Hasso v Lehfeldt, M.D.

Motion to Strike
MP:	Defendants Allergan, Inc.; Allergan U.S.A., Inc. d/b/a Pacific Communications
RP:	Plaintiffs Jennifer Hasso; John Hasso

Motion to Quash
MP:	Plaintiffs Jennifer Hasso; John Hasso
RP:	Defendants Allergan, Inc.; Allergan U.S.A., Inc. d/b/a Pacific Communications

ALLEGATIONS:

Jennifer Hasso (“Jennifer”) and John Hasso (“John”, and together, “Plaintiffs”) filed suit against Max R. Lehfeldt, M.D. (“Dr. Lehfeldt”), Teleos Plastic Surgery, a Medical Corporation (“Teleos”), Pasadena Hospital Association, Ltd. d/b/a Huntington Memorial Hospital (“Huntington”), Allergan, Inc., a Corporation (“Allergan”), and Pacific Communications, a Corporation (“Pacific”, and together with Allergan, “Allergan Defendants”, and collectively with all other defendants, “Defendants”), alleging that Allergan was aware of increased risks and complications associated with the use of SERI Scaffold technology at the time of Jennifer’s surgery, which made use of the technology, but failed to warn of such risks and complications and caused Jennifer to suffer postoperative complications.

Plaintiffs filed a Complaint on March 24, 2020 and a First Amended Complaint (“FAC”) on June 03, 2020 alleging twelve (12) causes of action sounding in: (1) Professional Negligence (against Dr. Lehfeldt, Teleos, and Huntington; (2) Lack of Informed Consent (against Dr. Lehfeldt); (3) Breach of Fiduciary Duty (against Dr. Lehfeldt); (4) Battery (against Dr. Lehfeldt); (5) Negligence (against Allergan and Pacific); (6) Fraud by Intentional Misrepresentation (against Dr. Lehfeldt, Teleos, Allergan, and Pacific); (7) Negligent Misrepresentation (against Dr. Lehfeldt, Teleos, Allergan, and Pacific); (8) Fraud by Concealment; (9) Constructive Fraud (against Dr. Lehfeldt); (10) Negligent Failure to Warn (against Allergan and Pacific); (11) Strict Product Liability – Failure to Warn (against Allergan); and (12) Loss of Consortium

PRESENTATION:

Allergan Defendants filed the motion to strike on July 14, 2020, Plaintiffs filed an opposition on October 23, 2020, and Allergan Defendants filed a reply on October 30, 2020.

Plaintiffs filed the motion to quash subpoenas on September 24, 2020, Allergan Defendants filed an opposition on November 30, 2020, and Plaintiffs filed a reply on December 04, 2020.

RELIEF REQUESTED:

Allergan Defendants move to strike the following allegations from the FAC:

1. Paragraphs 184-191

2. Paragraph 195, the language “and their co-conspirators.”

3. Paragraph 196, the language “and their co-conspirators.”

4. Paragraph 204.

5. Paragraphs 208-209.

6. Paragraphs 212-2016.

7. Paragraph 219, the language “and their co-conspirators.”

8. Paragraph 220, the language “and their co-conspirators.”

9. Paragraph 234, the language “and Defendant Allergan.”

10. Paragraph 237, the language “That information was concealed from the plaintiff by defendants in furtherance of co-defendants’ conspiracy.”

11. Paragraph 238, the language “These facts were concealed from the plaintiff by defendants in furtherance of co-defendants’ conspiracy.”

12. Paragraph 293, the language “These facts were concealed from plaintiff.”

13. Paragraph 240, the language “These facts were concealed from plaintiff.”

14. Paragraph 241, the language “and in doing so acted in furtherance of their plan with co-conspirators ALLERGAN, PACIFIC COMMUNICATIONS.”

15. Paragraphs 242-243.

16. Paragraphs 251-252.

17. Paragraphs 255-259.

Plaintiff moves for an order to quash the deposition subpoenas sought by Allergan Defendants to psychiatrist Mark Welch, D.O., psychiatrist Johnson Lin, M.D., and therapist JoAnn Simmons, M.F.T.

DISCUSSION:

Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. (Code Civ. Proc., § 436, subd. (a).) In granting a motion to strike made under CCP § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (Code Civ. Proc., § 431.10.) The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

Meet and Confer – CCP § 435.5 provides that before filing a motion to strike, the moving party shall meet and confer with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.

