Shots v. CSX Transportation, Inc. (887 F. Supp. 206, 1995)

ORDER ON DEFENDANT’S MOTION TO COMPEL

HUSSMANN, United States Magistrate Judge.

This matter is before the Court on Defendant’s Motion to Compel Plaintiff to Execute Medical Authorization filed by CSX Transportation, Inc., on January 31, 1994. The plaintiff, Jason M. Shots, filed responses on February 3 and 9, 1995. Defendant CSX filed a reply brief on February 14, 1994.

The Court, being duly advised, GRANTS the motion to compel the execution of the medical authorization.

This personal injury action is brought under this Comb’s diversity jurisdiction and, therefore, the privilege of a person is determined in accordance with state law. See Fed.R.Evid. 501. Under that rule of evidence, the existence of the physician-patient privilege is governed by state law. However, the issue before the Court in this motion to compel is not whether the privilege exists, but is rather whether the defendant can conduct discovery by way of an ex parte communication with the plaintiffs treating physician.

Plaintiff argues that defendant should not be able to conduct ex parte conferences with his treating physicians because Indiana law established in Cua v. Morrison, 626 N.E.2d 581 (Ind.App.1993), affirmed, 636 N.E.2d 1248 (Ind.1994), prohibits such communications in cases brought in Indiana state courts.

However, it is important to note the basis of the holding in Cua. Cua did not change the parameters of Indiana physician-patient privilege itself. It did not establish that the Indiana physician-patient privilege now prohibits attorney-physician ex parte communications. (