Carreno v. Gates, No. 429-10-13 Bncv (Wesley, J., July 24, 2014).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

Carreno vs. Gates et al

ENTRY REGARDING MOTION

Title: Motion to Compel (Motion 1)

Filer: Michael Gates

Attorney: Kristin C. Wright

Filed Date: June 20, 2014

Response filed on 07/09/2014 by Attorney Joshua L. Simonds for Plaintiff Christianna Carreno

Response filed on 07/09/2014 by Attorney Kristin C. Wright for Defendant Carol Gates

The motion is GRANTED

Decision Granting Defendants’ Motion to Compel

Plaintiff sues Defendants for negligence. Plaintiff alleges Michael Gates drove into 

Plaintiff’s stopped vehicle. As a result of the collision, Plaintiff suffered injuries to her back and 

neck. Plaintiff also claims she experiences loss of enjoyment of life from her reduced ability to 

hike, dance, and exercise. Defendants sought the production of all medical and mental health 

records dating back to 2003. Plaintiff produced many of these records but declined to produce 

some records about gynecological issues, gastro-intestinal difficulties, depression, and malaise. 

The issue in this motion is whether Plaintiff must disclose all medical and mental health 

records from 2003 until the present. Under V.R.E. 503(b), medical and mental health records 

are privileged; however, V.R.E. 503(d)(3) creates an exception for records that are relevant to 

claim or defense. A plaintiff waives the privilege where the plaintiff’s health and medical 

conditions are issues in the case. See Mattison v. Poulen, 134 Vt. 158, 161–62 (1976) (discussing 

waiver of medical privilege in a claim for negligence involving an automobile collision). The trial 

court has some power to limit the scope of discovery for information that has little relevance to 

this case. See id. at 163–64 see also Palmeri v. Brattleboro Mem. Hosp., Inc., No. 288-6-04 

Wmcv, 2006 WL 4959624 (Vt. Super. Ct. Nov. 6, 2006) (Wesley, J.) (discussing the protection of 

sensitive and dated mental health records). Nevertheless, the trial court should order disclosure 

of relevant information to Defendants. See Mattison, 134 Vt. at 164–65.

In this case, Defendant’s requests are relevant and Plaintiff waived her privilege due to 

the nature of her claims for relief. Plaintiff claims she experienced neck and back pain and the 

loss of enjoyment of life. Defendant is entitled to discover if Plaintiff had preexisting conditions 

that limit the scope of her damages. See V.R.E. 503(d)(3); Mattison, 134 Vt. at 161–62. Plaintiff 

also disclosed she suffered from depression and malaise. Inquiry regarding Plaintiff’s prior 

mental health issues may also lead to discoverable evidence about the scope of Plaintiff’s loss 

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Bennington Unit Docket No. 429-10-13 Bncv
of enjoyment of life. V.R.E. 503(d)(3). Defendants’ request for medical records from the last 10 

years is not overly broad and burdensome. The request is limited in time and requests 

information that could be important to Defendant’s defense. 

The Court therefore grants Defendants’ motion to compel disclosure. Plaintiff must 

produce all available medical records and mental health records dating back to 2003. Plaintiff 

must also supplement her answers to interrogatories to include this information. Plaintiff must 

file supplementary disclosures within 30 days of this order.

Finally, Plaintiff requests a protective order under V.R.C.P. 26(b)(5) that limits disclosure 

and use to counsel. Defendants do not object to this request. The information Defendants seek 

is sensitive and potentially embarrassing. Accordingly, the Court orders that only counsel and 

members of her firm view or discuss the released medical records and mental health records. 

See Mattison, 134 Vt. at 163–64; Palmeri, 2006 WL 4959624.

WHEREFORE, it is hereby ORDERED :

The Court GRANTS Defendants’ motion to compel. Defendant must supplement her 

disclosures within 30 days. The Court also issues a protective order. Only counsel for Defendant 

and members of her law firm may view or discuss these records. 

Notifications:

Joshua L. Simonds (ERN 2187), Attorney for Plaintiff Christianna Carreno

Kristin C. Wright (ERN 6506), Attorney for Defendant Michael Gates

Kristin C. Wright (ERN 6506), Attorney for Defendant Carol Gates

wesley