by Ronald L. Hack & Jane E. Schilmoeller

Synopsis: This article addresses the current status of Missouri law as to when a party's attorney can obtain production of privileged and/or private records of non-parties to the lawsuit. Under a recent Supreme Court of Missouri case, such records may be discoverable even over the objections of the non-parties.

I. Introduction

Causation of a plaintiff's physical or mental disabilities is at the crux of any personal injury case. Furthermore, evidence of a pattern of activity can be crucial in proving whether a party acted in a similar manner at the time of the incident. In cases involving children, the issue of proving whether a minor has physically or mentally changed after an event may depend upon a consideration of not only the minor's physical or mental status, but also his or her status as compared to the physical or mental status of family members or others. To develop evidence of causation, pattern, or change, an opposing party may have to discover and then use records and/or information regarding persons who are not parties to the underlying lawsuit. Many of those records will contain private or privileged information. Because of the increasing need for such evidence, this article examines the current status of Missouri law as to under what circumstances a party can or should obtain medical records or other private or privileged information concerning persons who are not parties to the underlying lawsuit.

II. Legal Standards For Production of Non-Party Records

In 1996, the Supreme Court of Missouri joined other states¹ allowing the discovery of a non-party's medical records if the movant established the records' relevancy to the issues involved in the case and provision was made for sufficient safeguards to protect the rights of non-parties as far as possible. In State ex rel. Wilfong v. Schaeperkoetter,² the Court faced the issue of whether a minor plaintiff's siblings' medical records could be ordered to be produced pursuant to a medical authorization in a medical malpractice action. The defendants claimed that the siblings' records were relevant to their causation liability defense on the grounds that the minor plaintiff and his siblings allegedly all suffered from the same genetic disorders, which were unrelated to defendants' alleged conduct, and therefore had the same disabilities claimed by the minor plaintiff in the lawsuit to be an injury as a result of the defendants' conduct.³ The Supreme Court held that the respondent judge used an improper procedure in requiring the guardian parent, as next friend of the minors, to sign a release authorizing the discovery of the siblings' medical records, noting that "[a] subpoena duces tecum is the proper process to produce records in the possession, custody, or control of non-parties."⁴

Although not integral to its holding, the Supreme Court went on to address the issue of whether the siblings' non-party, personal medical records ever could be discovered in light of the siblings' physician-patient privilege. The Court noted that under Rule 56.01(b)(1) "a party may obtain information regarding any relevant non-privileged matter, including material reasonably calculated to lead to the discovery of admissible evidence."⁵ When faced with the issue of privileged materials, the Court set forth a two-prong test for such production in discovery: (1) established relevancy to the matters at issue in the lawsuit, and (2) adequate protection of the privacy rights of non-parties. The Supreme Court stated: "In this case, the respondent judge could order discovery of the siblings' medical conditions only if they were relevant to the medical malpractice claim and adequate safeguards were provided to protect the non-parties as much as possible."⁶ Thus, the Court opened the door for the production of non-parties' records under appropriate circumstances. However, the Wilfong Court did not address the specific standards by which to evaluate the relevancy of non-party documents and information and to evaluate the adequacy of any safeguards to protect the privacy and/or privilege rights of those non-parties. Indeed, the Supreme Court addressed only privileged non-party medical records in Wilfong, and did not consider discovery of private, but not privileged, non-party records. This article focuses upon the two-prong standard because, Wilfong provides the only guidance by our Supreme Court as to the discovery of non-party records.

The discovery of non-party records does not in itself concern either the substantial similarity of other acts by the parties or their admissibility as evidence at trial, which has been the subject of a long series of reported decisions by Missouri courts.⁷ Rather, the issue of similarity is a fact-based determination of relevancy to other facts (such as the existence of a medical condition) critical to the case.

