The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
:
STACEY WOLKING and DARYL
WOLKING, :
Plaintiffs CIVIL ACTION NO. 3:23-cv-806
:
v. (JUDGE MANNION)
:
HENRY LINDNER and YOUNGS
APOTHECARY, INC., d/b/a :
TUNKHANNOCK
COMPOUNDING CENTER, :
Defendants :
MEMORANDUM
Plaintiffs, who claim that Defendant Tunkhannock Compounding
Center was negligent in its care of Stacey Wolking, (Doc. 1), have requested
from Defendant certain information relating to other patients, (Doc. 45), to
which requests TCC objects. (Doc. 46). The court ordered that the parties
submit supplemental briefing regarding this request, (Doc. 47), and they
have done so. (Doc. 48; Doc. 49).
I. THE CLAIMS
The Complaint alleges that Stacey Wolking met with Dr. Henry Lindner
once in person, and thereafter consulted him by email and phone, for advice
and treatment related to her symptoms of fatigue, brain fog, and malaise.
(Doc. 1 ¶9–11). Dr. Lindner diagnosed her with babesiosis, an infection
caused by a babesia parasite, “without ever confirming his diagnosis with a
blood smear examination or a PCR test,” which practice is “standard” for
doctors in the U.S. (Id. ¶12–16). He prescribed her a combination of
antimicrobial medications and corticosteroids. (Id. ¶¶20, 29). He also told
Stacey that he had diagnosed his daughter Valerie with babesiosis and had
developed the treatment program for her. (Id. ¶28).
Despite Stacey’s complaints of severe adverse side effects, Dr.
Lindner prescribed her increasingly higher dosages of corticosteroids, (Id.
¶¶31–60), often dosages significantly higher than a reasonable physician
would typically prescribe. (Id. ¶32). He informed Stacey that his daughter
Valerie had also taken high dosages of corticosteroids and had suffered
adverse side effects. (Id. ¶34, 37, 53).
During the course of this treatment, Lindner directed Stacey to fill her
prescriptions at TCC instead of her local pharmacy, telling her that her local
pharmacy might complain to the medical board about the high doses. (Id.
¶71). TCC provided Stacey “with the equivalent of 19,000 milligrams of
prednisone in a period of less than two months.” (Id. ¶74).
Defendants’ conduct “caused Stacey to suffer severe physical and
emotional pain and distress that she became suicidal, refused all medical
treatments, asked her doctors to allow her to die, and spent approximately
two days in hospice care at Loudoun Hospital” in Virginia. (Id. ¶75). Plaintiffs
claim that TCC provided Ms. Wolking with corticosteroid prescriptions “which
they knew or should have known were excessive, dangerous, inappropriate,
and/or improper”; that TCC did so “in violation of the rules, regulations,
practices, policies, and/or guidelines in place for the dispensing of
prescription corticosteroids by a licensed pharmacy”; and that it “failed to
exercise due diligence in its professional capacity” by not contacting Dr.
Lindner about the unreasonably high dosages, taking steps to correct his
error, or refusing to fill such prescriptions. (Id. ¶¶96–98).
Sadly, Dr. Lindner’s daughter Valerie passed away in December 2023.
(Doc. 30). Her obituary states that “[s]he lost her long battle with a tick-borne
disease.” (Doc. 31).
II. THE REQUEST
Plaintiffs requested that Defendant:
[D]escribe the prescriptions written by Henry Lindner which were
filled at Tunkhannock Compounding Center in 2020, 2021, and
2022: the total number, the drug types and dosages, and the
amount billed and earned by Tunkhannock Compounding Center as
a result of these prescriptions. (Doc. 45-1 ¶12).
[Produce the following]:
o All documents showing the corticosteroid prescriptions
dispensed to Valerie Lindner in 2021 and 2022, including
patient history documents and prescription documents. (Doc.
45-2 ¶1).
o Records in PK dispensing software showing manufacturer of
corticosteroids dispensed to Valerie Lindner and Stacey
Wolking in 2021 and 2022. (Id. ¶2).
o Any and all emails or other communication between Dr. Henry
Lindner and any TCC employee, in 2020 and the present,
concerning his babesiosis patients and/or corticosteroid
dosing and/or his treatment of Valerie Lindner for babesiosis.
(Id. ¶4).
o Any and all emails or other communications between TCC
employees in 2020 and the present, concerning Dr. Lindner’s
babesiosis patients and/or corticosteroid dosing and/or Dr.
