United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
H. RITTER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Jeremy
Lajeunesse's Motion for Sanctions and Order Prohibiting
Defendant's Ex Parte Communications with Treating Doctors
[Doc. 108], filed April 17, 2');">2019. Having considered Defendant
BNSF Railway Company's (“BNSF”) Response and
Mr. Lajeunesse's Reply briefs, [Docs. 109, 118], the
Court denies Mr. Lajeunesse's request
for sanctions and an order prohibiting the conduct alleged
Lajeunesse was working for BNSF as a Motorized Track
Inspector when he alleges he was injured while driving a
Kubota during an inspection on December 2');">20, 2');">2017.
[See Doc. 1, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2]. Specifically, Mr. Lajeunesse
asserts that he injured his lower back when “his Kubota
struck a consecutive series of 3 large washed-out holes that
were about 18” deep.” [Id.]. According
to Mr. Lajeunesse, the Kubota was then pulled from service
due to a worn-out suspension. [Id., p. 3');">p. 3]. Mr.
Lajeunesse subsequently sued BNSF for negligence under the
Federal Employers' Liability Act. [Id., p. 3');">p. 3].
instant motion involves Mr. Lajeunesse's treatment for
his injuries, and the extent to which BSNF may communicate
with his treating providers ex parte. As recited in
the Motion, BNSF has requested Mr. Lajeunesse's treatment
records from his various medical care providers using
provided Health Insurance Portability and Accountability Act
(“HIPAA”) compliant releases. [Doc. 108, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2].
Mr. Lajeunesse's “counsel has [also] granted
Defendant's counsel authority to contact the staff of
Plaintiff's treating medical care providers for the
sole purpose of scheduling
depositions.” [Id. (emphasis in original)].
Mr. Lajeunesse's counsel asserts that this grant of
authority was breached by counsel for BNSF, specifically, by
BNSF's counsel's paralegal. [Id.].
Lajeunesse explains that BNSF's paralegal
“attempted to contact Physical Therapist Isaac Aragon
on his personal mobile telephone, and left a message asking
for him to return her call.” [Id.]. By
mistake, however, BNSF's paralegal left the message on
Mr. Lajeunesse's phone. [See Doc. 109, p. 3');">p. 3].
BNSF explains that its paralegal called for the sole purpose
of seeking the contact information of one of Mr.
Lajeunesse's other treating physical therapists, Patrick
Vigil. [See Doc. 109-1, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2 (affidavit explaining
that at one time Mr. Vigil and Mr. Aragon worked at the same
office)]. While neither party has provided the Court with a
recording or transcription of the actual message BNSF's
paralegal left, BNSF submitted evidence showing that the call
lasted for a total of 36 seconds. [Doc. 190-2');">2, p. 4].
Apparently after he received this call Mr. Lajeunesse sent a
text message back to BNSF's paralegal, putting her on
notice that she had the wrong number and informing her that
he would be notifying his attorneys. [See Doc.
109-2');">2, p. 5].
briefing, Mr. Lajeunesse cries foul. He argues that Mr.
Aragon's deposition was taken on December 11, 2');">2018,
rendering BNSF's attempted contact on February 19, 2');">2019,
beyond the scope of the parties' agreement. [Doc. 108, p.
2');">2]. Furthermore, Mr. Lajeunesse asserts that BNSF's
counsel's staff “had direct contact with
Plaintiff's mental health therapist, Dr. Neuger, because
he does not have staff and BNSF wanted to determine whether
there were additional records since the last request.”
[Id.]. Mr. Lajeunesse argues that both types of
contact are violations of “federal privacy regulations
pertaining to protected health information[.]”
[Id., p. 1]. He further argues that such contacts
violate this Court's Local Rules; specifically, the form
of release that any party claiming physical or mental damages
must sign. See D.N.M.LR-Civ. 2');">26.3; Local Form 1.