Attorneys seeking to discover and then introduce into evidence records of non-parties must show their similarity and/or non-similarity to the facts in the lawsuit. Trial courts in Missouri possess a wide discretion in determining issues of admission of evidence of similar occurrences.⁸ The courts use a balancing test to determine if evidence of other instances allegedly with the same result are relevant to a particular case. A determination is made whether the essential circumstances of the second instance are sufficiently similar to the situation at issue so as to exclude the likelihood of the same results being produced by different causes in the two instances.⁹ Thus, in an action by a worker for damages to his respiratory system caused by inhaling fumes from a chemical, testimony concerning physical complaints suffered by other workers at the site was upheld as admissible and relevant to show the extent and density of smoke and fumes inhaled by the plaintiff.¹⁰

Medical records of others are usually the most sought after non-party records in order to prove a theory of liability or defense. Since its first enactment in 1835, the Missouri legislature has provided a statutory physician-patient privilege.¹¹ At common law, communications between a physician and a patient were not privileged.¹² Because the physician-patient privilege is statutory in nature, courts have held that it can only be modified, expanded or changed by the legislature.¹³ The policy behind this statutory privilege is to protect the patient by allowing the patient to make full disclosure of his conditions for purposes of complete treatment without fearing that the disclosed information may later be used against him or her.¹⁴ The current statute addresses this privacy concern by making the physician, dentist, or licensed psychologist incompetent to testify regarding matters necessary for care and treatment.

The following persons shall be incompetent to testify:

(5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist licensed under chapter 332, RSMo concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe and provide treatment for such patient as a physician, psychologist or dentist.¹⁵

Over the years, the Supreme Court of Missouri has addressed several times the scope of discovery of medical records. Where a plaintiff files an action for damages for personal injuries, he waives the physician-patient privilege; however, that waiver only entitles the opposing party to those medical records that relate to those physical conditions at issue from the pleadings.¹⁶ In State ex rel. Jones v. Syler,¹⁷ the Court specifically rejected the proposition that all medical records of a plaintiff are discoverable. Discovery of medical records can be limited in time and to specific health care providers.¹⁸ The authorization form, from which discovery of relevant records is obtained, "should track plaintiff's allegation of injury in the petition."¹⁹ The Supreme Court's admonition on authorizations is critical in the decision as to the scope of discovery of non-party records: "As with other discovery, the narrowness or breadth of the medical authorization required is directly controlled by the narrowness or breadth of the allegations in plaintiff's petition."²⁰ Note that while the rule may be clear and leave little room for controversy, as envisioned by the Court, controversies will arise where the petition is broad in scope so as not to limit the injuries that can later be claimed and proven at trial.²¹ Thus, where the plaintiffs' petition is so broad in scope to obtain recovery for all possible injuries, the relevancy of non-party records may be more easily argued and established.

Missouri courts appear to reject the argument that the medical records of non-parties are absolutely protected from discovery by virtue of the physician-patient privilege statute, § 491.060, RSMo 1994.²² "The circumstances, facts and interests of justice determine the applicability of the physician-patient privilege to a particular situation."²³ At least one appellate court in State ex rel. McBride v. Dalton rejected the proposition that a plaintiff can obtain medical records of a defendant by arguing an accident was caused by the defendant's medical condition, where the defendant did not plead facts putting her medical condition at issue.

On these facts § 491.060 RSMo 1986 (the physician/patient privilege statute) applies as a matter of law. The purposes for the privilege support its application. There is no legal justification to deny the claim of privilege. The statute prevails over respondent's appeal to 'justice' as a reason to deny relator her statutory privilege to keep secret facts regarding her medical care."²⁴

The proposition remains open for further debate as to whether the absoluteness of the privilege statute expressed in that case has been at least implicitly overruled by the Supreme Court of Missouri in Wilfong.²⁵

Missouri state and federal courts have allowed discovery in a variety of cases where the party requesting non-party records made a sufficient showing of relevancy. The redacted medical records of a physician's other non-party patients were found to be relevant and discoverable in a medical malpractice case to determine the similarity of injuries after a specific type of operation.²⁶ A hospital accreditation committee was permitted to examine the medical records of a staff physician to determine his competency and qualifications to practice medicine at the hospital.²⁷ Likewise, where the cause of alleged brain damage to a child was at issue, and the defendants contended that the plaintiff's non-party mother may have had a blood condition which caused the minor plaintiff's brain damage, the medical records of the mother and five older siblings were found to be relevant and discoverable "in order to effectively explore [a] . . . defense to liability."²⁸ The result of a blood alcohol test of a deceased driver was held discoverable and admissible in a suit between a passenger in a bus, which collided with the decedent's car, and the bus company.²⁹