Lindner’s treatment of Valerie Lindner for babesiosis. (Id. ¶5).
o Records or data showing total amounts of prednisone,
dexamethasone, and any other corticosteroid acquired and
dispensed by TCC in 2021 and 2022, and manufacturers or
each drug and entities from which they were acquired by TCC.
(Id. ¶6).
[Designate officers authorized to testify as to]:
o Corticosteroid prescriptions dispensed to/for the benefit of
Valerie Lindner, (Doc. 45-3 ¶d);
o History of prescriptions written by Dr. Henry Lindner and filled
by TCC, including amounts earned by TCC from Dr. Lindner’s
prescriptions from 2013–2022, (Id. ¶e);
o Manufacturer of prednisone and dexamethasone dispensed
to Stacey Wolking and/or Valerie Lindner, identity of any entity
from which prednisone and dexamethasone were purchased
by TCC, (Id. ¶L);
o Total amounts of prednisone, dexamethasone, and any other
corticosteroid acquired and dispensed by TCC in 2021 and
2022, and manufacturers of each drug and entities from which
they were acquired by TCC, (Id. ¶m);
o Percentage of TCC revenue attributable to corticosteroids,
and to prescriptions written by Dr. Henry Lindner, in 2021 and
2022. (Id. ¶n).
(See Doc. 45). Defendant objects to these requests. (Doc. 46).
III. LEGAL STANDARD
Parties to a civil action “may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties’ relative
access to the relevant information, the parties’ resources, the importance of
the discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b). A
request is relevant “if there is any possibility that the information may be
relevant to the general subject matter of the action.” Kegerise v.
Susquehanna Twp. Sch. Dist., Civ. No. 1:CV-14-0747, 2016 WL 2736048,
at *1 (M.D. Pa. May 11, 2016). “Information within the scope of discovery
need not be admissible in evidence to be discoverable.” Rule 26(b).
“A party may move for an order compelling disclosure or discovery.”
Fed. R. Civ. P. 37(a)(1). The initial burden is on the moving party to
demonstrate that the requested discovery falls within Rule 26(b)’s scope.
Schiavone v. Luzerne County, 243 F.R.D. 34, 37 (M.D. Pa. 2023). If this
burden is met, the nonmoving party must demonstrate that that the
requested discovery is not within Rule 26’s scope or is not sufficiently
relevant to justify the burden of producing it. Id.
IV. THE OBJECTIONS
TCC contends that the requested discovery is irrelevant, not
proportional to the needs of the case, privileged under the HIPAA Privacy
Rule, and not discoverable under Pennsylvania law. (Doc. 48 at 7–10).
Because information protected by the Privacy Rule may be disclosed
pursuant to a court order, 45 C.F.R. §164.512(f)(1)(ii)(A), the court need not
address that ground of objection again. (See Doc. 47 at 3).
A. Relevance
TCC asserts that because Valerie Lindner is not a party to this case,
her treatment and prescriptions are not at issue and thus not relevant to
Plaintiffs’ claims or defenses. (Doc. 48 at 7).
B. Proportionality
TCC also submits that Plaintiffs’ request is not proportional to the
needs of the case “because it does not assist in what’s at stake in the action,
i.e., the cause of Ms. Wolking’s damages stemming from her alleged
treatment by Dr. Lindner and the importance reaching that conclusion.” (Doc.
48 at 8). It argues that the requested information will not make more or less
likely any fact pertaining to “the liability and cause of Ms. Wolking’s
damages.” (Id. at 8). TCC further asserts that “there is nothing to establish
that babesiosis or the treatment of the disease was the cause of, or even
related to, Ms. Lindner’s death,” and so making comparison between her and
Stacey Wolking “would be highly speculative and based on conjecture.” (Id.
at 8).
C. Pennsylvania law
Other federal courts have applied Pennsylvania law regarding
discovery of medical records in diversity cases, see Peronis v. United States,
2:16-cv-1389, 2017 WL 3705058, at *2 (W.D. Pa. Aug. 28, 2017); Creely v.
Genesis Health Ventures, Inc., No. Civ. 04-cv-679, 2004 WL 2943661, at
**3–4 (E.D. Pa. Dec. 17, 2004), and Plaintiffs do not dispute that it applies.
(Doc. 49 at 14–15).
