United States Court of Appeals,

Fourth Circuit.

Michael Lewis SCOTT, Plaintiff–Appellant,

v.

WATSONTOWN TRUCKING CO. INC.; William A. Miller, III, Defendants–Appellees.

 

No. 13–1228.

Submitted June 17, 2013.

Decided July 18, 2013.

 

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David Novak, Magistrate Judge. (3:12–cv–00176–DJN).

John R. Garza, Bradley N. Kehr, Garza, Regan & Associates, P.C., Rockville, Maryland, for Appellant. John K. Messersmith, IV, James H. Revere, III, Kalbaugh, Pfund & Messersmith, P.C., Richmond, Virginia, for Appellees.

 

Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and HAMILTON, Senior Circuit Judge.

 

Affirmed by unpublished PER CURIAM opinion.

 

Unpublished opinions are not binding precedent in this circuit.

 

PER CURIAM:

*1 Michael Lewis Scott brought negligence claims in the district court against Watsontown Trucking Company (“Watsontown Trucking”) and William A. Miller (collectively, “Defendants”). In his complaint, Scott alleged that Miller’s negligent operation of a Watsontown Trucking vehicle resulted in a collision with Scott in which Scott suffered injuries. At trial, Scott failed to testify on his own behalf, and the district court provided the jury with a “missing witness” instruction, over Scott’s objection.FN1 The jury returned a verdict of no liability, and after denying Scott’s motion for a new trial, the district court entered judgment in favor of Defendants. Scott now appeals that judgment. For the following reasons, we affirm.

 

FN1. By the parties’ consent, a magistrate judge presided over all aspects of this matter. See 28 U.S.C. § 636(c)(1). All references to “the district court” in this opinion refer to the magistrate judge.

 

I.

Although the parties dispute many of the material facts in this case, it is undisputed that on July 20, 2010, Miller, a Watsontown Trucking employee, was operating a tractor trailer owned by Watsontown Trucking.FN2 As Miller was making a left turn from Broad Street onto Parham Road in Richmond, Virginia, he collided with a motorcycle driven by Scott, who was proceeding southbound on Broad Street. Scott suffered personal injuries as a result of the accident. As the district court succinctly explained, the dispute at trial “boil[ ed] down to whether … Miller had a green light when he turned left from Broad Street onto Parham Road and if not, whether [Scott] acted with contributory negligence.” (J.A. 606.)

 

FN2. Based on the jury’s verdict, we view the facts in the light most favorable to the prevailing party, Defendants. See United States v. Cone, 714 F.3d 197, 201 n. 1 (4th Cir.2013).

 

Scott filed a complaint against Defendants in the United States District Court for the Eastern District of Virginia.FN3 In his complaint, Scott brought various negligence claims arising out of the vehicle accident and sought damages. Miller and Watsontown Trucking answered, and the case proceeded to trial by jury.

 

FN3. Because the parties to the action were diverse and the amount in controversy exceeded $75,000, the district court properly exercised diversity jurisdiction over Scott’s personal injury claim. See 28 U.S.C. § 1332.

 

Prior to trial, Scott, believing that Miller would not testify, requested that the court provide the jury with Virginia Model Jury Instruction Civil No. 2.080, which would permit the jury to infer from the unexplained failure to call an important witness that the witness’ testimony was not favorable to the party who failed to call the witness (referred to hereinafter as the “missing witness” instruction). Although the court denied the request, Miller ultimately testified at trial.

 

Also prior to trial, Scott’s counsel tendered witness lists to the court that indicated Scott would be called as a witness, and the district court itself labored under the belief that Scott would testify at trial. Only near the end of trial did counsel for Scott finally inform the court that Scott would not be taking the witness stand. Indeed, Scott never even appeared in the courtroom during the proceedings.

 

During trial, Scott (through counsel) elicited testimony from one of Scott’s physicians, Dr. Steven Macedo (“Dr.Macedo”), who averred that he advised Scott not to attend the trial because protracted sitting would cause his chronic pain (as a result of injuries incurred during the collision in question) to “spike.” Dr. Macedo did not, however, explain whether he advised Scott not to testify, or otherwise opine on the advisability of Scott testifying at trial. FN4

 

FN4. Indeed, Scott was deposed prior to trial, and there is no indication in the record that he was unable to sit for the length of his deposition. Scott did not introduce any portion of the deposition into evidence, and the contents are only in the record pursuant to a post-trial order of the district court.