On review of the Declaration of Mark A. Sentenac, the Court finds that Allergan Defendants have sufficiently satisfied meet and confer requirements to code.

Merits – Allergan Defendants cite Valentine v. Baxter Healthcare Corp. (1990) 68 Cal.App.4th 1467, 1483 for the contention that a manufacturer of a prescription medical device owes no duty to disclose risks associated with the product to patients directly; and cite Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514, 549 for the contention that civil conspiracy is not a standalone cause of action. Allergan Defendants contend that these two cases show that they owe no duty to warn or disclose information directly to Plaintiff and argue that all allegations relating to their conspiracy to conceal or misrepresent information to Plaintiff about SERI should be stricken.

In opposition, Plaintiffs cites Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 989 for the contention that the learned intermediary doctrine relies on the physician’s objective and independent judgment, and further cites Murphy v. Abbott Laboratories (S.D. Tx. 2012) 847 F.Supp.2d. 958, 971-73 for the contention that the learned intermediary doctrine must be evaluated to determine whether its application is appropriate when the physician receives compensation from a medical manufacturer company. Plaintiffs argue that, as the doctrine is inapplicable, Allergan Defendants have a duty to warn the patient directly.

In reply, Allergan Defendants argue that California does not recognize an exception to the learned intermediary doctrine for physicians serving as paid consultants and contend that Plaintiffs’ citation to Murphy is unpersuasive given that it is a Texas case that did not ultimately rule on the applicability of the learned intermediary doctrine.

Neither party disputes the contention that civil conspiracy is not a standalone cause of action. The issue remaining before the Court, therefore, is whether the learned intermediary doctrine applies in the instant circumstances.

In Valentine, the appellate court found that a manufacturer of prescription drugs and implants has a duty to warn only the physician, not the patient, as the physician explains the properties and proper usage of such drugs and implants to the patient. (Valentine, supra, 68 Cal.App.4th at p. 1483. The appellate court in Carmichael explains that this rule exists because “(1) The doctor is intended to be an intervening party in the full sense of the word. Medical ethics as well as medical practice dictate independent judgment, unaffected by the manufacturer’s control, on the part of the doctor. (2) Were the patient to be given the complete and highly technical information on the adverse possibility associated with the use of the drug, he would have no way to evaluate it, and in his limited understanding he might actually object to the use of the drug, thereby jeopardizing his life. (3) It would be virtually impossible for a manufacturer to comply with the duty of direct warning, as there is no sure way to reach the patient.” ( Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 989) (quoting Rheingold, Products Liability – The Ethical Drug Manufacturer’s Liability (1964) 18 Rutgers L.Rev. 947, 987.)

Plaintiffs cite only to Murphy, supra, 847 F.Supp.2d. 958 to support their contention that the learned intermediary doctrine may be defeated by when the intermediary receives payment from a manufacturer like Allergan Defendants, thereby imposing a duty on the manufacturer to warn a patient directly. Federal courts decisions, aside from the United States Supreme Courts, are persuasive and not binding on California state courts. ( Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1714) (“. . . the decisions of the lower federal courts, while persuasive, are not binding on us.”) Out-of-state court decisions are similarly persuasive only, and not binding on California state courts. ( Global Modular, Inc. v. Kadena Pacific, Inc. (2017) 15 Cal.App.5th 127, 136.) As a federal district case from the Southern District of Texas, Murphy is not binding on this Court, and the Court need not analyze it. As Plaintiffs do not cite to a California state court case supporting this contention, the Court considers Plaintiffs’ argument unsupported under California law.

Thus, Allergan Defendants persuasively argue that they have no duty to warn Plaintiffs directly regarding SERI, and the Court will thus grant the instant motion.

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Standard of Review – Quash Subpoena – CCP § 1987.1 grants the trial court authority to quash a subpoena when necessary. CCP § 1987.1 provides: “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Merits – The subpoenas at issue was issued from Allergan Defendants to psychiatrist Mark Welch, D.O., psychiatrist Johnson Lin, M.D., and therapist JoAnn Simmons, M.F.T.

Jennifer argues that the psychotherapist-patient privilege applies to the relevant subpoenas, and further argue that the waiver pursuant to Evidence Code § 1016 (“There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient . . . “) is inapplicable. Jennifer cites toDavis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017;In re Lifschutz (1970) 2 Cal.3d 415; and Roberts v. Superior Court (1973) 9 Cal.3d 330 in support of the contention that a plaintiff who does not make a claim for mental and psychological damages has not placed his or her mental condition at issue and does not waive the psychotherapist-patient privilege pursuant to Evidence Code § 1016.

