Motion-Secondary: Diana Blum, MD vs Sutter Health et al

On March 04, 2015 a Motion-Secondary was filed involving a dispute between Diana P. Blum, and Palo Alto Foundation Medical Group, Inc., Palo Alto Medical Foundation, Sutter Health, for Wrongful Termination Unlimited(36) in the District Court of Santa Clara County.

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THERESA J.BARTA (StateBarNo.150995)
‘ L E D
BARTA LAW
4041 MacArthur Blvd..
Newport Beach,
Suite 280
California 92660
F rt
Tel. (949) 833-3383
Fax (949) 209-2530
Email: theresaKLDbarti-lawxom

Attorney for Plaintiff,
Diana P. Blum, M.D.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

DIANA P. BLUM, M.D.. Case No. 115-CV-277582

DECLARATION OF THERESA BARTA
Plaintiff, FILED IN SUPPORT OF MOTION TO
13 FILE RECORDS UNDER SEAL

14
VS.
Trial
Time:
Date: January
8:45 am.
8,2018 “Y FM
15 SUTTER HEALTH, a California corporation; Dept.:
Judge:
Vvvvvvvvvvvvvvvvvvvvv

PALO ALTO FOUNDATION MEDICAL
16 GROUP, a California corporation; PALO
ALTO MEDICAL FOUNDATION, a
17 California corporation; and DOES 1 through
20,

Defendants.

DECLARATION IN SUPPORT OF MOTION TO FILE RECORDS UNDER SEAL
DECLARATION OF THERESA J. BARTA

I, THERESA J. BARTA, do hereby declare:

l. I am an attorney admitted to practice in this state and before this Court. and I am attorney

of record for Plaintiff, Diana Blum, MD. (“Dr. Blum“). l have personal knowledge ofthe following facts

and could and would competently testify and attest to them. I make this declaration in support of

Plaintiff‘s Motion to File Records Under Seal.

2. Attached hereto as Exhibit A isa true and correct copy ofthe Court‘s Order Granting

Defendants" Joint Motion to Compel Independent Psychiatric Medical Examination of Plaintiff.

10 3. In complete disregard and violation ofthe Court’s Order. defendants' expert. Dr. Mark

ll Lipian, issued a Report that includes seventy-nine pages of“opinions and conclusions" about a purported

QM he rendered, one that has nothing to do with Plaintiff‘s “emotional distress”. Plaintiff did not

consent to Dr. Lipian purportedly “rendering a diagnosis.” Plaintiff only communicated with Dr. Lipian

pursuant to a Court Order that limited him to determinations about the “nature. extent and causes of

emotional distress" that Plaintiffis claiming in her lawsuit.

4. Thus, I am ﬁling a Motion for Sanctions and the Preclusion of Evidence Prepared, or

Submitted by Mark Lipian, M.D., in which Plaintiffis moving to preclude Dr. Lipian, his IME, and the

Report he prepared in this case. In order to show the Court that the Report violates the Court’s Order. the

Report must be available to the Court. The Report, however. is ﬁlled with inﬂammatory. false statements

that Dr. Lipian asserts for the sole purpose ofimpeaching the Plaintiff‘s credibility and arguing that her

perceptions of the key events at issue in this lawsuit are distorted.

5. The Report also contains detailed references, quotes. and discussions about Plaintiff‘s

medical records. as well as Plaintiff’s communications with other physicians (which are privileged).

Additionally, the Report contains Lipian’s own “psychotherapy notes". as well as Plaintiffs medical

2
DECLARATION IN SUPPORT OF MOTION TO FILE RECORDS UNDER SEAL
history and communications between she and her own physicians. Because all ofthese in the Report

constitute private, privileged medical information (see e.g., HIPPA: 42 U.S.C. §1320 et.seq., California

Medical Conﬁdentiality Act: Civil Code §56 et.seq., and Evidence Code §§ 912, 993, 994: the Physician-

Patient privilege), Plaintiffthus has an overriding privacy interest in having the Report (and quotes from

it) ﬁled under seal so as to not be accessible to the public.

6. Dr. Lipian’s Report does notjust include private, medical information about the Plaintiff.

but - also in violation ofthe Court's Order - the Report reveals private, medical information about third

parties (i.e.,members of Plaintiffs family).

7. The speciﬁc records that Plaintiff seeks to ﬁle under seal are limited to the Report Dr.

10 Lipian prepared (1.6..Exhibit F to the Declaration of Theresa Barta Filed in Support of Plaintiffs Motion

11 for Sanctions and the Preclusion of Evidence) and certain pages and lines inthe Memorandum of Points

12 and Authorities Filed in Support of Plaintiff‘s Motion for Sanctions and the Preclusion of Evidence.