 

*2 On learning that Scott would not testify, the district court asked counsel for Scott whether counsel would be able to accept a subpoena on Scott’s behalf, compelling him to testify the next day. Counsel indicated that he could not accept service of a subpoena, and that in any event, a subpoena would be untimely pursuant to the local rules of the Eastern District of Virginia.

 

When Scott failed to testify or make himself amenable to a subpoena, Defendants requested that the jury be given the same missing witness instruction which Scott had proposed earlier. The district court initially declined to give the instruction, but sua sponte reconsidered its decision that evening. Prior to the district court’s charge conference, the court provided the parties with draft jury instructions, including the missing witness instruction. Scott objected to the instruction, which was overruled on the basis that Scott offered evidence about his recollection of the accident and, by calling Dr. Macedo, Scott placed his ability to attend the trial in controversy. The court therefore gave the following instruction in charging the jury:

 

Let’s talk … about the unexplained failure to produce an important witness. If you believe that a party, without explanation, failed to call an available witness who has knowledge of necessary and material facts, you may presume that witness’ testimony would have been unfavorable to the party who failed to call the witness.FN5

 

FN5. The district court’s missing witness instruction is identical to Virginia Model Jury Instruction Civil No. 2.080.

 

(J.A. 382.)

 

The jury returned a special verdict, specifically finding that Scott failed to prove by a preponderance of the evidence that Miller was negligent. The jury never reached the question, therefore, of whether Scott was contributorily negligent, and never considered damages.

 

Scott then moved for a new trial pursuant to Federal Rule of Civil Procedure 59. The district court held a hearing on the motion before denying it by written opinion. The court concluded that Scott, who had initially requested a missing witness instruction as to Miller, could not later object when the court gave an identical instruction after Scott failed to testify. Moreover, the court expressed considerable concern that it had been misled by “gamesmanship” on the part of Scott’s counsel, and again observed that Scott had placed the matter of his absence in controversy by introducing testimony from Dr. Macedo. (J.A. 614.)

 

The court then entered judgment in favor of Defendants. Scott noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

 

II.

Scott raises myriad issues on appeal, but at bottom, he simply assigns error to the district court’s decision to give a missing witness instruction, and its subsequent decision denying Scott’s motion for a new trial. Finding no error in either respect, we affirm.

 

We review the court’s jury instructions for abuse of discretion. See A Helping Hand, LLC v. Baltimore Cnty., Md., 515 F.3d 356, 370 (4th Cir.2008). Of course, “[a]n error of law constitutes an abuse of discretion.” Id. The “judgment will be reversed for error in jury instructions,” however, “only if the error is determined to have been prejudicial, based on a review of the record as a whole.” Abraham v. Cnty. of Greenville, S.C., 237 F.3d 386, 393 (4th Cir.2001) (quotation marks omitted). Similarly, we review the denial of a motion for a new trial under Rule 59 for abuse of discretion. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir.2009).

 

III.

*3 In this diversity action, we apply the substantive law of the forum state, Virginia. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Before considering whether the legal elements for a missing witness instruction were met under Virginia law, we observe at the outset that “[b]ecause we recognize that an aura of gamesmanship frequently accompanies requests for missing witness charges, we afford district judges considerable discretion in deciding when they should and should not be given.” United States v. Gaskin, 364 F.3d 438, 463 (2d Cir.2004) (internal citation and quotation marks omitted); accord VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 575 (4th Cir.2013) (“[A]ppellants’ procedural gamesmanship renders us unable to say that the district court abused its discretion.”).

 

In this case, we find significant that the district court was confronted with considerable gamesmanship throughout the course of the litigation below. As the court observed,

 

the gamesmanship here was not limited only to [Scott] seeking the instruction, then objecting to the same instruction when Defendants sought it…. [Scott’s] counsel led the Court to believe that [Scott] was going to testify and, importantly, gained a litigation advantage from that misdirection. And after [Scott’s] counsel finally made clear that [Scott] would not testify and defense counsel requested the missing witness instruction, the Court sought to cure the situation by inquiring whether [Scott’s] counsel would accept service of a defense subpoena for [Scott’s] testimony the next day, which [Scott’s] counsel rejected. [Scott’s] counsel also indicated that a request for a subpoena at that time was untimely, which was accurate. Consequently, [Scott’s] challenge to the missing witness instruction must be viewed within the context of his counsel’s gamesmanship.

