Preview
FILED
2/15/2023 3:35 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Scott Anders DEPUTY
CAUSE NO. DC-21-18263
ROBYN LANGLEY IN THE DISTRICT COURT
§§§§§§§§§§§§
Plaintiff,
V. 193” JUDICIAL DISTRICT
NEWCRESTIMAGE HOLDINGS, LLC
and NEWCRESTIMAGE
MANAGEMENT, LLC d/b/a AC
HOTEL DOWNTOWN DALLAS, and
THOMAS PROTECTION GROUP,
LLC
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO DEFENDANT NEWCRESTIMAGE MANAGEMENT,
LLC’S MOTION TO COMPEL MEDICAL RECORDS OF DAVID AZOUZ, MD AND
MOTION TO STRIKE PLAINTIFF’S MOTION TO QUASH
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Robyn Langley, (hereinafter referred to as “P1aintiff”), and files this
Response to Defendant Newcrestimage Management, LLC’s Motion To Compel Medical Records
Of David Azouz, Md And Motion To Strike Plaintiff’s Motion To Quash, and respectfully shows
this Court as follows:
I. BACKGROUND
On or about February 17, 2021, Plaintiff was injured when she was assaulted at
Defendant’s hotel. Plaintiff was punched in the face by a Visitor of a guest of Defendant’s hotel,
and as a result her mouth and lip were injured and disfigured. Plaintiff sought treatment from Dr.
David Azouz, a plastic surgeon, who performed the following procedures on her lip and mouth:
emergency flap closure of her left upper lip involving the vermilion border, complex closure of an
intraoral laceration, and debridement of the upper lip and intraoral laceration.
On March 30, 2022, Plaintiff served her Initial Disclosures and produced her Medical
RESPONSE TO DEFENDANT’S MOTION TO COMPEL
Page 1 of 8
Record and Billing Affidavits pursuant to Texas Civil Practice & Remedies Code §18.001. The
medical records produced include Plaintiff’s records from Azouz Plastic & Cosmetic Surgery from
February 17, 2021, through the present date. During this timeframe, Plaintiff saw Dr. Azouz not
only for her facial surgeries she is claiming in this lawsuit, but also for two other cosmetic, elective
procedures. These unrelated procedures—that are not claimed in this lawsuit—were not performed
on, or related to, Plaintiffs head, face, or neck. Plaintiff did not redact or withhold any records
from Dr. Azouz; therefore, the records produced include records related to these two other,
unrelated, procedures.
Now, Defendant seeks to compel the following from Dr. Azouz:
Any and all MEDICAL and RADIOLOGY (films reports) FROM
FEBRUARY l7, 2011 TO THE PRESENT, PERTAINING T0: ROBYN
LANGLEY, (DOB: 2/23/ 1994) including but not limited to, inpatient,
outpatient and emergency room treatment, all clinical charts, reports, notes,
tests, test results, diagnoses, prognoses, office records, therapy records,
order sheets, progress notes, nurse's notes, clinic records, treatment plans,
admission records, discharge summaries, requests for and report of
consultations, documents, prescriptions or medication records, notes
regarding prescriptions or medications, photographs (color photographs
should be reproduced in color), correspondence, test results, sworn
statements, questionnaires/histories, office and doctor's handwritten notes,
records received by other physicians, including, but not limited to any and
all x-ray films and/or images, including, but not limited to, radiology films
received as digital images produced with the PACs, any and all CT Scans
and MRI's, whether in printed form or electronically stored.
II. ARGUMENT & AUTHORITIES
“[T]he Texas Constitution protects personal privacy from unreasonable intrusion?” The
Fifth District Court of Appeals followed this finding of the Texas Supreme Court in 1995, and that
1
Texas State Employees Union v. Texas Dep ’t ofMental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex.
1987).
