OPINION AND ORDER

JOHN S. MARTIN, Jr., U.S. District Judge.

Plaintiff brought this action against her former employer, The New York State Office of Mental Health, alleging discrimination on the basis of sex, sexual harassment and constructive discharge. This matter is before the Court on Plaintiff's objection to a Report and Recommendation of Magistrate Judge Kevin Nathaniel Fox in which he recommends that the complaint be dismissed as a sanction for Plaintiff's repeated refusal to allow her therapists to be deposed.

There is no dispute that Plaintiff originally signed authorizations permitting the Defendant to obtain the records of her therapists. However, when Defendant sought to depose one of them, Plaintiff cancelled the deposition and refused to permit the therapist to testify. Despite twice being warned of the potential consequences of her refusal to permit examination of her therapists, plaintiff continued to refuse to allow her therapists to be deposed.

Judge Fox found that Plaintiff had wilfully failed to comply with his orders directing the depositions of the therapists to proceed and that she had been adequately warned of the consequences of her conduct. He therefore concluded that the sanction of dismissal was the appropriate remedy for Plaintiff's wilful violation of her discovery obligations.

Plaintiff does not appear to contest the fact that dismissal of the complaint is an appropriate sanction for a failure to comply with a court order to provide discovery. She argues, however, that discovery of her mental condition was not appropriate in this case because her claim did not put her mental condition at issue.

Recognizing that the assertion of a claim for emotional distress damages can constitute a waiver of the therapist-patient privilege, Plaintiff argues that a claim for mere garden variety emotional distress damages does not waive the privilege.

As Judge Buchwald explained in Sidor v. Reno, 1998 WL 164823 (S.D.N.Y.), subsequent to the Supreme Court decision in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), which recognized the validity of the Patient-therapist privilege, a division developed in the courts concerning what actions of a plaintiff would constitute a waiver of the privilege. Some courts limited the waiver to cases in which the plaintiff called the therapist or testified about communications with the therapist. See, e.g., Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 230 CD. Mass. 1997). The Court agrees with Judge Buchwald that waiver of the privilege should not be so limited and that the reasoning of the Court in Lanning v. Southeastern Pennsylvania Transportation Authority, 1997 WL 597905 (E.D.Pa. Sept. 17, 1997) is persuasive:

Although plaintiffs do not intend to introduce expert testimony regarding damages due to emotional distress, defendant correctly points out that plaintiffs can establish their emotional distress claim through their own testimony. Defense counsel has a right to inquire into plaintiffs' pasts for the purpose of showing that their emotional distress was caused at least in part by events and circumstances that were not job related.

While plaintiff argues here that she has not in her pleadings put her emotional state at issue in this case but has made only a garden variety claim of emotional distress, there are two problems with that argument: first, it was never argued to Judge Fox, and second, it is inconsistent with the complaint and with plaintiff's action in signing the waiver that gave the defendant access to the records of her therapists.

In her letter brief to Judge Fox, plaintiff did not argue that her mental condition was not relevant; she argued only that the scope of the inquiry should be limited to exclude examination about events of her childhood. More important, however, the complaint alleges more than garden variety distress. In paragraph 26, plaintiff alleges that on one occasion when returning from a client meeting her boss "did grab plaintiff and forcibly attempt to tongue kiss plaintiff." The complaint continues:

27. As a result, plaintiff did cry uncontrollably and lost control of her urinary body function.

28. The following day plaintiff was unable to report to work.

While the conduct of plaintiff's supervisor was clearly offensive, plaintiff's reaction to it evidenced much more than mere "garden variety" emotional distress. If one accepts as true the allegations of paragraphs 27 and 28, plaintiff clearly suffered the type of emotional distress that was far beyond that which one would expect to flow from the offensive conduct at issue.

Even if plaintiff were to stipulate to withdraw the allegations of paragraphs 27 and 28 and agree that at trial she would limit her damage claim to exclude a claim for emotional distress, this incident demonstrates why it would be impossible to remove the issue of plaintiff's mental state from the jury's consideration. If plaintiff's reaction to the incident was as dramatic as she alleges, it is likely that she will have an emotional reaction when she testifies about it at trial. Thus, the jury will be left with the impression that the defendant's conduct caused plaintiff serious emotional distress and will no doubt take that into consideration in awarding damages.

In these circumstances, plaintiff refusal to permit the defendant to obtain testimony from her therapist that could shed light on the basis for her reaction and the extent of the injury that the offensive conduct caused to her unfairly prejudices the defendant.

In sum, plaintiff wilfully refused to provide discovery of relevant information after having been advised repeatedly that her refusal could result in the dismissal of her claim. On this record, Judge Fox properly concluded that the dismissal of the complaint was an appropriate sanction. Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d. Cir. 1994); Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 766 (2d Cir. 1990); Baba v. Japan Travel Bureau Int'l, Inc., 165 F.R.D. 398, 402 (S.D.N Y 1996).

For the foregoing reasons the court adopts the Report and Recommendation of Magistrate Judge Fox and the complaint is dismissed.

SO ORDERED.