 

(J.A. 614 (internal citations omitted).)

 

In this case, the able magistrate judge who presided over the trial was able to evaluate, first hand, Scott’s counsel’s actions, and fashion an appropriate remedy. The court noted that Scott’s counsel asked for, and later objected to, the missing witness instruction, “misdirect[ed]” the court as to whether Scott himself would testify, and thwarted the court’s initial attempts to amicably resolve the missing witness dispute by subpoenaing Scott to testify. (Id.) Under these circumstances, we cannot say that the district court abused its considerable discretion in giving the missing witness instruction.

 

Out of an abundance of caution, however, we will briefly analyze whether, as a matter of Virginia law, the elements were met for the giving of a missing witness instruction. As the Supreme Court of Virginia has explained, the missing witness instruction is a “statement of the settled rule that the unexplained failure of a party to call an available material witness gives rise to an inference, sometimes called a presumption, that the testimony of such absent witness would be adverse to such party.” Neeley v. Johnson, 211 S.E.2d 100, 107 (Va.1975). The missing witness instruction has two elements: availability and materiality. See id.

 

*4 Availability may be translated as the power of the party to produce. Probable availability rather than actual availability may be sufficient depending upon the state of the evidence in each case. The lack of power or nonavailability may be due to the person’s absence from the jurisdiction, his illness, the party’s ignorance of the whereabouts of the witness, the person’s testimony being inadmissible, or other like circumstances. “Available” is equated to “control” in some cases, that is, the witness is available if he “is in such relationship with the party that it is likely that his presence could be procured.” Nonavailability may be explained and the inference, or presumption, rebutted when the litigant explains the absence.

 

Id. (internal citations omitted).

 

Scott first argues that the district court improperly placed the burden on him to show that he was unavailable and his testimony immaterial.FN6 Rather, he argues, the burden should have been placed on Defendants.

 

FN6. Scott argues, as a threshold matter, that this Court should abrogate or abandon the missing witness instruction as no longer appropriate. As this argument was not raised in the district court, it is deemed waived and we will not consider it for the first time in this appeal. See Muth v. United States, 1 F.3d 246, 250 (4th Cir.1993) (issues raised for first time on appeal are considered waived absent exceptional circumstances).

 

Our review of the record, however, belies Scott’s assertion. We are unable to identify where in the record the court improperly assigned the burden to show availability and materiality. The discussion cited in Scott’s brief contains no mention of burdens, and we are unable to discern where any alleged error occurred. More to the point, however, to the extent that the district court did misallocate the burdens, Scott cannot demonstrate prejudice.

 

The allocation of burdens is subject to harmless error review. See Belk v. Charlotte–Mecklenburg Bd. of Educ., 269 F.3d 305, 328 (4th Cir.2001) (en banc) (“[B]ecause the district court’s findings, which were based on the court’s weighing of all of the relevant evidence presented at trial, would have yielded the same conclusion under a proper assignment of the burden of proof, any error with regard to the burden of proof is harmless.”). For the reasons explained below, the district court had ample evidence that Scott was available as a witness only to his own cause, and his testimony was material.

 

It is clear that, as the plaintiff, Scott was available to testify on his own behalf. See Neeley, 211 S.E.2d at 107 (“[T]he witness is available if he ‘is in such relationship with the party that it is likely that his presence could be procured.’ ”). As plaintiff, it was “likely” that Scott could have procured his own presence. The only evidence in the record regarding Scott’s availability came from Dr. Macedo, who testified on the advisability of Scott’s continued attendance at trial. Dr. Macedo never discussed whether Scott could testify. Indeed, the record suggests that Scott was deposed for several hours leading up to trial with no apparent concerns. Importantly, Scott himself concedes that he was available to testify when he states on appeal that “[h]ad Plaintiff been aware that the missing witness instruction would be given, he would certainly have testified.” (Opening Br. of Appellant at 30.)

 

*5 Scott argues, however, that he was similarly available to Defendants. He observes that he appeared on Defendants’ witness list, and would have been available had he been properly subpoenaed. But this contention ignores the fact that Scott led the court and Defendants to believe that he would in fact testify until well after the deadline for obtaining a timely subpoena. The district court even went so far as to exclaim that “never in my life did I think that the Plaintiff was not going to be testifying in this case.” (J .A. 332.) Under these circumstances, it strains credulity to suggest that Scott was equally available to Defendants.

