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DENNIE v. UNIVERSITY OF PITTSBURGH SCH. OF MED.

July 1, 1986

KELVIN DENNIE, individually and on behalf of his minor son, NKOSI, Plaintiffs,
v.
UNIVERSITY OF PITTSBURGH SCHOOL OF MEDICINE, and PRESBYTERIAN UNIVERSITY HOSPITAL, and NEIL WALD, M.D. and JOHN DOE, Defendants



The opinion of the court was delivered by: ZIEGLER

 ZIEGLER, District Judge

 Kelvin Dennie, on behalf of himself and his son, signed a release in a Virgin Islands lawsuit brought against Hess Oil Corporation and others for occupational injuries due to exposure to radiation. Although evidence of record showed minimal, if any, physical injury, Mr. Dennie obtained a settlement of $250,000. One year later, plaintiff and his son filed a second suit in the District Court for the Virgin Islands. That suit charged the University of Pittsburgh School of Medicine, Presbyterian University and Dr. Neil Wald with breach of contract, fraud and violation of privacy rights in conjunction with medical examinations of the Dennies taken as discovery in the initial lawsuit. The district court dismissed for lack of personal jurisdiction. Kelvin Dennie and his son filed the instant complaint in this district. Defendants have moved for summary judgment under Fed.R.Civ.P. 56.

 We shall grant summary judgment as to each count. First, we hold that plaintiffs waived all privileges or contractual rights against disclosure of medical records by filing the initial lawsuit. Under the rules of discovery of the Federal Rules of Civil Procedure, such medical information is discoverable when a party places his physical condition at issue. Second, we hold that plaintiffs released all claims against the medical defendants by consenting to a broadly worded settlement agreement and release.

 I. History of Case

 Kelvin Dennie and his minor son, Nkosi, are residents of St. Croix, Virgin Islands. Now in his early 40's, Kelvin Dennie worked much of his adult life as a radiographer at the Hess Oil refinery site in St. Croix. He operated a gamma ray emitting projector, used to detect structural damage in metal products. Since 1976, Dennie experienced fatigue and weakness. Upon evaluation by a hematologist, plaintiff was discovered to have a blood disorder known as leukopenia. Further tests indicated that Dennie possibly suffered from radiation-induced granulocytopenia, a reduction in the number of granulocytes in the peripheral blood.

 Kelvin Dennie filed suit on behalf of himself and his minor son against his employer, Chicago Bridge & Iron Co., Ltd., and Hess Oil in 1977. Pursuant to Fed.R.Civ.P. 35, defendants arranged several medical examinations for the Dennies in Philadelphia and Pittsburgh. The employer retained Dr. Neil Wald, director of the department of radiation medicine of Presbyterian University in Pittsburgh, as a medical consultant. The Dennies also were examined by Dr. Dane Boggs, professor of hematology at the University of Pittsburgh School of Medicine.

 To diagnose Kelvin Dennie's blood disorder, Dr. Boggs conducted tests arguably more intensive than contemplated under Rule 35. Dr. Boggs performed repeated bone marrow aspirate and biopsy tests as well as chromosomal analysis. Before these tests were conducted on May 27, 1980, Kelvin Dennie individually and on behalf of his son signed a consent form, which stated: "Drs. Robert A. Joyce and Associates are conducting studies to better understand factors which regulate blood cell production and distribution. These studies are not necessarily part of a casual diagnostic evaluation and are being described separately. Your consent is being sought for each separate study." The consent form also states that any information "obtained from this research, including answers to questionnaires, history, laboratory data, findings on physical examination, biopsy or surgery will be kept strictly confidential and never identified in any report or publication" unless the patient signs a release.

 The tests indicated that Kelvin Dennie was experiencing decreased production of granulocytes in his blood. The same tests performed on his son, Nkosi, showed no similar condition, indicating that the condition may not be congenital. Other appropriate family members were not tested; hence, Dr. Boggs did not rule out the possibility of familial neutropenia.

 Results of the tests were obtained by Dr. Wald for his evaluation of Dennie on behalf of Dennie's employer. Dr. Wald concluded that very little medical evidence supported a relationship between Dennie's occupational radiation exposure and any deviations from normal health. In a letter to an attorney for plaintiff's employer, Dr. Wald cited the Presbyterian Hospital tests and noted no biological evidence that radiation-induced changes had been produced in chromosomes of either the bone marrow cells or lymphocytes.

 Based on the Wald report, defendants in the Virgin Islands case commenced settlement negotiations. On October 23, 1980, for a consideration of $250,000, Kelvin Dennie individually and on behalf of his son executed a release to settle all claims arising from the litigation. The release stated that the initial defendants "and all other persons, associations and corporations, whether herein named or referred to or not" shall be released from liability for "all and any future injuries, death and/or damages not now known to any of the parties hereto but which may later develop or be discovered, including the effects or consequences thereof and including all causes of action therefor."

 Three years after settlement, Kelvin Dennie and his son filed a complaint against the instant defendants for breach of contract for disclosing the results of medical tests, fraud in medical evaluations and for infringement of the right of privacy. Defendants have moved for summary judgment as to each claim.

 II. Discussion

 Summary judgment may only be granted if, upon a review of the materials properly before the court and viewing the evidence in a light most favorable to the non-moving party, the court is convinced that no genuine issue of material fact remains for trial and that the movant is entitled to judgment as a matter of law. Lang v. New York Life Insurance Co., 721 F.2d 118 (3d Cir. 1983). Summary judgment is a procedure by which the court can pierce the pleadings and assess proof to determine whether a trial is necessary. Notes of Advisory Committee to Fed.R.Civ.P. 56(e). Based upon the submitted affidavits and other evidence of record, we find no issue of material fact remaining for trial because ...


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