RESPONSE TO DEFENDANT’S MOTION TO COMPEL
Page 2 of 8
decision was upheld by the U. S. Supreme Court? Additionally, a discovery request is outside
the scope of discovery when (1) it asks for information that is not relevant, or (2) the information
requested will not lead to admissible evidence.3 Furthermore, a request for all documents Without
limitation on time, place, or subject matter is overbroad.4 Generally, a request for “all documents”
is merely a fishing expedition into the other party’s files, which is prohibited.5
Defendant seeks to obtain, without limitation, any and all of Plaintiff’ s personal and private
health information from 201 1 through the present date, which includes personal and private health
information that has no bearing on the facts of this lawsuit. The information sought is overly broad
in terms of time and scope, amounts to a mere fishing expedition, and is apparently intended solely
for the purposes of harassment and not for the purpose of legitimate discovery.6
Moreover, Plaintiff asserts its privileges to the extent that this request enquires into matters
that are protected by HlPAA and the physician-patient privilege as set forth in Tex. R. Evid. 509
and 510. Texas Rules of Evidence protect from disclosure confidential communications between
a physician and patient and records of the identity, diagnosis, evaluation, or treatment of a patient
by a physician that are created or maintained by a physician.7 An exception to the general rule
applies where "any party relies on the patient's physical, mental, or emotional condition as a part
of the party's claim or defense and the communication or record is relevant to that
condition.“ In order for this exception to apply, two conditions must be present: (l) the evidence
City of Sherman v. Hemy, 910 S.W.2d 542, 551 (Tex. App. - Dallas 1995), certiorari denied, 519 U.S. 1156
2
(1997).
3
TRCP 192.3(a); see In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Axelson, Inc. v. Mcllhany, 798 S.W.2d
550, 553 (Tex. 1990).
4
Texaco, Inc. v Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).
5
In re American Optical, 988 S.W.2d 711, 713 (Tex. 1998).
6
K-Mart Corp. v. Sanderson, 937 S.W.2d 429 (Tex. 1996); Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491 (Tex.
1995); Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989).
7
Tex. R. Evid. 509(0); In re Collins, 286 S.W.3d 911, 916 (Tex. 2009) (orig. proceeding); Mutter v. Wood, 744
S.W.2d 600 (Tex. 1988) (orig. proceeding).
8
Id.
RESPONSE TO DEFENDANT’S MOTION TO COMPEL
Page 3 of 8
sought to be admitted must be relevant to the condition at issue; and (2) the condition must be
relied upon as part of a party's claim or defense, "meaning that the condition itself is a fact that
carries some legal significance.”
The Texas Supreme Court has recognized that “just because a condition may be 'relevant'
to a claim or defense does not mean a party 'relies upon the condition as a part of the party's claim
or defense."'1° “[T]he patient-litigant exception to the privilege applies when a party's condition
relates in a significant way to a party's claim or defense.”“ Records “should not be subject
to discovery if the patient's condition is merely an evidentiary or intermediate issue of fact, rather
than an 'ultimate' issue for a claim or defense, or if the condition is merely tangential to a claim
rather than 'central' to it.”12 “[T]he information communicated to a doctor or psychotherapist may
be relevant to the merits of an action, but in order to fall within the litigation exception to the
privilege, the condition itself must be of legal consequence to a party‘s claim or defense.”13
Even where these conditions are met, the trial court must still "ensure that the production
of documents ordered, if any, is no broader than necessary, considering the competing interests at
stake" by conducting an in camera review of the documents and redacting or otherwise protecting
14
any information not meeting the standard.
This incident forming the basis of this lawsuit occurred on February 17, 2021, and
Defendant seeks medical records from 2011, which pre-date and are unrelated to the medical
treatment Plaintiff sought as a result of this incident. Plaintiff previously served her medical
9
R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994) (orig. proceeding); In re Morgan, 507 S.W.3d 400, 404 (Tex.
App—Houston [lst Dist.] 2016, orig. proceeding).
1°
In re Turney, 525 S.W.3d 832, 838-39 (Tex. App—Houston [14th Dist.] 2017), quoting Ramirez, 887 S.W.2d at
842 (Tex. 1994).
11
Id.
12
Id.
13
Id.
14
Id.