 

Similarly, it is clear that Scott’s testimony would have been material. Scott suggests in his brief that his testimony was not material for two reasons: that he suffered from amnesia and would be unable to recall the accident; and that his testimony would have been merely cumulative because the court heard from other eyewitnesses to the accident. We find neither reason persuasive.

 

Scott’s claim that he suffered from amnesia is belied by even a cursory review of the record. In his deposition (which was only made part of the record by order of the district court), Scott testified at length as to the events leading up to, and including the accident. And during trial, one of Scott’s treating physicians opined that Scott had at least “partial recollection” of the accident, and that “[i]f he had amnesia for any period of time, it was extremely short.” (J.A. 314.) In other words, there was ample evidence from which the district court could conclude that Scott had sufficient memory that he could testify to at least some of the events that transpired when the accident occurred.

 

We are similarly not persuaded that Scott’s testimony would have been merely cumulative, especially in the context of a trial about whether Scott was contributorily negligent. The district court observed at length the myriad subjects over which Scott, and Scott alone, could testify. These include Scott’s training and experience with a motorcycle, Scott’s admission (in his deposition) that he stalled the motorcycle a few blocks from the accident, and his familiarity with the intersection. Moreover, only Scott could provide evidence as to the ongoing significance of the injuries to him, thus laying a foundation for damages.

 

Critical, moreover, to our discussion of materiality is the district court’s analysis of the inconsistencies between Scott’s deposition testimony and other evidence adduced by Scott throughout the trial. For example, [Scott] testified that he did not stop at the intersection and intended to keep moving through the intersection when the accident occurred. Yet, two of [Scott’s] eyewitnesses … testified that Plaintiff stopped at the intersection before he entered it. Indeed, contrary to [Scott’s] testimony during the deposition, the parties stipulated that “prior to the incident, Mr. Scott was stopped at the white cross line, slash, stop bar in the middle lane of West Broad Street.” Perhaps this significant inconsistency explains [Scott’s] decision not to testify. (J.A. 624 (internal citations omitted).)

 

*6 In short, there can be little doubt that Scott was available to testify, and would have provided material testimony. Accordingly, the district court did not err in giving the missing witness instruction, and similarly did not err in denying Scott’s motion for a new trial.FN7

 

FN7. Scott raises two additional claims of error that we will briefly dispense with. He asserts first that the district court erred by reversing its decision not to give a missing witness instruction. But Scott has not identified how he was prejudiced in any way by the court’s change of heart. In the absence of any prejudice, we decline to say that the court committed reversible error.

 

Scott also claims that the court erred by excluding certain medical evidence. Again, however, Scott cannot demonstrate prejudice. The jury concluded specifically that the Defendants were not negligent. It thus never considered damages—the only issue to which the medical evidence would have been germane.

 

IV.

For the foregoing reasons, the judgment of the district court is affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

 

AFFIRMED

Supreme Court of Ohio.

LEOPOLD et al., Appellees,

v.

ACE DORAN HAULING & RIGGING COMPANY et al., Appellees; Laurence, Appellant.

 

No. 2012–0438.

Submitted Feb. 5, 2013.

Decided July 18, 2013.

LEOPOLD ET AL., APPELLEES, v. ACE DORAN HAULING & RIGGING COMPANY ET AL., APPELLEES; LAURENCE, APPELLANT.

 

APPEAL from the Court of Appeals for Cuyahoga County, No. 97277, 2012-Ohio-497.

*1 1. R.C. 2317.02(B)(1) establishes the physician-patient testimonial privilege and prohibits a physician from testifying about a communication made to the physician by a patient.

 

2. The General Assembly has carved out exceptions to the physician-patient privilege in certain instances and a physician may testify or be compelled to do so in any civil action if any type of civil action or claim under R.C. Chapter 4123 is filed by the patient.

 

3. When the physician-patient privilege described in R.C. 2317.02(B)(1) does not apply as provided in R.C. 2317.02(B)(1)(a)(iii), a physician may testify or be compelled to do so only as to a communication that related causally or historically to physical or mental injuries relevant in the other civil action.

Smith Marshall L.L.P., and Philip J. Weaver, Cleveland, for appellees Todd L. Leopold and Linda Leopold.

