United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER GRANTING MOTION TO COMPEL AND
DISMISSING BLUEGRASS LAWNCARE OF ST. LOUIS,
D. NOCE UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the motions of defendant
Bluegrass Lawncare of St. Louis, LLC, for summary judgment
(Doc. 45); of defendant Midas Hospitality, LLC, to compel
discovery (Doc. 46); and of plaintiff Catherine Fowler to
dismiss without prejudice her claim against defendant
Bluegrass Lawncare of St. Louis, LLC, (Doc. 48). Oral
arguments were heard on January 30, 2019.
Defendant Midas Hospitality seeks an order compelling
plaintiff to sign authorizations for disclosure of three
sources of her medical records. The first is for the medical
records of Dr. Robert Rosin (described as plaintiff's
family doctor); the second is for the medical records of Dr.
Basit Malik (described as her arthritis doctor); and the
third source is the official Social Security Administration
file of plaintiff's application(s) for disability
benefits under the Social Security Act. Plaintiff objected to
the requests, because their scopes were unlimited in time and
as to medical condition. Plaintiff would limit the temporal
scope to the specified doctors' records to the period
from the alleged fall and injury on December 11, 2016, and
afterward and would limit the records to those relating to
second amended complaint plaintiff alleges that her slip and
fall on defendant's premises on December 11, 2016, caused
her to suffer substantial injury to her left hip and femur.
She also alleges that defendant's negligence damaged her
ability to work thereby causing her to lose present and
future wages as a librarian to age 72 when she would retire.
In her deposition, plaintiff indicated she has suffered
substantial injury to her hip, suffers from rheumatoid
arthritis, and has had both knees replaced; she also
testified that she has been determined to be disabled by the
Social Security Administration.
Missouri law, medical records are protected by the
physician-patient testimonial privilege codified in Rev.
Stat. Mo. § 491.060(5). State ex rel. Stecher v.
Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995). However, by
bringing this lawsuit, plaintiff put her physical condition
into issue and thereby waived the physician-patient to the
extent the subject medical records bear on the issue.
Id. While the pleadings in a case may limit the
scope of permissible disclosure of otherwise privileged
medial records, id., the record of this action
indicates that plaintiff alleges she has suffered substantial
injuries, ones that greatly limit her ability to work.
Further, she has applied for and received a determination of
disabled under the Social Security Act. The receipt of
disability benefits under the Social Security Act requires
her allegation of and the agency's determination of her
total disability. Defendant is entitled to know what
condition(s) may contribute to plaintiff's claim of
reduced earning capacity.
a defendant's request for medical records, to avoid being
too broad, must be limited to a relevant period and directed
to specific, relevant sources. State ex rel. Jones v.
Syler, 936 S.W.2d 805, 808 (Mo. banc 1997);
cf., State ex rel. Fennewald v. Joyce, 533
S.W.3d 220, 222-23 (Mo. banc 2017). The Court grants
defendant's motion to compel, but limited by the
principles acknowledged above.
to dismiss and for summary judgment
before the Court are the motions of defendant Bluegrass
Lawncare of St. Louis, LLC, for summary judgment (Doc. 45)
and of plaintiff Fowler to dismiss her claim against
Bluegrass Lawncare without prejudice (Doc. 48). This
defendant has not responded to plaintiff's motion,
Whereupon, IT IS HEREBY ORDERED that
plaintiff's motion to dismiss defendant Bluegrass
Lawncare of St. Louis, LLC, without prejudice (Doc. 48)
IS FURTHER ORDERED that the pending motion of
defendant Bluegrass Lawncare of St. Louis, LLC, for summary
judgment (Doc. 45) is denied without prejudice as
IS FURTHER ORDERED that defendant Midas
Hospitality's motion to compel production of materials
from plaintiff (Doc. 46) is sustained, in
that, following the filing of an agreed protective order,
plaintiff (1) must authorize the production to defendant of
all her medical records from Dr. Robert Rosin and Dr. Basit
Malik for the period December 11, 2011, to the present; and
(2) must also authorize the production to defendant of the
entirety of her medical records and agency determinations in
her Social Security Administration disability file(s).
 To be entitled to Social Security
disability benefits, among other facts, a claimant must prove
she is unable to perform any substantial gainful activity in
the national economy due to a medically determinable physical
or mental impairment that would either result in death or
which has lasted or could be expected to last at least ...