United States District Court, W.D. Kentucky, Bowling Green Division
KEVIN WHITAKER, et al. PLAINTIFFS
ABF FREIGHT SYSTEM, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on motion of Defendant ABF Freight
System, Inc. (DN 54) to reconsider the Court's prior
ruling at ¶ 53. Plaintiffs Kevin and Brittany Whitaker
have responded in opposition at ¶ 56 and ABF has replied
at ¶ 57.
January 17, 2019, ABF served nonparty witness LifeSkills,
Inc. with a subpoena duces tecum seeking copies of all
documents related to LifeSkills' medical treatment of
Kevin Whitaker. LifeSkills responded to ABF that, before it
would produce the requested records, it first required either
a court-order compelling production or execution of a
LifeSkills approved medical release form. ABF forwarded the
release form to Whitaker, but he failed to execute it. ABF
then filed a motion to compel LifeSkills to produce
Whitaker's records (DN 43).
case arises from a motor-vehicle collision. In support of its
motion, ABF argued that LifeSkills' records were relevant
and necessary because Kevin Whitaker contends that his
collision-induced injuries include a brain injury with
resulting neurological and psychiatric conditions. Whitaker
opposed the motion, interposing the psychotherapist-patient
privilege embodied in KRE 507.
Court evaluated ABF's motion and made several findings.
First, the Court found that Whitaker had standing to object
to the subpoena served on non-party Lifeskills because
Whitaker is claiming a privilege regarding the requested
documents (DN 53, p. 2-3). Next, the Court concluded that the
LifeSkills' records in question are relevant, within the
meaning of Fed.R.Civ.P. 26(b)(1), to the Whitakers'
claims and ABF's defense in this case (Id. at p.
3). Finally, the Court considered the impact of KRE 507,
which provides that a patient “has a privilege to
refuse to disclose and to prevent any other person from
disclosing confidential communications, made for the purpose
of diagnosis or treatment of the patient's mental
condition, between the patient, the patient's
psychotherapist, or persons who are participating in that
diagnosis or treatment under the direction of the
psychotherapist, including members of the patient's
family. KRE 507(b)” (Id. at p.
The Court noted that Whitaker had asserted the applicability
of the privilege to the LifeSkills records and that ABF had
failed to avail itself of the opportunity to file a reply
addressing the argument. Consequently, the Court ruled that
“[i]n the absence of any argument to the contrary, the
Court concludes the documents subject to ABF's subpoena
are not discoverable under Kentucky's
psychotherapist-patient privilege” and denied ABF's
motion to compel (Id.).
brings the motion under Fed.R.Civ.P. 54(b) and 60(b), asking
that the Court “reconsider, revise, relieve ABF from,
or otherwise set aside [DN 53] and enter an Order granting
ABF's Motion to Compel” (DN 54, p. 1). ABF notes
that, while the Court ruled that the privilege set forth in
KRE 507 applied, the Court did not consider an exception
contained in the rule which ABF argues is applicable. ABF
notes that KRE 507(c)(3) makes the privilege inapplicable
“if the patient is asserting that patient's mental
condition as an element of a claim or defense. . . .”
ABF argues that, in cases such as this where a
personal-injury claimant asserts a mental condition as part
of the damages, the privilege is waived. See Dudley v.
Stevens, 338 S.W.3d 774 (Ky. 2011); Maysey v. Henkel
Corp., No. 1:17-CV-00108-GNS, 2018 U.S. Dist. LEXIS
2211, at *6-8 (W.D. Ky. Jan. 5, 2018).
argues that the Court's prior order should be revised
because it represents a manifest injustice to ABF, in that it
would be “fundamentally unfair” to deny it access
to Whitaker's medial records, which may reveal the
existence of pre-existing mental conditions.
Whitakers devote a single paragraph to their response to
ABF's motion. They simply state that the Court has
already ruled upon the motion and should not disturb the
ruling. The Whitakers do not address the question of whether
the exception of KRE 507(c)(3) applies.
60(b) is not the proper rule for ABF's motion because it
applies only to a “final judgment, order, or
proceeding.” A ruling on a motion to compel is not a
final judgment or order. See Holders v. Saunders,
No. 13-38-ART, 2014 U.S. Dist. LEXIS 174592, at *2 (E.D. Ky.
Dec. 16, 2014).
Rule 54(b) a court may reconsider interlocutory orders.
Justification for reconsideration is found when there is an
intervening change in controlling law, new evidence or
“a need to correct a clear error or prevent manifest
injustice.” Reed v. Gulf Coast Enters., No.
3:15-CV-00295-JHM, 2016 U.S. Dist. LEXIS 95183, at *6 (W.D.
Ky. July 21, 2016). However, a motion to reconsider under
Rule 54(b) may not serve as a vehicle to raise legal