 

Ritter, Robinson, McCready & James, Ltd., and Shannon J. George, Toledo; and Bruce S. Goldstein Co., L.P.A., and Bruce S. Goldstein, for appellant.

 

Reminger Co., L.P.A., and Brian D. Sullivan, Kenneth P. Abbarno, and Martin T. Galvin, Cleveland, for appellees Stephen L. Stillwagon, Ace Doran Rigging & Hauling Company, and Ace Doran Brokerage Company.

 

O’DONNELL, J.

O’DONNELL, J.

 

{¶ 1} Danielle Laurence appeals from a judgment of the Eighth District Court of Appeals affirming a decision of the trial court denying her request for a protective order seeking to prohibit Stephen Stillwagon and Ace Doran Hauling & Rigging Company from using statements she made to emergency room personnel that she had produced in a prior lawsuit she filed against Stillwagon and Ace Doran arising out of the same accident. The appellate court held that Laurence waived the physician-patient privilege by filing a personal injury action seeking recovery for her injuries and therefore the trial court correctly denied her request for a protective order.

 

{¶ 2} In this circumstance, we need not reach the waiver issue to resolve this case. Pursuant to the statute establishing the physician-patient privilege, at least two separate provisions apply and specify that the statements made by Laurence are no longer privileged. For these reasons, we affirm the judgment of the appellate court.

 

Facts and Procedural History

{¶ 3} On March 6, 2008, a multivehicle accident occurred on Interstate 90 in Cleveland, Ohio. Among the vehicles involved were a tractor-trailer driven by Stephen Stillwagon transporting goods for Ace Doran and two cars, one driven by Laurence and one driven by Todd Leopold. Emergency medical personnel transported Laurence to MetroHealth Medical Center for treatment as a result of the accident. At that time she told emergency room personnel that she had hit a car in front of her and then was hit from behind by a semi and pushed into a concrete wall.

 

{¶ 4} In November 2008, Laurence sued Stillwagon and Ace Doran, seeking recovery for personal injuries she suffered in the accident. In discovery, she produced her medical records, which defense counsel used when they deposed her; after that deposition, she voluntarily dismissed her case.

 

*2 {¶ 5} In October 2009, Todd Leopold and his wife, Linda, sued Stillwagon, Ace Doran, and Ace Doran Brokerage Company, seeking recovery for injuries sustained in the same accident. They dismissed the brokerage company and amended their complaint to add Laurence, asserting that her negligence had caused the accident. Laurence then cross-claimed against Stillwagon and Ace Doran for contribution or indemnification, claiming that Stillwagon had caused the collision. Stillwagon and Ace Doran thereafter cross-claimed against her for indemnification or contribution, contending that she caused the accident.

 

{¶ 6} On April 29, 2011, Laurence moved for a protective order, seeking to preclude counsel from using the medical records she produced in her 2008 lawsuit. She claimed that the physician-patient privilege protected her medical records from disclosure and that her prior waiver of the privilege applied only to her 2008 lawsuit. The court denied her motion, and she appealed. The appellate court affirmed the denial, concluding that “Laurence’s decision to file a claim of personal injury against [Stillwagon and Ace Doran], which was based upon the same accident that underlies the basis for the claims and defenses posed by the parties herein, served to waive her physician-patient privilege with respect to that accident pursuant to R.C. 2371.02(B).” Leopold v. Ace Doran Hauling & Rigging Co., 8th Dist. Cuyahoga No. 97277, 2012-Ohio-497, 2012 WL 426283, at ¶ 15.

 

{¶ 7} We accepted Laurence’s discretionary appeal, in which she claims that a patient’s production of medical records in discovery in a civil action does not waive the physician-patient privilege for all subsequent litigation. She asserts that the trial and appellate courts have created a judicial waiver of the statutory physician-patient privilege and maintains that Ohio citizens have a constitutional and statutory right to have Ohio courts enforce the physician-patient privilege. She further relies on Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, ¶ 17, for the proposition that “when the cloak of confidentiality that applies to medical records is waived for the purposes of litigation, the waiver is limited to that case.”

 

{¶ 8} The Leopolds concur. They contend that Laurence’s emergency room records are inadmissible because her medical condition is not at issue in this case, and they maintain that she preserved the privilege by voluntarily dismissing her 2008 lawsuit, thereby preventing disclosure of her records to the public. They urge us to follow Hageman and hold that the privilege is not waived when a medical condition is not at issue in a subsequent civil action, the medical records have not been made public, and a timely objection has been raised.