13 8. True and correct copies of Exhibit F to the Declaration of Theresa Barta (I.€., Dr. Lipian’s

14 Report) as well as the Memorandum of Points and Authorities Filed in Support of Plaintiffs Motion for

15 Sanctions and the Preclusion of Evidence are Mherewith in a separate envelope sealed and labeled

16 "CONDITIONALLY UNDER SEAL”. Also included in the envelope is a redacted copy ofthe

17 Memorandum of Points and Authorities for the Court’s convenience in cross-referencing the redactions.

18 9. The Court has already determined that Dr. Lipian’s Report is, and should be. treated as

19 Conﬁdential. The Court’s Order Granting Defendants’ Joint Motion to Compel Independent Psychiatric

Medical Examination of Plaintiff speciﬁcally states:

"The parties agree that allmedical and psychotherapy records review by Dr.
Lipian, as well as any report or other written document prepared by Dr.
Lipian of the psychiatric examination of Plaintiff, shall be designated as
“CONFIDENTIAL” and protected pursuant to the parties‘ Stipulated
Protective Order.” [Court’s Order. p. 2:1 [-12, attached as Exhibit A hereto]

3
DECLARATION IN SUPPORT OF MOTION TO FILE RECORDS UNDER SEAL
10. That Court Order also explicitly recognizes that defendants m that Dr. Lipian‘s Report

(Lei, which is a “report or other written document prepared by Dr. Lipian”) shall be designated as

“Conﬁdential” and protected as such.

[It Plaintiffhas a compelling, overriding interest in keeping Drr Lipian’s Report from being

accessed by the public e112” the fact it contains references to, and communications about, private medical

information of both herself and members of her family, Moreover, not only Plaintiff, but third parties will

be prejudiced and harmed ifthe Report is not sealed. Finally, the request isnarrowly tailored and limited

to a very small part ofthe entire record that Plaintiff filed.

Ideclare under penalty of perjury under the laws of the State of California that the foregoing is
l0
true and correct and that this declaration was executed on January 4, 2018, at Newport Beach, California.
ll
12 Jilin/1%“?
THERESA J.BARTA
l3

4
DECLARATION IN SUPPORT OF MOTION TO FILE RECORDS UNDER SEAL
Exhibit “A”
(END
SUPERIOR COURT OF CALIFORNIF I Ens?)
,
COUNTY OF SANTA CLARA DEC ‘ 1 2016

BY
Sunkimmaoiuggg
TY
DIANA P. BLUM, M.D., CASE NO. 1lSCV 277582 4‘
’70.
\oooximmas‘wNH

"3r
D] ORDER GRANTING
Plaintiff, .DEFENDANTS’ JOINT MOTION To
COMPEL INDEPENDENT
PSYCHIATRIC MEDICAL
VS. EXAMINATION 0F PLAINTIFF
vvvvvvvvvvvvvvvv

SUTI'ER HEALTH, a California corporation;
PALO ALTO FOUNDATION MEDICAL
GROUP, INC., a California corporation; PALO
ALTO MEDICAL FOUNDATION, a Date: NOVEmb“ 22’ 2016
California corporation; and DOES 1 through 20, Time: 9:00 am.
Dept: 8
Defendants. Judge: Hon. Maureen A. Folan

Defendants’ SUTTER HEALTH, PALO ALTO FOUNDATION MEDICAL GROUP,

INC., and PALO ALTO MEDICAL FOUNDATION (collectively Defendants) Motion to

Compel Plaintiff DIANA BLUM's Independent Psychiatric Examination came on regularly for

heating in Department 8 of the above-entitled court on November 22, 2016 at 9:00 am. Hieu

Tran Williams of Gordon Rees Scully Mansukhani LLP appeared on behalf of
Defendant PALO

ALTO FOUNDATION MEDICAL GROUP, INC. Theresa Barta appeared on behalf of Plaintiff
mgmmsmuBBGZSSGEEEZE

DIANA BLUM, M.D. Maiko Nakaxai-Kanivas of Littler Mendelson PC appeared on behalf of

Defendants SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION.

The Court, having reviewed and considered the papers ﬁled in support of and in

opposition to Defendants’ Motion, and considering the oral argument of counsel, and good cause

appealing therefor,
NNN.NNNI\)

IT IS HEREBY ORDERED:
Defendants’ Motion to Compel Independent Psychiatric Examination is GRANTED.

M
M

TO COMPEL INDEPENDENT
[PROPOSED] ORDER GRANTING DEFENDANTS' JOINT MOTION
PSYCHIATRIC MEDICAL EXAMINATION 0F PLAINTIFF
-
Plaintiff Diana P. Blum, MD. is ordered to undergo a psychiatric examination conducted .

by Dr. Mark Lipian. The parties are ordered to meet and confer regarding a mutually agreeable

date, time, and location for the examination.

Dr. Lipian’s exam is limited to determining the nature, extent, and cause of plaintiff‘s

alleged emotional distress,
\OWQO‘UI-bmwr-
if any. During the examination, Dr. Lipian shall not be allowed to

inquire into Dr. Blum’s family’s medical and/or psychiatric historyr

Because good cause exists and Dr. Lipian has signed the afﬁdavit attesting that he will

comply with the parties’ Stipulated Protective Order, Dr. Lipian may have access to plaintiff‘s

medical and psychotherapy records from 2009 (when plaintiff‘s employment began) through the

present. None of Dr. Lipian’s staff will review any of plaintiff‘s medical and psychotherapy

records. The parties agree that all medical and psychotherapy records reviewed by Dr. Lipian, as

well as any report or other written document prepared by Dr. Lipian of the psychiatric
examination of Plaintiff, shall be designated as “CONFIDENTIAL” and protected pursuant to
the parties' Stipulated Protective Order.

No attorneys or other third parties are to be present during the examination. Dr. Lipian

and/or plaintiff may make an audio-recording ofthc examination. No physically painful tests or

invasive procedures will be administered.
amqNHo;;:;;;;§:s

~14—~

IT IS SO RDERPLD.”

MOI/28 20$ Judge Maureen A. Folan
Dated: 2 016
Judge of the Superior Court

NHNNNNNN

28
“ﬁlm/10511144“

[PROPOSED] ORDER GRANTING DEFENDANTS’ JOINT
MOTION TO COMPEL INDEPENDENT
-
PSYCHIATRIC MEDICAL EXAMINATION OF PLAINTIFF
PROOF OF SERVICE - 5
201%
‘l AN
STATE OF CALIFORNIA, COUNTY OF ORANGE
C 0U“ta 5‘3”
\etk 0:; gem 0‘ 9'“ pDEW“
I am employed in the county of Orange, State of California. Iam over the age‘ gﬁcmﬂ ot
to the within action; my business address is5160 Campus Drive, Newport Beachaéa 'f '
60.

On January 4, 2018, I served the foregoing document(s) described as: on allinterested parﬁésﬁon '17
this action by placing a true copy thereof enclosed in a sealed envelope addressed DECLARATION OF
THERESA BARTA FILED IN SUPPORT OF MOTION TO FILE RECORDS UNDER SEAL as
follows:

Attorneys for Sutter Health and Palo Alto Attorneys for Palo Alto Foundation Medical
Medical Foundation: Group. Inc.:

Lindbergh Porter. Esq. Marcie Ison Fitzsimmons, Esq.
Maiko Nakarai—Kanivas, Esq. Gordon Rees LLP
Littler Mendelson, PC, 275 Battery St, #2000
333 Bush Street, 34'h Floor San Francisco, CA 941 11

San Francisco. CA 94104 Tel: (415) 986-5900
Tel: (415) 433-1940 Fax: (415) 986—8054
Fax: (415) 3998490 Email: MIsom@g0rdonrees.com
Email: mnakaraikanivanﬁtlﬁercom

X (BY PERSONAL SERVICE)
A By
I
personally
caused tO
delivering copies to the person
be delivered such envelope by
served.
hand to the ofﬁces Of the addressee pursuant t
C.C.P.§101l.
(BY MAIL) —I deposited such envelope in the mail at Newport Beach, California. The envelope
15 with familiar” ﬁrm’s
was mailed postage thereon fully prepaid. I am “readily with the practice of
collection and processing correspondence for mailing. Under that practice it would be deposited with U.S
16 Service that with
Postal on same day postage thereon fully prepaid at Newport Beach, California in the
ordinary course of business. I am aware that on motion Ofthe party served, service is presumed invalid if
17 postal cancellation date or postage meter date is or than one (1) day after date of deposit for mailing in
afﬁdavit.
18 X— (BY ELECTRONIC TRANSMISSION) — I transmitted PDF version of this
a document by
electronic mail on January 5, 2018 to the party(s) identiﬁed on the attached service list using the e-mail
19 address(es) indicated.

I declare under penalty of perjury under the laws of the State Of California that the above istrue and
correct.

m Qéméﬂ
Theresa J. Barta

DECLARATION IN SUPPORT OF MOTION TO FILE RECORDS UNDER SEAL

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

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Document Filed Date

January 05, 2018

Case Filing Date

March 04, 2015

County

Parties

Christine A. Lawler Attorney For The Defendant
Diana P. Blum Plaintiff
Lindbergh Porter Attorney For The Defendant
Palo Alto Foundation Medical Group, Inc. Defendant
Palo Alto Medical Foundation Defendant
Sutter Health Defendant
Maiko Nakarai-Kanivas Attorneys for Defendants
Theresa Barta-Vavrock Attorney
James Barber Attorney
Jeffrey Wertheimer Attorney
Charles Louderback Attorneys for Plaintiffs
Hieu Tran Attorney
Stacey Pratt Attorneys for Plaintiffs
Marcie Fitzsimmons Attorneys for Defendants
Sean Piers Attorneys for Defendants
Hieu Williams Attorney
Nicole Williams Attorneys for Defendants
Theresa Barta Attorney

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Motion-Secondary: Diana Blum, MD vs Sutter Health et al

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