Defendant references the balancing test that has been applied in
evaluating a request for medical information, see Lykes v. Yates, 77 A.3d
27, 31 (Pa. Super. Ct. 2013), but does not advance a position as to what
result that test yields here. (Doc. 48 at 910). It also relies on Buckman v.
Verazin, 54 A.3d 956, 964 (Pa. Super. Ct. 2012) for the proposition that “[a]ny
information related to third parties that have not given their consent is
confidential and not relevant to this negligence claim against Tunkhannock.”
(Doc. 48 at 10).
V. PLAINTIFFS’ ARGUMENT
A. Relevance
Plaintiffs submit that the prescriptions written by Dr. Lindner between
2013 and 2022 are relevant to (1) evaluate the conflicting testimony of
Lindner and Courtney Young of TCC as to whether TCC spoke to Lindner
about Ms. Wolking’s prescriptions; (2) to assess the financial impact of
Lindner’s prescriptions and thus the motive of TCC to challenge his
decisions; (3) to assess Young’s conduct in consulting Dr. Lindner about Ms.
Wolking’s prescriptions; and (4) to assess the pharmacists’ knowledge of
safe dosages by reading the package inserts provided by manufacturers.
(Doc. 49 at 3–8). As to its requests for communications related to other
patients, Plaintiffs assert that such information is relevant to their “theory that
TCC established a pattern and practice based on information about other
patients” and to the pharmacists’ knowledge about babesiosis and the risks
of corticosteroid prescriptions. (Id. at 8).
B. Proportionality
As to proportionality, Plaintiffs argue that the burden and expense
involved in producing such discovery would be minimal, because TCC has
access to its own data and Young has testified that corticosteroid
prescriptions were not a large aspect of TCC’s business. (Doc. 49 at 11).
According to Plaintiffs, “[t]he minimal burden involved is appropriate in a case
where TCC’s negligence nearly killed Ms. Wolking and has injured her for
life.” (Id. at 12).
C. Pennsylvania Law
With regard to Defendant’s argument about the application of
Pennsylvania law to discovery of confidential medical information, Plaintiffs
contend that disclosure of Valerie Lindner’s information would not harm any
physician-patient relationship because she is deceased. They further
suggest that identifying information about other patients can be redacted.
(Doc. 49 at 14 (quoting Roth v. Sunrise Senior Living Mgmt., Inc., No. 2:11-
cv-4567, 2012 WL 748401, at *2 (E.D. Pa. Mar. 8, 2012) (“Pennsylvania state
privacy laws do not preclude disclosure of the redacted medical records in
this case.”)).
D. Patient profile
Finally, Plaintiffs reiterate their request for Ms. Wolking’s “patient
profile.” (Doc. 49 at 9). Though Defendant mentions this request in its
supplemental brief, (Doc. 48 at 2), it offers no objection thereto.
VI. DISCUSSION
The court finds that Plaintiffs have satisfied their burden of
demonstrating that the requested discovery is within the scope of Rule 26(b).
The requested information about prior corticosteroid prescriptions filled by
TCC, manufacturer information, and communications concerning babesiosis
patients and/or corticosteroid dosing, even if related to other patients, may
be relevant to Plaintiffs’ claim that TCC was negligent in its care of Stacey
Wolking. Such information could indicate that the pharmacists were on notice
of the proper dosages or could aid in evaluating testimony regarding their
consultations with Dr. Lindner regarding high dosages. And given the serious
nature of the allegations here and the minor burden on Defendant to produce
a portion of its own information, the court finds that the request is proportional
to the needs of the case.
With respect to Valerie Lindner’s medical information, the court finds
that a privacy interest does not outweigh the need for disclosure because
Ms. Lindner is deceased and Dr. Lindner has testified about her medical
history. As to other patients’ information, redaction will adequately ameliorate
the concern of privacy intrusion. Finally, the court finds that Plaintiffs’ request
for Plaintiff Stacey Wolking’s “patient profile” is relevant and proportional to
the needs of the case. Accordingly, Plaintiffs’ requests are within the scope
of Fed. R. Civ. P. 26(b)(1), and Defendant must fulfill them.
The court advises the parties that this memorandum does not opine on
the admissibility of the requested information at trial.
VII. CONCLUSION
For the foregoing reasons, the court concludes that Plaintiffs’ discovery
requests are within the scope of Federal Rule 26(b)(1). It will therefore order
that Defendant fulfill these requests. Such order follows.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: May 3, 2024
23-806-02