Donald W. Bostwick

On discovery into a plaintiff's medical history, Bostwick applies a bright-line waiver rule: a plaintiff who sues for physical or mental injury places that condition in controversy, and under Kansas law there is NO physician-patient privilege at all (not merely a partial waiver) when the patient's condition is an element of the claim. Practical lesson: if your client puts their physical/mental condition at issue, expect their full medical, dental and mental-health records to be discoverable before Bostwick -- a privacy objection will not shield them.

“The Kansas Supreme Court has gone so far as to hold that 'there is no [physician-patient] privilege . . . in an action in which the condition of the patient is an element or factor of the claim or defense of the patient.' ... Therefore, Defendants have a legitimate and reasonable interest in discovering Plaintiff's medical, dental, and mental health care history which clearly outweighs any privacy interest that Plaintiff may be able to assert.”

On amendments, Bostwick follows the Rule 15(a) 'freely given' mandate and reads pleading-specificity objections narrowly: a request for punitive damages need not state an exact dollar amount under Rule 9(g) so long as the pleading gives fair notice; the amount can be developed in discovery. Practical lesson: a motion to add punitive damages with adequate notice of the basis will usually be granted -- don't over-plead the number, and don't expect a Rule 9(g) specificity attack to defeat it.

“Contrary to Defendant's reasoning, courts in this Circuit have held that 'the law does not require that the exact dollar amount of special damages be specifically pleaded.' ... The proposed Second Amended Complaint contains sufficient information to put Defendant on notice of the nature of, and basis for, Plaintiff's claim for punitive damages.”