HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 025 - PLAINTIFF'S BRIEF REGARDING INVOCATION OF PSYCHOTHERAPIST - PATIENT PRIVILEGEIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-CV-01177-LTB-NYW
DAKOTA TYLER MCGRATH,
Plaintiff,
v.
FORT COLLINS POLICE SERVICES OFFICER NICK RODGERS, in his individual
capacity,
Defendant.
PLAINTIFF DAKOTA McGRATH’S BRIEF REGARDING INVOCATION OF
PSYCHOTHERAPIST-PATIENT PRIVILEGE
Plaintiff Dakota McGrath, by and through counsel, Anthony Viorst of the Viorst Law
Offices, P.C., hereby submits the following brief regarding his invocation of the psychotherapist-
patient privilege in the above-referenced case:
Factual Background
1. This case concerns a baton strike inflicted by Fort Collins Police Officer Nick
Rogers, the Defendant, which broke the leg of Dakota McGrath, the Plaintiff.
2. In his complaint, at paragraph 19, Mr. McGrath averred that this incident and
injury had caused him to suffer emotional distress. Thereafter, in his initial discovery responses,
in response to Interrogatory Number 6, Mr. McGrath indicated that he had suffered emotional
distress, and mental health treatment, related to Officer Rogers’ conduct.
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3. Based upon the allegations made in the complaint and in Mr. McGrath’s
discovery responses, Defendant now seeks to discover the medical records related to Mr.
McGrath’s mental health treatment.
4. Having now received copies of his mental records, and having realized the
personal and private entries contained in those records, and wishing to uphold the sanctity of his
psychotherapist-patient privilege, Mr. McGrath agrees to waive any scintilla of an emotional-
distress damages claim in the instant case. Specifically, Mr. McGrath hereby waives any and
all claims of emotional distress, and likewise waives any and all claims for compensation
related to emotional distress, and agrees not to present any medical records, testimony, or
other evidence which touches on the issue of emotional distress in any way.
Legal Argument
Federal Rule of Evidence 501 authorizes federal courts to define new privileges by
interpreting “common law principles ... in the light of reason and experience.” In Jaffee v.
Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the United States Supreme
Court recognized a psychotherapist-patient privilege under F.R.E. 501, based upon the following
rationale:
[T]he psychotherapist-patient privilege is “rooted in the
imperative need for confidence and trust.” (Citation omitted).
Treatment by a physician for physical ailments can often proceed
successfully on the basis of a physical examination, objective
information supplied by the patient, and the results of diagnostic
tests. Effective psychotherapy, by contrast, depends upon an
atmosphere of confidence and trust in which the patient is willing
to make a frank and complete disclosure of facts, emotions,
memories, and fears. Because of the sensitive nature of the
problems for which individuals consult psychotherapists,
disclosure of confidential communications made during counseling
sessions may cause embarrassment or disgrace. For this reason, the
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mere possibility of disclosure may impede development of the
confidential relationship necessary for successful treatment.
The Supreme Court went on to state that “The psychotherapist privilege serves the public
interest by facilitating the provision of appropriate treatment for individuals suffering the effects
of a mental or emotional problem. The mental health of our citizenry, no less than its physical
health, is a public good of transcendent importance.” Joffe, supra, 518 U.S. at 11. With regard
to the evidentiary value of denying the privilege, the Court noted that “[i]n contrast to the
significant public and private interests supporting recognition of the privilege, the likely
evidentiary benefit that would result from the denial of the privilege is modest.” Id. The Court
held further that the contours of this newly-recognized federal privilege would be determined on
a case-by-case basis. Id. at 18.
The Tenth Circuit has adhered to Jaffee, and has also recognized a psychotherapist-
patient privilege. United States v. Glass, 133 F.3d 1356, 1360 (10 th Cir. 1998). However, the
Tenth Circuit has held that in civil cases in which emotional distress damages are sought by the
plaintiff, the psychotherapist privilege is implicitly waived. Fisher v. Southwestern Bell
Telephone Co., 361 Fed.Appx. 964 (10 th Cir. 2010) (“We agree with the district court that Ms.
Fisher's request for emotional-distress damages placed her psychological state in issue and
entitled SWBT to discover her therapy records.”). At least one Federal District Court in
Colorado has reached the same conclusion. See Fox v. Gates Corp., 179 F.R.D. 303, 306 (D.
Colo. 1998) (“[P]laintiff has waived her psychotherapist-patient privilege with respect to any
communications between her and her psychotherapist during the applicable time period as those
communications may lead to the discovery of admissible evidence regarding plaintiff's present
claim for emotional distress damages”).
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However, as set forth above, Plaintiff has agreed to waive any claim for emotional
distress damages, and to uphold the sanctity of the psychotherapist-patient relationship, rather
than disclose his personal and private psychotherapy records. No Colorado Court has addressed
whether waiver of an emotional distress claim serves to maintain the psychotherapist-patient
privilege. However, other courts that have addressed the issue have found that the
psychotherapist-patient privilege remains intact when the plaintiff voluntarily limits his or her
emotional distress claim. See Doyle v. Gonzales, 2011 WL 1584345 (E.D. Wash. 2011) (“[I]n
light of the asserted claims and Plaintiff's self-imposed limitation that he will not rely on medical
records or medical testimony [concerning the issue of emotional distress], the Court determines
the psychotherapist privilege has not been waived and Plaintiff need not produce the requested
medical records”); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (finding no
waiver of psychotherapist-patient privilege where plaintiff “limited the scope of her emotional
distress claim”; “[A]s a result of plaintiff’s self-imposed limitations . . . plaintiff's claim has been
narrowed to such an extent that she has successfully avoided waiver of her
psychotherapist-patient privilege,” because “plaintiff’s communications to her psychotherapist
are no longer relevant”).
These rulings are consistent with the language of Federal Rule of Civil Procedure 26(b),
which provides that the scope of permissible discovery is as follows:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery
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outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Here, the discovery in question is privileged, it is not relevant to any issue in the case, and the
burden to Mr. McGrath in disclosing his privileged records outweighs any benefit that the
defense will realize by forcing him to do so.
In light of the societal importance of the psychotherapist-patient privilege, as well as
Mr. McGrath’s affirmative waiver of any scintilla of an emotional-distress damages claim,
Mr. McGrath hereby asks this Court to find that his psychotherapist-patient privilege remains
intact, and that he is not obligated to disclose his psychotherapy records.
Dated this 15 th day of February, 2018.
THE VIORST LAW OFFICES, P.C.
[Original signature on file at Viorst Law Offices, P.C.]
s/ Anthony Viorst
Anthony Viorst, #18508
Viorst Law Offices, PC
950 South Cherry Street, Suite 300
Denver, CO 80246
Telephone: (303) 759-3808
Facsimile: (303) 333-7127
E-mail: tony@hssspc.com
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that on this 15 th day of February, 2018, I sent a true and correct copy of
the foregoing PLAINTIFF DAKOTA McGRATH’S BRIEF REGARDING INVOCATION
OF PSYCHOTHERAPIST-PATIENT PRIVILEGE was transmitted to the following via e-
mail:
Matthew J. Hegarty, Esq.
Thomas J. Lyons, Esq.
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
[Original signature on file at Viorst Law Offices, P.C.]
s/ Michelle Spadavecchia
Legal Assistant
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