Specifically, Mr. Lajeunesse argues that BNSF's contacts
with his treating medical providers violates the Form's
THIS AUTHORIZATION DOES NOT PERMIT THE PERSON OR ORGANIZATION
LISTED IN PARAGRAPH TWO (2');">2) TO OBTAIN OR REQUEST FROM THE
MEDICAL PROVIDER IDENTIFIED IN PARAGRAPH ONE (1) ORAL
STATEMENTS, OPINIONS, INTERVIEWS, OR REPORTS THAT ARE NOT
ALREADY IN EXISTENCE.
[Doc. 108, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2]; Local Form 1, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2. Citing these provisions
and New Mexico's public policy against ex parte contact
between counsel and treating medical providers, [see
Doc. 108, p. 3');">p. 3], Mr. Lajeunesse argues the Court should enter
prohibiting further ex-parte contacts between Defendant BNSF
and/or its counsel with Plaintiff's treating providers,
and order Mr. Aragon and any other witness to be disqualified
from testifying unless Defendant discloses all such contact
in a manner that would permit Plaintiff to verify the content
of any communications and ensure that no improper
conversations took place.
[Id., p. 6].
response, BNSF argues that it has done nothing wrong because
it has “never had any
substantive ex parte communications
with Mr. Aragon concerning Plaintiff, his medical
information, or this litigation[, ]” through counsel or
otherwise. [Doc. 109, p. 3');">p. 3 (emphasis added)]. It argues the
same is true of Dr. Neuger's office. [Id.].
Moreover, BNSF argues that it has never “requested that
the medical providers produce records in a manner that would
violate [HIPAA] or any state or federal law.”
[Id., p. 4]. Finally, BNSF argues against the
imposition of any sanctions, as Mr. Lajeunesse has failed to
show prejudice. [Id., p. 14]. BNSF characterizes Mr.
Lajeunesse's present motion as a “naked attempt to
exclude an unfavorable witness[, ] [Id., p. 16], as
Mr. Aragon's deposition testimony was not favorable to
him. [Id.]. As such, BNSF argues that Mr.
Lajeuensse's Motion is “entirely groundless”
and asks that the Court deny all relief requested.
[Id., p. 17].
Lajeunesse's Reply brief claims that any order entered by
the Court which does not “unequivocal[ly] …
condemn” BNSF's “conduct and arguments”
will lead to the rampant and “unfettered attempts to
violate privacy laws” by BNSF and other defendants.
[Doc. 118, p. 1]. Mr. Lajeunesse then cites to HIPAA for the
proposition that “a covered entity may not use or
disclose protected health information without an
authorization that is valid under this section.”
[Id., pp. 3');">p. 3-4 (citing 45 C.F.R. § 164.508)]. He
then points out that, under HIPAA, “[i]ndividually
identifiable health information” is anything that
identifies an individual; “[t]hus, acknowledging that
an individual is a patient is, itself, a violation of federal
privacy laws.” [Id., p. 4 (citing 45 C.F.R.
§ 160.103)]. Thus, Mr. Lajeunesse argues that
“[t]he issue before the Court is not whether Defendant
had any ‘substantive' conversations with Mr.
Aragon, Mr. Vigil, or Dr. Neuger, but whether Defendant BNSF
and its agents are willing to agree that they will not have
unauthorized ex parte communications that come
within the definition of 45 C.F.R. § 160.103 in the
future.” [Id., p. 4]. Finally, Mr. Lajeunesse
argues that he “does not know how many treating medical
care providers Defendant has contacted or attempted to
contact” so he cannot know the extent to which he has
been prejudiced. [Id., p. 6]. However, due to
“the manner in which Defendant BNSF has pursued this
case” Mr. Lajeunesse assumes he has been prejudiced.
[Id.]. He therefore reiterates his request for an
Order precluding further ex parte contacts by BNSF and
disqualifying Mr. Aragon and other witnesses “unless
Defendant discloses all such contacts in a manner that would
permit Plaintiff to verify the content of any communications
and ensure that no improper conversations took place.”
[Id., pp. 6-7].