Other courts have denied access to non-party records where a showing of relevancy beyond an attorney's arguments is not made.³⁰ The denial of access to non-party records was upheld where a physician sought to examine unredacted hospital patient records under allegations that the hospital and its physicians had conspired and discriminated against the physician-plaintiff by applying a different standard of medical practice after reducing his medical privileges.³¹ At least one court of appeals decision appears to completely reject the idea that a privilege statute can fall to justice arguments. The State ex rel. McBride v. Dalton court held that the injured passenger in vehicle 1 in an accident was not entitled to discover the medical records of the driver of vehicle 2 in the accident to determine whether driver 2 had been advised by a physician not to drive a motor vehicle. The court reasoned that because the defendant driver of vehicle 2 had not pled facts which would have created an issue out of driver 2's medical condition, there was no legal justification to deny the claim of privilege.³² In State ex rel. Hayter v. Griffin,³³ the defendant truck driver was held not to have waived his physician-patient privilege to permit a trial judge to enter an order requiring execution of a record release authorization of medical records in possession of his employer, where the truck driver had answered questions in a deposition that he had diabetes and had received medical advice for that condition.

A prime example of determining the relevancy of non-party records to show a similarity or dissimilarity of circumstances is a case where the cause of a child's physical or mental condition is disputed. To determine whether the condition was likely caused by a specific act or the result of a completely separate cause, such as genetics, environment, society influences, etc., may necessarily require examination of non-parties' medical or other records.³⁴ This fact situation will present itself more frequently in light of ever-increasing scientific advances in determining causation, including gene typing and other DNA tests, and as society becomes more accepting of genetic causes for traits which traditionally have been viewed as developed or influenced by an individual's environment and experience.³⁵ These advances likely will require additional hearings or in camera inspections by the trial court prior to production of information to determine which materials are truly relevant and discoverable, as opposed to those which hypothetically could lead to admissible evidence.

Once the court finds that the requested material is relevant, it must still determine whether it can establish adequate safeguards to protect the rights of non-parties. As succinctly noted by one appellate court: "Where there is a need for or public interest in discovery of material protected by a privilege, disclosure of the privileged communications may be compelled, provided adequate steps are taken to insure that those on whose behalf the privilege is asserted will not suffer possible disclosure and humiliation or embarrassment."³⁶ Missouri courts wrestling with such privilege issues have arrived at a variety of solutions to protect the rights of various individuals. The traditional method of protecting such rights is through an in camera inspection of the privileged records by the trial judge to determine their relevancy, with the trial judge masking names and other identifying information and performing other editing to insure the privacy of non-parties before their disclosure to the attorneys in the case.³⁷ Attorneys requesting the records may not be present when the records are examined in camera by a judge.³⁸ However, access to complete records has been allowed to a hospital's qualifications committee.³⁹ Also, complete access to medical records was granted where the medical conditions of a non-party parent and siblings were critical to the issue of causation of the plaintiff's alleged injuries.⁴⁰ It is clear that the appropriate safeguards will have to be determined on an individual basis.

III. Practical Considerations for Production of Non-Party Records

A. Procedures to Obtain or Oppose Production

To obtain non-party records, it is clear that the attorney must have a subpoena duces tecum issued to a proper custodian to produce the non-parties' records. The Supreme Court in Wilfong clearly stated that a party or his or her representative cannot be compelled to sign an authorization or release for those records, even though the representative may also be the parent of the non-party.⁴¹ After issuance of a proper subpoena, it is unclear who has standing to quash its issuance, whether it be the party, a quasi-party such as a natural or appointed guardian or next friend for minor non-parties, the records custodian, or the non-parties themselves. Under § 491.060, the physician can assert the privilege on behalf of the patient regarding confidential information between the patient and the physician.⁴² Additionally, by statute, living parents of minors are the natural guardians of their children for the "care of their persons and education."⁴³ It can be assumed that a party to the lawsuit can object on relevancy grounds, even though the records do not specifically belong to that party.⁴⁴ However, a party does not have standing or the right to assert another's privacy rights, which are particular to the other parties, especially where those rights may be in conflict with the rights and interests of a child.⁴⁵ Presumably, it will be up to the trial court to protect these non-parties' rights, even though there may be no one before the court to assert such rights. It is an open question under Wilfong whether a guardian ad litem may need to be appointed to assert and protect minor non-parties' rights and privileges.⁴⁶

