Sidewalk trip-and-fall plaintiff doesn't want to give defendants access to medical, psychiatric records

By Nicholas Malfitano | May 5, 2015

PHILADELPHIA – A man suing Subway, Comcast, Verizon and the City of Philadelphia over a sidewalk fall in November 2012 has filed a motion for reconsideration of a judge’s ruling that forces him to comply with a defense request for his medical and psychiatric care records.

Paul Bailey, of Philadelphia, alleges he fell on a city sidewalk on Nov. 22, 2012, due to a “broken, defective or unlevel sidewalk,” in addition to “an open cable utility hole cover” outside the Subway restaurant in Philadelphia located on North 15th Street.

In his July 2014 lawsuit filed in the Philadelphia County Court of Common Pleas, the plaintiff alleged negligence on the part of Subway; the restaurant location’s owners Michael and Olga Polites of Cherry Hill, N.J.; Comcast; Verizon; and the City of Philadelphia for allegedly knowing of the sidewalk’s condition and not repairing it.

Bailey further claimed to have suffered serious injuries in the fall to his neck, back and knee, along with nervous system shock, with “some or all” of those injuries being of a permanent nature and requiring the continuing expense of medical care. The plaintiff is seeking judgment jointly and severally, in excess of arbitration limits.

In January, Comcast filed a motion to enforce 72 subpoenas in order to gather information during the discovery period. The subjects of the subpoenas included medical and psychiatric care information for the plaintiff.

Bailey filed a motion in opposition of Comcast’s requests, claiming the number of subpoenas it asked for were “too numerous and burdensome,” in addition to the defense’s specific request for psychiatric records being in violation of doctor-patient confidentiality.

Judge Lisa Rau ruled on March 31 the defense had a valid right to conduct the aforementioned subpoenas and records requests for the purposes of discovery and ordered the plaintiff to comply with those requests.

Bailey and his counsel filed a motion for reconsideration of Rau’s ruling, with that hearing to take place on May 5 in the court’s location at Philadelphia City Hall.

The plaintiff is represented by John F. Hanahan, Esq. and Jeffrey M. Rosenbaum, Esq. of Philadelphia.

The defendants are represented by Steven P. Cholden, Esq. of Reilly Janiczek & McDevitt of Philadelphia; Ernest J. Bernabei, III, Esq. of Philadelphia; Howard Wishnoff, Esq. of Donna Adelsberger & Associates, P.C. of Glenside; Thane C.J. Trotman, Esq. of the Law Office of J. Mark Pecci of Philadelphia; and Sheldon Kivell, Esq., also of Philadelphia.

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