RESPONSE TO DEFENDANT’S MOTION TO COMPEL
Page 4 of 8
records and bills related to the injuries and damages she sustained as a result of this incident.
Therefore, the medical records requested include Plaintiff’s privileged health information that is
completely unrelated to this lawsuit.
PRAYER
WHEREFORE, Plaintiff prays that this Honorable Court deny Defendant’s Motion to
Compel. Plaintiff further prays for such other and further relief, both general and specific, at law
or in equity, to which Plaintiff will be justly entitled.
Respectfully submitted,
Wolf Law, PLLC
By waje‘x/
Julie
Texas Bar No. 24051542
'ulie wolflaw llc.com
12222 Merit Dr., Suite 1200
Dallas, Texas 75251
Tel. (972) 338-4477
Fax. (972) 338-5044
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I certify that on this 15th day of February 2023, a true and correct copy of the
aforementioned document was served on all counsel of record, in accordance with the Texas Rules
of Civil Procedure.
WWW
Jul)Wolf
RESPONSE TO DEFENDANT’S MOTION TO COMPEL
Page 5 of 8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Denisse Palacios on behalf of Julie Wolf
Bar No. 24051542
denisse@wolflawpllc.com
Envelope ID: 72803207
Status as of 2/17/2023 8:32 AM CST
Associated Case Party: ROBYN LANGLEY
Name BarNumber Email TimestampSubmitted Status
Wolf Law PLLC service@wolflawpllc.com 2/15/2023 3:35:46 PM SENT
Associated Case Party: NEWCRESTIMAGE MANAGEMENT, LLC D/B/A AC HOTEL
DOWNTOWN DALLAS
Name BarNumber Email TimestampSubmitted Status
Christine YDuperroir cduperroir@bbarr.com 2/15/2023 3:35:46 PM SENT
Carol Chambers cchambers@bbarr.com 2/15/2023 3:35:46 PM SENT
Associated Case Party: THOMAS PROTECTION GROUP, LLC
Name BarNumber Email TimestampSubmitted Status
Josh Klinck josh@klincklaw.com 2/15/2023 3:35:46 PM SENT
Clifford A.Lawrence Clawrence948@sbcglobal.net 2/15/2023 3:35:46 PM SENT
Preview
FILED 2/15/2023 3:35 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Scott Anders DEPUTY CAUSE NO. DC-21-18263 ROBYN LANGLEY IN THE DISTRICT COURT §§§§§§§§§§§§ Plaintiff, V. 193” JUDICIAL DISTRICT NEWCRESTIMAGE HOLDINGS, LLC and NEWCRESTIMAGE MANAGEMENT, LLC d/b/a AC HOTEL DOWNTOWN DALLAS, and THOMAS PROTECTION GROUP, LLC Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S RESPONSE TO DEFENDANT NEWCRESTIMAGE MANAGEMENT, LLC’S MOTION TO COMPEL MEDICAL RECORDS OF DAVID AZOUZ, MD AND MOTION TO STRIKE PLAINTIFF’S MOTION TO QUASH TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Robyn Langley, (hereinafter referred to as “P1aintiff”), and files this Response to Defendant Newcrestimage Management, LLC’s Motion To Compel Medical Records Of David Azouz, Md And Motion To Strike Plaintiff’s Motion To Quash, and respectfully shows this Court as follows: I. BACKGROUND On or about February 17, 2021, Plaintiff was injured when she was assaulted at Defendant’s hotel. Plaintiff was punched in the face by a Visitor of a guest of Defendant’s hotel, and as a result her mouth and lip were injured and disfigured. Plaintiff sought treatment from Dr. David Azouz, a plastic surgeon, who performed the following procedures on her lip and mouth: emergency flap closure of her left upper lip involving the vermilion border, complex closure of an intraoral laceration, and debridement of the upper lip and intraoral laceration. On March 30, 2022, Plaintiff served her Initial Disclosures and produced her Medical RESPONSE TO DEFENDANT’S MOTION TO COMPEL Page 1 of 8 Record and Billing Affidavits pursuant to Texas Civil Practice & Remedies Code §18.001. The medical records produced include Plaintiff’s records from Azouz Plastic & Cosmetic Surgery from February 17, 2021, through the present date. During this timeframe, Plaintiff saw Dr. Azouz not only for her facial surgeries she is claiming in this lawsuit, but also for two other cosmetic, elective procedures. These unrelated procedures—that are not claimed in this lawsuit—were not performed on, or related to, Plaintiffs head, face, or neck. Plaintiff