Attorneys opposing an attempt to obtain non-party records should emphasize that nothing in the Missouri Rules of Civil Procedure specifically provides for the production of non-party privileged or private records. The attorney should also stress the privacy of these records (even though the attorney may have questionable standing to do so unless he or she also represents the non-party), and how even the inadvertent public disclosure of such records could cause irreparable embarrassment and/or harm. Even with safeguards to prevent disclosure, the records or information could become known to a variety of people. Such personal facts, once disclosed, can never be rendered completely private again. Furthermore, attorneys opposing such production may argue that the introduction of non-party records at a trial would create the necessity for several mini-trials within the main trial to explain to the jury any contributing and confounding factors for the conditions of the non-party. Such mini-trials could arguably confuse the jury and possibly frustrate its fact finding functions.

The primary argument for allowing production of non-parties' records to be discovered over privacy right claims is that the non-party records go further in illustrating the cause of an injury than any other piece of evidence.⁴⁷ In a medical malpractice action, evidence of a continuing pattern of negligence by a hospital or doctor can be determined and shown by a review of other patients' records.⁴⁸ Likewise, in a toxic tort or medical malpractice claim involving a child, a common issue is whether the act or product caused an injury to the mental and intellectual development of a child.⁴⁹ Child psychologists and pediatric neurologists recognize that in order to determine whether a causal relationship exists, the professional must account for, or confound for, such factors as parental intelligence and social environment. Such potential confounding can only be considered in the context of a review of the school records, interviews, and testing of parents, siblings, and close family members.⁵⁰ Such information may be normally used and relied upon by members of the profession and could be used by a professional in giving his expert opinions.⁵¹ Without such material, the proponent of the non-party discovery can argue to the court that the jury and the court will be left with only a partial answer to the question of causation. These additional records may also be extremely important where they relate to a derivative claim of a family member.⁵² Weighing against these arguments is the inherent and constitutionally protected right to privacy of the non-party and that he or she has never consented to having the privileged or private information made an issue in the underlying lawsuit.⁵³

As noted above, to overcome a relevancy objection there must be competent outside evidence to establish for the trial court the relevancy of the documents sought or requested. Although not specifically stated in Wilfong, it is clear that, in practice, relevancy to obtain privileged information must be something more than the general, pre-trial discovery standard of being reasonably likely to lead to the discovery of admissible evidence. The standard and procedure for a showing of relevancy may be similar to that envisioned by Rule 56.01(b)(3), where the party seeking discovery of trial preparation materials must show both substantial need and the unavailability of a substantial equivalent. Thus, it can be envisioned that the trial court may conduct a hearing, take oral evidence, or require the submission of experts' or other witnesses' depositions or affidavits to establish the documents' relevancy and the requesting party's substantial need of those documents, as the court balances the sanctity of the physician-patient or other privilege or privacy interests against justice or public interest arguments.⁵⁴ The sufficiency of such a showing, or what is needed to controvert such a showing, is unclear and is presumably left for the trial court to determine on a case-by-case basis.

B. Records Obtainable

What records can be obtained is also unclear. Various types of medical records are privileged and/or confidential pursuant to statute.⁵⁵ Additionally, numerous other types of physical documents and information exist which may be relevant, but to which individuals might assert privacy and/or privilege claims: nursing home records, school records,⁵⁶ employment and employment security records,⁵⁷ Social Security application records, records of calls reporting child abuse,⁵⁸ and welfare records. Missouri courts to date have approved disclosure of blood alcohol test results,⁵⁹ school records,⁶⁰ medical records,⁶¹ records of non-party customers' stock transactions,⁶² employment security records,⁶³ attorney time records relating to projects for other non-party clients,⁶⁴ and nursing home records.⁶⁵ Additionally, no privilege exists to disclosure of facts of a private or privileged matter which are otherwise contained in public records.⁶⁶ Courts have denied the release of another's medical records where the relevancy threshold could not be met because of the tendency to confuse the facts and the privilege concerns could not be outweighed by other factors.⁶⁷

C. Non-Party Medical Examinations

Missouri law is unclear whether non-parties may be compelled to appear for physical or mental examinations. One appellate court⁶⁸ noted that a trial court had no power to compel non-party examination under Rule 60.01. However, the Supreme Court of Missouri⁶⁹ has held that the trial court has inherent power distinct from discovery rules and statutes to compel a non-party to appear for a medical examination. Other courts have recognized the need for compelling such examinations on the grounds that justice is a basic search for truth.⁷⁰ In today's ever advancing technological age, it is conceivable that such examinations could be increasingly ordered where the burden to non-parties may be minimal as long as appropriate safeguards are instituted by the court.

