Garner v. Ford Motor Co.

MEMORANDUM AND ORDER

von der HEYDT, Chief Judge.

This matter comes before the Court on defendant’s motion to waive physician-patient privilege.

Plaintiffs were injured on August 2, 1972, when the Ford automobile which they were driving went out of control and left the highway in the Yukon Territory, Canada. Plaintiffs commenced this action in the Superior Court for the State of Alaska, Fourth Judicial District, on July 6, 1973. The case subsequently was removed to this court pursuant to 28 U.S.C. § 1441.

Defendant filed this motion to waive the physician-patient privilege on August 30, 1973. Oral argument was heard in Fairbanks on October 29, 1973. In essence, defendant seeks to have the court make two separate orders. The first would be a finding that plaintiffs by commencing this personal injury action, have impliedly waived the physician-patient privilege. The second would be an order permitting defendants attorneys to confer privately with all physicians who have treated plaintiffs regarding the injuries allegedly sustained in the accident.

In a diversity of citizenship action removed to federal court, the existence of a physician-patient privilege is governed by state law. Lind v. Canada Dry Corp., 283 F.Supp. 861 (D.Minn. 1968). Both plaintiffs and defendant agree that under Alaska law, commencement of a personal injury action constitutes a waiver of the physician-patient privilege by a plaintiff, citing Mathis v. Hilderbrand, 416 P.2d 8 (Alaska 1966):

. We accordingly hold that the plaintiffs in this personal injury action waived the physician-patient privilege by the commencement of the action to the extent that attending physicians may be required to testify on pretrial deposition with respect to the injuries sued upon.

Further, both plaintiffs and defendant seem to agree, whatever the extent of the waiver, that the scope of the inquiry with plaintiffs’ attending physicians is limited to the injuries sued upon.

The issue, as framed by the memoranda of counsel, is the extent of the waiver of the privilege. Plaintiffs contend that defendant’s attorneys may not privately confer with plaintiffs’ attending physicians, but that the only means of discovery would be pretrial depositions. In support of their position, plaintiffs rely on a literal reading of the above-quoted holding from Mathis. Defendant, on the other hand, contends that there has been a complete waiver of the privilege, with the result that defendant’s attorneys should be able to confer privately with all of plaintiffs’ attending physicians. Defendants rely on the language of the concurring opinion in Mathis: