Opinion
Civil Action No. 99-Z-1217
October 13, 2000
ORDER re: Medical Records and Rule 35 Examination
The matters before the court are Defendant's Motion to Compel [filed March 23, 2000] and defendants' Motion for Mental Examination Pursuant to Rule 35 F.R.C.P. [filed March 29, 2000]. Plaintiff did not respond to the Motion to Compel, but did file a response to the Rule 35 Motion on April 10, 2000.
Background
This is an employment discrimination case. Plaintiff alleges constructive termination from her job with defendant "because of sexual harassment, hostile work environment and religious discrimination." Verified Complaint, at ¶ 1. She claims "sever [sic] and lasting embarrassment, humiliation and anguish, and other incidental and consequential damages and expenses . . ." (id. at § 23), and she asks for damages to compensate her for pain and suffering. Id., prayer, ¶ b.
Plaintiff, a female evangelical Christian, alleges that defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and as amended, by subjecting her to a sexually hostile working environment and one which ridiculed her and discriminated against her because of her religious beliefs. Plaintiff claims she was finally forced to leave her employment due to the hostile environment. Plaintiff requests damages, including but not limited to, back pay and attorney's fees, and damages to compensate her for "pain and suffering, emotional trauma, and . . . humiliation." Verified Complaint, prayer, ¶ b.
Plaintiff has limited her request to past emotional distress damages. Pl. Resp. to Motion for Mental Examination, ¶ 11. Defendants move to compel all of plaintiff's medical records. Plaintiff did not respond to the motion to compel within eleven days as required by the Scheduling Order, at § 12, but did argue, in response to defendant's Rule 35 motion, that her medical records were not discoverable because plaintiff had not placed her medical condition in controversy. See Pl. Resp., ¶ 17. Defendants also argue that the court should exercise its discretion to order plaintiff to submit to an independent psychiatric examination and personality testing under Fed.R.Civ.P. 35(a) because plaintiff has placed her mental condition "in controversy" by alleging that she has suffered embarrassment, humiliation and anguish, because she seeks damages to compensate her for pain, suffering, emotional trauma and humiliation, and because she has put her mental state at issue through her pleadings and her deposition testimony concerning treatment for a back injury, endometriosis and fibroid tumors. See Def's. Motion for Mental Examination ¶¶ 1, 4, 10. Plaintiff responds that she has not placed her mental condition in controversy and that defendants have not shown good cause for the examination. Rather, plaintiff argues that her claims of mental anguish, emotional distress and embarrassment and humiliation are "garden variety" claims for damages insufficient to meet Rule 35's "good cause" requirement.
Analysis Medical Records
Defendants request copies of all of plaintiff's medical records for any condition. The court was not apprised of the time frame of defendant's request. Plaintiff has produced some psychological counseling records (Defs. Motion to Compel ¶ 7), but has refused to produce medical releases for the remainder of her medical records, contending that her medical treatment is not at issue, and that defendants should not be permitted a broad fishing expedition into her personal records. Pl. Resp. to Motion for Mental Examination, at ¶ 17.
Defendants contend that they are entitled to the requested information because it is relevant to the irdefenses against plaintiff's claim for emotional distress damages. Defendants argue that plaintiff has placed her mental condition at issue by requesting damages for emotional distress, thereby waiving any otherwise applicable privileges.
The court notes as an initial matter that federal privilege law governs the issues presented as plaintiff's claims for relief arise under a federal statute, Title VII. Fed.R.Evid. 501.
Federal common law recognizes a psychotherapist-patient privilege. In Jaffee v. Redmond, 116 S.Ct. 1923, 1931 (1996) the Court held that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." The Jaffee court declined to define the contours of the privilege, however, noting that such definition was more appropriately resolved on a case-by-case basis. Id. at 1932. The Tenth Circuit has followed Jaffee with respect to the acknowledgment of a psychiatrist-patient privilege. See United States v. Glass, 133 F.3d 1356, 1359 (10th Cir. 1998).
Neither the Supreme Court nor the Tenth Circuit, however, has recognized a physician-patient privilege under federal common law. See Whalen v. Roe, 429 U.S. 589, 602, n. 28 (1977) ("physician-patient privilege is unknown to the common law."); see, also, Jaffee, 116 S. Ct. at 1928 (discussing the need for a psychotherapist-patient privilege and noting that unlike the physician-patient relationship, the psychotherapistpatient relationship is dependent upon an atmosphere of confidence and trust). Accordingly, the court's inquiry regarding the discoverability of plaintiff's general medical records is governed by relevancy standards contained in Fed.R.Civ.P. 26 and considerations of confidentiality. Fed.R.Civ.P. 26(b) provides that parties may obtain discovery of any non privileged matter which is relevant to the subject matter of the pending action. Under Fed.R.Civ.P. 26(c) the court may exercise its discretion to enter a protective order to preclude certain discovery or to conditionally allow the requested discovery.
The court finds that defendants are entitled to discovery of the identities of plaintiff's health care providers and her medical records for a period of five years prior to the events giving rise to plaintiff's complaint and continuing to the present time. See Lanning v. Southeastern Pennsylvania Transportation Authority, 1997 WL 597905 (E.D.Pa. 1997) (motion to compel production of the plaintiff's medical and psychiatric records granted). Medical records information is relevant to plaintiff's claim for emotional distress damages. The information is further relevant to the preparation of defendants' defenses against plaintiff's emotional distress damages claim, because her medical records may reveal stressors unrelated to defendants which may have affected plaintiff's emotional well being. The records will be produced under a confidentiality order.
Since plaintiff has produced some psychological counseling records, it does not appear that discovery of plaintiff's psychological records is at issue. If plaintiff has not produced all of her psychotherapy records those communications are clearly privileged under Jaffee, except to the extent that the privilege may have been waived. The question before the court is whether plaintiff's prayer for emotional distress damages in conjunction with her Title VII claims constitutes a waiver of her psychotherapist-patient privilege when she does not intend to offer expert psychotherapist testimony. In Jaffee, the Supreme Court noted that the psychotherapist-patient privilege could be waived, see 116 S.Ct. at 1931, n. 14, but expressly rejected the qualification placed on the privilege by the Seventh Circuit Court of Appeals that would have allowed a court to weigh the patient's interest in privacy against an opposing party's evidentiary need for disclosure:
The court uses the term "psychotherapist" generically to include a psychologist, psychiatrist, counselor or other mental health therapist.
As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation `must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying application by the courts, is little better than no privilege at all.'
Jaffee, 116 S. Ct. at 1932 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981) (discussing attorney-client privilege).
The Jaffee court did not specifically address the issue of whether a person can waive the psychotherapist-patient privilege by initiating a legal action in which she claims damages for emotional distress. Glass also does not resolve the issue, but the Tenth Circuit addressed the question of waiver in the pre-Jaffee decision of Dixon v. City of Lawton, 898 F.2d 1443 (10th Cir. 1990). In Dixon, the plaintiff brought a 42 U.S.C. § 1983 action against police officers arising out of the shooting death of her son. After the jury found in favor of the defendants on plaintiff's civil rights claims, plaintiff appealed, asserting, inter alia, that the trial court erred in admitting into evidence portions of plaintiff's medical records which plaintiff claimed were privileged. The court assumed without deciding that a psychotherapist-patient privilege existed under the federal common law, but adopted the approach set forth by the Supreme Court in Model Rule 504, and found that the privilege did not apply because plaintiff had made a claim for emotional distress damages suffered by her son prior to his death. Id. at 1450-51. Model Rule 504 would have created a psychotherapist-patient privilege, subject to specified exceptions, one exception being that the privilege would not have applied to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relied upon the condition as an element of his claim or defense. Model Rule 504(d)(3); Dixon, 898 F.2d at 1450. Thus, under the governing law in the United States Court of Appeals for the Tenth Circuit, plaintiff has waived her psychotherapist-patient privilege with respect to any communications between her and her psychotherapist as those communications may lead to the discovery of admissible evidence regarding plaintiff's present claim for emotional distress damages. The court notes that the law in the Tenth Circuit does not distinguish between a plaintiff who intends to rely on the testimony of a treating psycho therapist in support of her case and one who does not.
Model Rule 504 was one of nine privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by the Supreme Court. See 56 F.R.D. 183, 240-44 (1972); Trammel v. United States, 445 U.S. 40, 47 (1980). Congress rejected the proposed individual privilege rules in favor of Fed.R.Evid. 501. Trammel, 445 U.S. at 47.
The court finds that Jaffee does not mandate a different result. The Dixon court did not balance plaintiff's interest in privacy against the need for evidentiary disclosure of the medical records, as prohibited by Jaffee, but rather adopted the rule that a plaintiff who relies on her mental condition as an element of her claim may not assert the psychotherapist-patient privilege to preclude a defendant from obtaining discovery of her mental health records. Accordingly, assuming that plaintiff's communications with her psychotherapist occurred during the relevant time period, defendant is entitled to discovery of plaintiff's psychotherapy records.
Rule 35 Examination
Rule 35(a), Fed.R.Civ.P states: When the mental or physical condition (including the blood group) of a party, . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suit ably licensed or certified examiner . . . The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
Rule 35(a), Fed.R.Civ.P. In Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964), the Supreme Court stated that the "in controversy" and "good cause" requirements of Rule 35 would not be satisfied by conclusory allegations contained in pleadings, or by assertions of mere relevance to the case. Rule 35 requires an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
The court must initially determine whether defendants have made an affirmative showing that plaintiff has placed her mental condition "in controversy" by making claims for pain and suffering and emotional distress damages. After reviewing defendants' motion and plaintiff's response, the court declines to find that a plaintiff who makes claims of emotional distress damages in an employment discrimination case to have placed her mental condition "in controversy" within the meaning of Rule 35(a), Fed.R.Civ.P.
The second requirement of Rule 35(a) is good cause. The majority of courts will not find good cause to require a plaintiff to submit to a medical examination unless, in addition to a claim for emotional distress damages, one or more of the following factors is also present: (1) plaintiff has asserted a specific cause of action for intentional or negligent infliction of emotional distress; (2) plaintiff has alleged a specific mental or psychiatric injury or disorder; (3) plaintiff has claimed unusually severe emotional distress; (4) plaintiff has offered expert testimony in support of his claim for emotional distress damages; and (5) plaintiff concedes that his mental condition is "in controversy" within the meaning of Fed.R.Civ.P. 35(a). See Turner v. Imperial Stores, 161 F.R.D. 89, 93-95 (S.D.Cal. 1995) (citations omitted); Smith v. J. I. Case Corp., 163 F.R.D. 229, 230 (E.D.Penn. 1995) (citations omitted); Bridges v. Eastman Kodak Co., 850 F. Supp. 216, 221-222 (S.D.N.Y. 1994).
Here, plaintiff has asked for damages for pain and suffering, embarrassment and humiliation. Plaintiff has not asserted a separate cause of action for intentional or negligent infliction of emotional distress. Plaintiff does not allege a specific mental or psychiatric injury or disorder, nor does she claim unusually severe emotional distress. Plaintiff has not indicated that expert testimony will be offered to support her emotional distress claims and, plaintiff has not conceded that her mental condition is "in controversy" within the meaning of Fed.R.Civ.P. 35(a). Accordingly, even if defendants had been able to show that plaintiff placed her mental or psychological condition in controversy, defendants cannot meet the good cause requirement of Rule 35.
Order
For the reasons set forth herein, it is
ORDERED that defendant's Motion to Compel Production of Medical Records [filed March 23, 2000] is granted. Plaintiff shall produce copies of all medical records within her possession or control or provide the identities of health care providers and signed releases for her medical records to counsel for defendant within ten (10) days of this order. Any of plaintiff's medical or psychiatric records produced are subject to the confidentiality order previously entered in this case.
It is further ORDERED that defendants' Motion for Mental Examination Pursuant to F.R.C.P. 35 [filed March 29, 2000] is denied.