Conclusion

Missouri has now joined other states allowing the production of non-parties' privileged and/or private records under limited circumstances. While the standards may be unclear, its worth to the practicing attorneys in specific cases will be inestimable.

Endnotes

1 See Department of Social Servs. v. Stein, 621 A.2d 880, 891 (Md. 1992); Lewin v. Jackson, 492 P.2d 406, 408 (Ariz. 1972); Beckwith v. Beckwith, 355 A.2d 537, 545 (D.C. 1976). See also Rodriguez v. New York City Housing Authority, No. 69340, 6 Mealey's Lit. Reptr., 1/18/97.

2 933 S.W.2d 407 (Mo. banc. 1996).

3 Id. at 409-10.

4 Id. at 409.

5 Id. at 410.

6 Id. (emphasis added).

7 See Pierce v. Platte-Clay Elec. Coop., Inc., 769 S.W.2d 769, 774 (Mo. banc. 1989); Albers Milling Co. v. Carney, 341 S.W.2d 117 (Mo. 1960).

8 Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 881 (Mo. banc. 1993); Pierce, 769 S.W.2d at 774.

9 Poston v. Clarkson Constr. Co., 401 S.W.2d 522, 526 (Mo. App. W.D. 1966).

10 Ray v. Upjohn, Co., 851 S.W.2d 646, 652 (Mo. App. S.D. 1993). But see Budding v. Garland Floor Co., 939 S.W.2d 419, 425 (Mo. App. E.D. 1996) (where testimony of another worker regarding symptoms experienced by the plaintiff floor installer from fumes from a floor coating was not admissible where the other incident was not shown to be sufficiently similar to that experienced by the plaintiff in a product liability and negligence action).

11 RSMo (Witnesses) § 17 (1835).

12 State v. Long, 165 S.W. 748 (Mo. 1914).

13 Leritz v. Koehr, 844 S.W.2d 583, 584 (Mo. App. E.D. 1993).

14 Id.; Klinge v. Lutheran Med. Ctr., 518 S.W.2d 157, 164 (Mo. App. E.D. 1974).

15 Section 491.060, RSMo 1994.

16 State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc. 1995); State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. banc 1968).

17 936 S.W.2d 805 (Mo. banc 1997).

18 Id. at 808.

19 Id. at 807.

20 Id.

21 Id. at 807-08.

22 State ex rel. Lester E. Cox Med. Ctr. v. Keet, 678 S.W.2d 813, 815 (Mo. 1984). See also State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 409 (Mo. banc 1996).

23 Wilfong, 933 S.W.2d at 409, quoting, Lester E. Cox, 678 S.W.2d at 815.

24 State ex rel. McBride v. Dalton, 834 S.W.2d 890, 891 (Mo. App. E.D. 1992).

25 Wilfong, however, can be harmonized with the physician-patient privilege statute by noting that the policy behind the statute is to allow the patient to make full disclosure without fear that the records will be used against him or her. See note accompanying test. In the case of non-party records, of course, if the records are sought to be used against anyone it is the party, not the non-party patient. Thus, Wilfong could be viewed as consistent with the statute, when the statute is read in light of its underlying policy.

26 Lester E. Cox, 678 S.W.2d at 815.

27 Klinge v. Lutheran Med. Ctr., 518 S.W.2d 157 (Mo. App. E.D. 1974). See also State ex rel. Health Midwest Dev. Group, Inc. v. Daugherty, ___ S.W.2d ___ (Mo. banc 1998) (doctor who sued a hospital for improperly restricting his privileges could request all documents generated by every peer committee that met over 10 years, including those that did not involve him, rejecting claim that documents were protected from discovery by physician/patient privilege statute).