In opposition, Allergan Defendants argue that Jennifer has put her mental condition at issue by seeking damages for purported emotional distress, nervousness, embarrassment, and anxiety. Allergan Defendants contend that the direct relevance of the subpoenaed records arises from Jennifer’s damages in the loss of consortium claim and claims for mental and emotional conditions that Jennifer had prior to contact with SERI. Allergan Defendants argue that any and all information obtained from Jennifer’s therapists is directly relevant to the ultimate calculation of Jennifer’s damages. Allergan Defendants seek to distinguish Davis v. Superior Court (1992) 7 Cal. App. 4th 1008 and argue that the instant action is factually distinguishable on the grounds that the Davis plaintiff had not alleged a claim for emotional injuries, where here Jennifer is alleging emotional, mental, and loss of consortium damages.

A patient has the privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by the holder of the privilege unless an exception applies. (Evid. Code, § 1014.)

When privacy is at issue, the information sought by the moving party must have direct relevance to the litigation. This follows from the fact that privacy is accorded, in California, the status of an inalienable right, on a par with defending life and possessing property. (California Constitution, Article I, Section I; Vinson v. Superior Court (1987) 43 Cal. 3d 833, 841.) Accordingly, it is burden of the party seeking the constitutionally protected information to establish its direct relevance to the litigation, and mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice. (Davis v. Superior Court of Kern County (1992) 7 Cal. App. 4th 1008, 1017.) Direct relevance, moreover, will not automatically open the door to the information sought; there still remains a careful balancing of the compelling public need for discovery against the fundamental right of privacy. (Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 567.) As a result, the courts must balance the rights of civil litigants to discover relevant facts against the privacy interest of the person(s) subject to discovery. (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842.) Even where the balance weighs in favor of disclosure of private information, the scope of disclosure will be narrowly circumscribed; such an invasion of the right of privacy “must be drawn with narrow specificity” and is permitted only to the extent necessary for a fair resolution of the lawsuit. (Britt v. Superior Court (1978) 125 Cal. App. 3d 844, 856, 859.)

The Court considers that while Allergan Defendants may have provided a colorable argument as to the direct relevance of the psychological records to the damages alleged by Jennifer, the other facts of (1) the patient-psychotherapist privilege, (2) the potential availability of other sources of discovery that are not privileged, and (3) the limited nature of the non-economic damages sought by Plaintiff militate against the allowance of the discovery sought under the circumstances. As to the first consideration, the Court notes that Jennifer, the holder of the psychotherapist-patient privilege, refuses to permit the disclosure of the communications by and between Jennifer and Jennifer’s therapists. As to the second consideration, Allergan Defendants have not indicated what other steps have been taken to discover the information sought about Jennifer’s relationship with John other than seeking discovery from Jennifer and seeking the records from Jennifer’s therapists. Specifically, the Court notes that there is nothing before the Court to indicate that other non-privileged and non-private sourced of information have not been sought to inform Allergan Defendants about the relationship and loss of consortium of Jennifer prior to resorting to the instant information sought (i.e., other people with knowledge of their relationship, social media accounts, electronic correspondence between Jennifer and John, et cetera). As to the third consideration, the Court notes that this is not the typical case where psychological records are discovered, as Jennifer is not claiming any extraordinary non-economic injuries associated with the injury, nor claiming any psychological condition such as PTSD, clinical depression, or similar maladies, but only generalized emotional distress and loss.

Finally, the broad scope of the discovery sought by Allergan Defendants indicates that there are no specific injuries that they are seeking to test by means of limited discovery into confidential and private information. Rather, the subpoenas appear to be more akin to a fishing expedition into private portions of Jennifer’s life. Under these conditions, the Court finds that even if Allergan Defendants have demonstrated the direct relevance of the information sought to the matters being litigated, the balance the rights between Allergan Defendants’ right to discover relevant facts and Jennifer’s privacy interest weighs much more strongly in favor of Jennifer’s right to privacy.

Accordingly, the Court will grant the motion to quash.

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RULING : below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Allergan, Inc. and Allergan U.S.A., Inc. d/b/a Pacific Communications’ Motion to Strike and Plaintiffs Jennifer Hasso and John Hasso’s Motion to Quash Subpoena came on regularly for hearing on December 11, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO STRIKE IS GRANTED.

THE MOTION TO QUASH IS GRANTED.