 

{¶ 9} Stillwagon and Ace Doran claim that Laurence waived the physician-patient privilege because she voluntarily produced her medical records in related litigation she filed against them, and upon dismissal, she neither requested that her testimony be sealed nor insisted that the medical records be destroyed or returned to her. They acknowledge that the purpose of the physician-patient privilege is to protect the privacy of the patient, but that purpose is not served when a litigant has previously disclosed medical information protected by the privilege in separate litigation involving the same defendants. They distinguish Hageman because it concerned the liability of an attorney for the unauthorized disclosure to a third party of medical information obtained through litigation that arose from a different and unrelated set of circumstances, while this case concerns the same accident and involves the same parties originally sued by Laurence.

 

*3 {¶ 10} Accordingly, the issue presented in this appeal is whether the physician-patient privilege protects medical records that a patient has previously disclosed in discovery to some of the same parties in previous litigation arising from the same accident.

 

Law and Analysis

[1] {¶ 11} R.C. 2317.02 provides:

 

The following persons shall not testify in certain respects:

 

* * *

 

(B)(1) A physician * * * concerning a communication made to the physician * * * by a patient in that relation or the physician’s * * * advice to a patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician may be compelled to testify on the same subject.

 

(Emphasis added.)

 

{¶ 12} At issue in this case is a legislatively created exception to this privilege contained in R.C. 2317.02(B)(1)(a)(iii), which is further restricted by R.C. 2317.02(B)(3)(a).

 

{¶ 13} R.C. 2317.02(B)(1)(a)(iii) provides:

 

The testimonial privilege established under this division does not apply, and a physician * * * may testify or may be compelled to testify, in any of the following circumstances:

 

(a) In any civil action, * * * or in connection with a claim under Chapter 4123. of the Revised Code, under any of the following circumstances:

 

* * *

 

(iii) If a medical claim [or] * * * any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed by the patient * * *.

 

(Emphasis added.)

 

[2] {¶ 14} This exception is all-inclusive as to the type of civil action that may be filed by the patient and does not contain any exclusion for or limitation of indemnification or contribution claims. In this matter, Laurence filed a type of civil action in the instant litigation—one for indemnification or contribution—against Stillwagon and Ace Doran. Hence, because Laurence filed a cross-claim, the elements of the exception contained in R.C. 2317.02(B)(1)(a)(iii) are satisfied, with the result that the testimonial privilege does not apply and a physician may testify or may be compelled to testify to the communications.

 

{¶ 15} The limitation at issue is contained in R.C. 2317.02(B)(3)(a):

 

*4

 

If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(a)(iii) of this section, a physician * * * may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to the physician * * * by the patient in question in that relation, or the physician’s * * * advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the * * * other civil action.

 

(Emphasis added.)

 

{¶ 16} This subsection applies because the elements are satisfied by the facts as demonstrated in this case. The original statement made by Laurence to emergency room personnel in the case she filed and later voluntarily dismissed relates causally and historically to injuries that are relevant to issues in her cross-claim because that statement is her own version of how the accident occurred. Since the statute provides that a physician may testify or be compelled to testify to communications that relate causally or historically to physical or mental injuries relevant to issues in the other civil action, her statement is not protected by the privilege.

 

[3] {¶ 17} Thus, pursuant to R.C. 2317.02(B)(3)(a) a physician may be compelled to testify or submit to discovery only as to a communication made by the patient that related causally or historically to physical or mental injuries relevant to issues in the other civil action. Laurence’s statement related both causally and historically to how the accident occurred and consequently to the injuries and damages that could be awarded as a result of it. Thus, the privilege does not apply.

 

Conclusion

{¶ 18} R.C. 2317.02(B)(1) establishes the physician-patient testimonial privilege and prohibits a physician from testifying about a communication made to the physician by a patient. The General Assembly has carved out exceptions to this privilege in certain instances and a physician may testify or be compelled to do so in any civil action if any type of civil action or claim under R.C. Chapter 4123 is filed by the patient. When the physician-patient privilege described in R.C. 2317.02(B)(1) does not apply as provided in R.C. 2317.02(B)(1)(a)(iii), a physician may testify or be compelled to do so only as to a communication that related causally or historically to physical or mental injuries relevant in the other civil action.

 

{¶ 19} Accordingly, we affirm the judgment of the court of appeals.