28 Vincent v. Connaught Laboratories, Inc., 131 F.R.D. 156, 158 (E.D. Mo. 1990).

29 Diener v. Mid-American Coaches, Inc., 378 S.W.2d 509 (Mo. 1964). However, see also State ex rel. Mehle v. Harper, 643 S.W.2d 643 (Mo. App. W.D. 1982) (blood alcohol test results not discoverable where test was ordered by an emergency room physician without a request from police or other authorities). This apparent conflict was resolved in Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 108 (Mo. banc 1996), when the Supreme Court of Missouri held evidence of alcohol consumption admissible "if otherwise relevant and material." This echoes the court's ruling in Wilfong, 933 S.W.2d at 410.

30 Wilfong, 933 S.W.2d at 410.

31 State ex rel. Benoit v. Randall, 431 S.W.2d 107 (Mo. 1968).

32 McBride, 834 S.W.2d at 891.

33 785 S.W.2d 590 (Mo. App. W.D. 1990).

34 Vincent, 131 F.R.D. At 158. See also Department of Social Servs. v. Stein, 621 A.2d 880, 891 (Md. 1992).

35 See Anastasia Toufexis, What Makes Them Do It: People Who Crave Thrills, New Evidence Indicates, May be Prompted at Least Partly by Their Genes, Time, January 15, 1996, at 60; Sharon Begley, Is Everybody Crazy?, Newsweek, January 26, 1998 at 50.

36 St. Louis Little Rock Hospital, Inc. v. Gaertner, 682 S.W.2d 146, 151 (Mo. App. E.D. 1984).

37 Id. at 152; Lester E. Cox Medical Ctr., 678 S.W.2d at 815.

38 Stecher, 912 S.W.2d at 465.

39 Klinge, 518 S.W.2d at 167, Health Midwest Development Group, ___ S.W.2d ___ (Mo. banc 1998). See infra n.27.

40 Vincent, 131 F.R.D. at 158, n.32.

41 Wilfong, 933 S.W.2d at 409.

42 St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 151 (Mo. App. E.D. 1984).

43 Section 475.025, RSMo 1994.

44 See State ex rel Hayler v. Griffin, 785 S.W.2d 590 (Mo. App. W.D. 1990) (co-defendant employer could also object to production of co-defendant employee's medical records disclosed to employer).

45 In re M--P--S--, 342 S.W.2d 277, 283 (Mo. App. E.D. 1961).

46 See State ex rel. Schwarz v. Ryan, 754 S.W.2d 949 (Mo. App. E.D. 1988) (guardian ad litem for incompetent defendant in wrongful death case was not authorized to waive privilege as to medical records of defendant where best interests of ward possibly at risk). See also In re M--P--S--, 342 S.W.2d 277 (Mo. App. E.D. 1961).

47 Wilfong, 933 S.W.2d at 408.

48 Lester E. Cox Medical Ctr., 678 S.W.2d at 813.

49 Vincent, 131 F.R.D. at 156.

50 For example, in studies relating to lead exposure it is standard practice for the expert to obtain assessments of parents and siblings to account for confounding factors. See, e.g., Stuart J. Pocock, et al. Lead Exposure and Children's Intellectual Performance, 16 Int'l Jnl. Of Epidemiology 57, 58 (1987) (noting that "it is important to characterize such influences on child IQ as best one can," and measuring the mother's IQ by neuropsychological intelligence and vocabulary tests); Claire B. Ernhardt, et al., Low Level Exposure in the Prenatal and Early Preschool Periods: Intelligence Prior to School Entry, 11 Neurotoxicology and Teratology 161, 163 (1989) (measuring confounders "likely to be related to childhood intelligence: such as sex, race, birth order, birth weight, gestational age at birth, parental education, and maternal variables [including neuropsychologic al assessments of the mothers]"); Stuart J. Pocock, et al., Environmental Lead and Children's Intelligence: A Systematic Review of the Epidemiological Evidence, 309 British Medical Journal 1189, 1193 (1993) (reviewing various lead studies that did consider factors such as parental IQ and education and noting with regard to one such article that "the parental and social factors had a more precise ability to predict child IQ").