did not redact or withhold any records from Dr. Azouz; therefore, the records produced include records related to these two other, unrelated, procedures. Now, Defendant seeks to compel the following from Dr. Azouz: Any and all MEDICAL and RADIOLOGY (films reports) FROM FEBRUARY l7, 2011 TO THE PRESENT, PERTAINING T0: ROBYN LANGLEY, (DOB: 2/23/ 1994) including but not limited to, inpatient, outpatient and emergency room treatment, all clinical charts, reports, notes, tests, test results, diagnoses, prognoses, office records, therapy records, order sheets, progress notes, nurse's notes, clinic records, treatment plans, admission records, discharge summaries, requests for and report of consultations, documents, prescriptions or medication records, notes regarding prescriptions or medications, photographs (color photographs should be reproduced in color), correspondence, test results, sworn statements, questionnaires/histories, office and doctor's handwritten notes, records received by other physicians, including, but not limited to any and all x-ray films and/or images, including, but not limited to, radiology films received as digital images produced with the PACs, any and all CT Scans and MRI's, whether in printed form or electronically stored. II. ARGUMENT & AUTHORITIES “[T]he Texas Constitution protects personal privacy from unreasonable intrusion?” The Fifth District Court of Appeals followed this finding of the Texas Supreme Court in 1995, and that 1 Texas State Employees Union v. Texas Dep ’t ofMental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987). RESPONSE TO DEFENDANT’S MOTION TO COMPEL Page 2 of 8 decision was upheld by the U. S. Supreme Court? Additionally, a discovery request is outside the scope of discovery when (1) it asks for information that is not relevant, or (2) the information requested will not lead to admissible evidence.3 Furthermore, a request for all documents Without limitation on time, place, or subject matter is overbroad.4 Generally, a request for “all documents” is merely a fishing expedition into the other party’s files, which is prohibited.5 Defendant seeks to obtain, without limitation, any and all of Plaintiff’ s personal and private health information from 201 1 through the present date, which includes personal and private health information that has no bearing on the facts of this lawsuit. The information sought is overly broad in terms of time and scope, amounts to a mere fishing expedition, and is apparently intended solely for the purposes of harassment and not for the purpose of legitimate discovery.6 Moreover, Plaintiff asserts its privileges to the extent that this request enquires into matters that are protected by HlPAA and the physician-patient privilege as set forth in Tex. R. Evid. 509 and 510. Texas Rules of Evidence protect from disclosure confidential communications between a physician and patient and records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician.7 An exception to the general rule applies where "any party relies on the patient's physical, mental, or emotional condition as a part of the party's claim or defense and the communication or record is relevant to that condition.“ In order for this exception to apply, two conditions must be present: (l) the evidence City of Sherman v. Hemy, 910 S.W.2d 542, 551 (Tex. App. - Dallas 1995), certiorari denied, 519 U.S. 1156 2 (1997). 3 TRCP 192.3(a); see In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Axelson, Inc. v. Mcllhany, 798 S.W.2d 550, 553 (Tex. 1990). 4 Texaco, Inc. v Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). 5 In re American Optical, 988 S.W.2d 711, 713 (Tex. 1998). 6 K-Mart Corp. v. Sanderson, 937 S.W.2d 429 (Tex. 1996); Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d 491 (Tex. 1995); Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989). 7 Tex. R. Evid. 509(0); In re Collins, 286 S.W.3d 911, 916 (Tex. 2009) (orig. proceeding); Mutter v. Wood, 744 S.W.2d 600 (Tex. 1988) (orig. proceeding). 