entered its Case Management and
Scheduling Order (“Scheduling Order”). (Dkt. 16.)
Pursuant to the Scheduling Order, the deadline for discovery
in this case was August 1, 2017. (Dkt. 16.) In March 2016,
Defendants subpoenaed records from Plaintiff Phyllis
Cerrato's primary care physician at the James Haley
Veterans Hospital (“Veterans Hospital”) as well
as from Plaintiff's employer, the United States Army
(“Army”). (Dkt. 47 at 3; Dkt. 48 at 2.)
Plaintiffs did not object to the subpoenas. (Dkt. 47 at 3;
Dkt 48 at 4.) To date, neither the Veterans Hospital nor the
Army has filed an objection to the subpoenas. (Dkt. 47; Dkt.
48.) Nevertheless, Defendants maintain that the Veterans
Hospital and Army require a court order or signed
authorization from Plaintiff Phyllis Cerrato to release the
documents requested in the subpoenas. As a result, Defendants
now seek an order authorizing the release of Plaintiff's
records from the Veterans Hospital and compelling Plaintiff
Phyllis Cerrato to execute an authorization for records from
maintain great discretion to regulate discovery.
Patterson v. U.S. Postal Serv., 901 F.2d 927, 929
(11th Cir. 1990). The court has broad discretion to compel or
deny discovery. Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
Through discovery, parties may obtain materials that are
within the scope of discovery, meaning they are
nonprivileged, relevant to any party's claim or defense,
and proportional to the needs of the case. Fed.R.Civ.P.
26(b)(1). The U.S. Supreme Court held that the term
“relevant” in Rule 26 should encompass “any
matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351-52 (1978).
to Federal Rule of Civil Procedure 16(b)(3)(A), a case
management and scheduling order must limit the time to
complete discovery. Fed.R.Civ.P. 16(b)(3)(A). This deadline
“may be modified only for good cause and with the
judge's consent.” Id. at 16(b)(4).
“To establish good cause, the party seeking the
extension must establish that the schedule could not be met
despite the party's diligence.” Ashmore v.
Sec'y, Dep't of Transp., 503 Fed. App'x 683,
685 (11th Cir. 2013); M.D. Fla. Local R. 3.09(b)
(“Failure to complete discovery procedures within the
time established . . . shall not constitute cause for
continuance unless such failure or inability is brought to
the attention of the Court at least sixty (60) days in
advance of any scheduled trial date and is not the result of
lack of diligence in pursuing such discovery.”).
Motion to Compel Medical Records
contend that the medical records sought from the Veterans
Hospital are discoverable. (Dkt. 47.) However, Defendants
filed their Motion to Compel Medical Records past the August
1, 2017 discovery deadline designated in the Scheduling
Order. (Dkt. 16.) Defendants must show good cause to modify
the Scheduling Order. Fed.R.Civ.P. 16(b)(4). Specifically,
Defendants must show that they could not meet the August 1,
2017 discovery deadline despite their diligence.
Ashmore, 503 Fed. App'x at 685.
were made aware of the Veterans Hospital's objection to
producing the documents without a signed authorization or
court order in April 2017. (Dkt. 47-1.) Further, Defendants
were notified in an email dated May 18, 2017 that Plaintiffs
objected to signing the authorization. (Dkt. 47-2.) On July
14, 2017, Defendant conferred with Plaintiffs requesting
their agreement to seek an order from the Court authorizing
the release of the records. (Dkt. 47-2.) Plaintiffs'
counsel's office indicated that it was reviewing
Defendants' proposed order and would respond shortly.
(Dkt. 47-2.) During the hearing, Defendants' counsel
explained that Defendants did not file a motion to compel
earlier because they were communicating with Plaintiffs to
obtain the records and believed they could resolve the issue
without judicial intervention. Defendants' counsel
further argued that he believed the issue would be resolved
because Plaintiffs did not object to the subpoena.
regard to the relevance of the requested documents,
Defendants argue that they seek Plaintiff Phyllis
Cerrato's medical records from the Veterans Hospital as
Plaintiff has placed her medical condition at issue. (Dkt. 47
at 1.) Plaintiff Phyllis Cerrato is alleging bodily injury,
pain and suffering, mental anguish, and aggravation of
pre-existing conditions as a result of the subject accident.
(Dkt. 1 at ¶ 9.) It is well settled that “when a
plaintiff places [her] medical condition at issue, [her]
pertinent medical records will be relevant and discoverable
by defendants.” Lozman v. City of Riviera
Beach, 08-80134-CIV, 2014 WL 12692766, at *1 (S.D. Fla.
May 2, 2014) (quoting Graham v. Witalec, 2011 WL
1335808 (N.D. Fla. Apr. 7, 2011)). Further, a party may be
compelled to sign an authorization for the release of medical
records when the records are relevant and signing the
authorization furthers the “just, speedy, and
inexpensive determination” of the case. See
Fed. R. Civ. P. 1, 26(b)(1); see also Hairston v. ED
Nelson Transp., 3:13-CV-1457-J-32JBT, 2015 WL 12843868,
at *2 (M.D. Fla. Nov. 24, 2015); Hodge v. Orlando
Utilities Comm'n, 609CV1059ORL19DAB, 2010 WL
11507295, at *3 (M.D. Fla. Apr. 28, 2010); Zaffis v. City
of Altamonte Springs, Florida, 6:06CV385 ORL31DAB, 2007
WL 646959, at *2 (M.D. Fla. Feb. 27, 2007).
Defendants properly served the Veterans Hospital with a
subpoena pursuant to Federal Rule of Civil Procedure 45, and
the Veterans Hospital notified Defendants that it required a
court order or signed patient authorization. (Dkt. 47-1.)
Under Rule 45, if the person commanded to produce documents
objects to the subpoena, then “[a]t any time, on notice
to the commanded person, the serving party may move the court
for the ...