51 See Fed. R. Evid. 705.

52 Vincent, 131 F.R.D. at 156; State ex rel. St. Louis Public Serv. Co. v. McMullan, 297 S.W. 431 (Mo. banc 1956).

53 See McBride, 834 S.W.2d at 891.

54 Wilfong, 933 S.W.2d at 410; Lester E. Cox Medical Ctr., 813 S.W.2d at 815. The type of material that a party may be required to produce to justify their request for this type of non-party information can raise the parallel issue of retaining the confidentiality of a consulting expert. If a consulting expert's affidavit is necessary to establish the need and/or relevancy of the requested discovery, counsel may have to submit redacted affidavits or affidavits under seal.

As a practical matter, this is now two "layers" of information the court may be asked to review in camera (i.e., the material supported the discovery request and also the information sought through discovery) and then determine what can be shown to the opposing side. Obviously, the more onerous the burden that is placed upon the court by the party requesting discovery, the less inclined the court will be to review the request favorably.

55 See § 491.060, RSMo 1994 (physician patient privilege statute); § 210.040, RSMo 1994 (results and blood tests for syphilis or hepatitis B); § 630.140, RSMo 1994 (information relating to mental health patients); and § 191.656, RSMo Supp. 1997 (HIV status records strictly confidential).

56 Section 610.010(6), RSMo 1994.

57 Section 288.250, RSMo Supp. 1997.

58 Section 210.150, RSMo Supp. 1997. See also State v. Moesch, 738 S.W.2d 585, 588 (Mo. App. E.D. 1987).

59 Diener v. Mid-American Coaches, Inc., 378 S.W.2d 509 (Mo. 1964).

60 Jeffrey Hebb, as guardian and next friend of Etheria Hebb, a minor vs. Innercity Equities, Ltd., Cause No. 932-09252, Circuit Court, City of St. Louis, Order and Judgment, September 29, 1997.

61 Vincent v. Connaught Laboratories, 131 F.R.D. 156, 158 (E.D. Mo. 1990); State ex rel. Lester E. Cox Med. Ctr. v. Keet, 678 S.W.2d 813, 815 (Mo. banc 1984); Cramer v. Hurt, 55 S.W. 258 (Mo. 1900).

62 Welsh v. Dean Witter Reynolds Org., 657 S.W.2d 27 (Mo. App. W.D. 1983).

63 State ex rel. Von Hoffman Press v. Saitz, 604 S.W.2d 770, 772 (Mo. App. E.D. 1980).

64 State ex rel. Friedman v. Provaznik, 668 S.W.2d 76 (Mo. banc 1984).

65 State ex rel. Dixon Oaks Health Ctr., Inc. v. Long, 929 S.W.2d 226, 231 (Mo. App. S.D. 1996).

66 Key v. Cosmopolitan Life, Health & Accident Ins. Co., 102 S.W.2d 797 (Mo. App. E.D. 1937) (autopsy report not privileged); Randolph v. Supreme Liberty Life Ins. Co., 221 S.W.2d 155 (Mo. banc 1949) (death certificate admissible in suit on life insurance policy); Woods v. National Aid Life Ass'n, 87 S.W.2d 698, 701 (Mo. App. S.D. 1935) (certified instrument filed in county court containing finding that a decedent was disabled was not privileged).

67 See Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. 1996).

68 Givan v. Adolf, 723 S.W.2d 942 (Mo. App. E.D. 1987).

69 State ex rel. St. Louis Public Service Co. v. McMullan, 297 S.W.2d 431 (Mo. banc 1956).

70 Campbell v. Bonner, CA No. 92-7771 (D.C. 1994) (trial court granted defendant's motion in lead paint case for leave to conduct clinical interviews and intelligence testing of minor plaintiff's mother and siblings).

Ronald L. Hack practices in the litigation area of the St. Louis law firm of Thompson Coburn. He received his B.A., summa cum laude, from Westminster College and his J.D. from the University of Missouri-Columbia.

Jane E. Schilmoeller is an associate with Thompson Coburn in St. Louis, where she practices primarily in the area of environmental insurance litigation. She holds a B.S. degree from Washington University and her J.D., cum laude, from the University of Missouri-Columbia.

1998, Ronald L. Hack and Jane E. Schilmoeller