8 Id. RESPONSE TO DEFENDANT’S MOTION TO COMPEL Page 3 of 8 sought to be admitted must be relevant to the condition at issue; and (2) the condition must be relied upon as part of a party's claim or defense, "meaning that the condition itself is a fact that carries some legal significance.” The Texas Supreme Court has recognized that “just because a condition may be 'relevant' to a claim or defense does not mean a party 'relies upon the condition as a part of the party's claim or defense."'1° “[T]he patient-litigant exception to the privilege applies when a party's condition relates in a significant way to a party's claim or defense.”“ Records “should not be subject to discovery if the patient's condition is merely an evidentiary or intermediate issue of fact, rather than an 'ultimate' issue for a claim or defense, or if the condition is merely tangential to a claim rather than 'central' to it.”12 “[T]he information communicated to a doctor or psychotherapist may be relevant to the merits of an action, but in order to fall within the litigation exception to the privilege, the condition itself must be of legal consequence to a party‘s claim or defense.”13 Even where these conditions are met, the trial court must still "ensure that the production of documents ordered, if any, is no broader than necessary, considering the competing interests at stake" by conducting an in camera review of the documents and redacting or otherwise protecting 14 any information not meeting the standard. This incident forming the basis of this lawsuit occurred on February 17, 2021, and Defendant seeks medical records from 2011, which pre-date and are unrelated to the medical treatment Plaintiff sought as a result of this incident. Plaintiff previously served her medical 9 R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994) (orig. proceeding); In re Morgan, 507 S.W.3d 400, 404 (Tex. App—Houston [lst Dist.] 2016, orig. proceeding). 1° In re Turney, 525 S.W.3d 832, 838-39 (Tex. App—Houston [14th Dist.] 2017), quoting Ramirez, 887 S.W.2d at 842 (Tex. 1994). 11 Id. 12 Id. 13 Id. 14 Id. RESPONSE TO DEFENDANT’S MOTION TO COMPEL Page 4 of 8 records and bills related to the injuries and damages she sustained as a result of this incident. Therefore, the medical records requested include Plaintiff’s privileged health information that is completely unrelated to this lawsuit. PRAYER WHEREFORE, Plaintiff prays that this Honorable Court deny Defendant’s Motion to Compel. Plaintiff further prays for such other and further relief, both general and specific, at law or in equity, to which Plaintiff will be justly entitled. Respectfully submitted, Wolf Law, PLLC By waje‘x/ Julie Texas Bar No. 24051542 'ulie wolflaw llc.com 12222 Merit Dr., Suite 1200 Dallas, Texas 75251 Tel. (972) 338-4477 Fax. (972) 338-5044 Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that on this 15th day of February 2023, a true and correct copy of the aforementioned document was served on all counsel of record, in accordance with the Texas Rules of Civil Procedure. WWW Jul)Wolf RESPONSE TO DEFENDANT’S MOTION TO COMPEL Page 5 of 8 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Denisse Palacios on behalf of Julie Wolf Bar No. 24051542 denisse@wolflawpllc.com Envelope ID: 72803207 Status as of 2/17/2023 8:32 AM CST Associated Case Party: ROBYN LANGLEY Name BarNumber Email TimestampSubmitted Status Wolf Law PLLC service@wolflawpllc.com 2/15/2023 3:35:46 PM SENT Associated Case Party: NEWCRESTIMAGE MANAGEMENT, LLC D/B/A AC HOTEL DOWNTOWN DALLAS Name BarNumber Email TimestampSubmitted Status Christine YDuperroir cduperroir@bbarr.com 2/15/2023 3:35:46 PM SENT Carol Chambers cchambers@bbarr.com 2/15/2023 3:35:46 PM SENT Associated Case Party: THOMAS PROTECTION GROUP, LLC Name BarNumber Email TimestampSubmitted Status Josh Klinck josh@klincklaw.com 2/15/2023 3:35:46 PM SENT Clifford A.Lawrence Clawrence948@sbcglobal.net 2/15/2023 3:35:46 PM SENT