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Lajeunesse v. BNSF Railway Co.

United States District Court, D. New Mexico

July 10, 2019

JEREMY LAJEUNESSE, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE

         This 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 here.

         I) BACKGROUND

         Mr. 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].

         The 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.].

         Mr. 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].

         In his 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 prescription that:

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 an Order

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].

         In 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].

         Mr. 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].

         II) ...


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