 

Judgment affirmed.

 

O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur.

PFEIFER, LANZINGER, and O’NEILL, JJ., dissent.

 

O’CONNOR, C.J., AND KENNEDY AND FRENCH, JJ., CONCUR.PFEIFER, LANZINGER, AND O’NEILL, JJ., DISSENT.

LANZINGER, J., dissenting.

LANZINGER, J., dissenting.

 

{¶ 20} I respectfully dissent and would reverse the judgment of the court of appeals. I would apply Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, 893 N.E.2d 153, to reaffirm that “waiver of medical confidentiality for litigation purposes is limited to the specific case for which the records are sought * * *.” Id. at ¶ 20. The medical records in this case are protected by the physician-patient privilege, for although Laurence filed a cross-claim in this case, the cross-claim did not place Laurence’s medical condition at issue.

 

Hageman v. Southwest Gen. Health Ctr.

*5 {¶ 21} In Hageman, we affirmed the judgment of the court of appeals that reversed the trial court’s entry of summary judgment in favor of an attorney who had disclosed an opposing party’s medical records without authorization. We held that “[a]n attorney may be liable to an opposing party for the unauthorized disclosure of that party’s medical information that was obtained through litigation.” Id. at syllabus.

 

{¶ 22} The attorney, who represented the wife in a divorce and custody proceeding, obtained the husband’s medical records from his psychiatrist pursuant to a waiver. Later, the attorney gave a copy of those records to the prosecutor for use in a criminal proceeding against the husband. Writing for a plurality of the court, Chief Justice Moyer first set forth the basic policy of confidentiality established in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395, 715 N.E.2d 518 (1999). He observed, “If the right to confidentiality is to mean anything, an individual must be able to direct the disclosure of his or her own private information.” Hageman at ¶ 13. In rejecting the same expansive waiver for medical records that the appellees now urge in this case, Chief Justice Moyer stated that “there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.” Id. at ¶ 14. He explained that “[c]reating an expansive waiver would be inconsistent with the generally recognized confidentiality provisions in Ohio and federal law.” Id. at ¶ 15. Although the husband admitted that he had made his health an issue in the divorce action by filing a cross-claim seeking custody of his minor child, the waiver of the medical privilege was limited to that case and was not effective in the second.

 

{¶ 23} The majority opinion in the instant case does not take a position on the application of Hageman, although it sets forth the parties’ arguments with respect to this earlier case. I believe that the reasoning expressed in Hageman should apply here as well for the protection of the confidentiality of medical records. Laurence originally waived her privilege in a separate action that was eventually dismissed. She did not file this second case. She filed only a cross-claim for indemnification.

 

{¶ 24} The filing of a cross-claim in an indemnification action is not “any other type of civil action” that provides an exception to the physician-patient privilege within the meaning of R.C. 2317.02(B)(1)(a)(iii). When read in context, that section relates to claims in which the patient has placed her medical condition at issue and states that the testimonial privilege will not apply if:

 

*6

 

a medical claim, dental claim, chiropractic claim, or optometric claim, as defined in section 2305.113 of the Revised Code, an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed by the patient, the personal representative of the estate of the patient if deceased, or the patient’s guardian or other legal representative.

 

{¶ 25} In Hageman, although the vote on the ultimate issue was split, all justices agreed that the husband had waived his physician-patient privilege when he filed a counterclaim that placed his medical condition at issue. See id. at ¶ 14 (Moyer, C.J., joined by Pfeifer and Lanzinger, JJ.); ¶ 23 (Cupp, J., concurring in syllabus and judgment only, joined by O’Connor, J.); and ¶ 32 (O’Donnell, J., dissenting, joined by Lundberg Stratton, J.). That counterclaim is properly seen as an “other type of civil action” within the meaning of the statute. But I now respectfully disagree that the phrase “any other type of civil action” was meant to extend to every type of claim, particularly a claim such as the cross-claim in this case, which does not relate to a personal injury or other health issue but merely to indemnification or contribution.

 

{¶ 26} Laurence’s medical condition is not at issue. Her medical records are protected by R.C. 2317.02(B)(1), and the privilege was not waived in this pending lawsuit. She is entitled to a protective order, and on these grounds, I dissent.

 

PFEIFER, and O’NEILL, JJ., concur in the foregoing opinion.

PFEIFER, and O’NEILL, JJ., concur in the foregoing opinion.