HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 028 - RESPONSE TO BRIEF REGARDING INVOCATION OF PSYCHOTHERAPIST-PATENT PRIVELEGEIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:17-cv-01177-LTB-NYW
DAKOTA TYLER MCGRATH,
Plaintiff,
v.
FORT COLLINS POLICE SERVICES OFFICER NICK RODGERS, in his individual
capacity,
Defendant.
RESPONSE TO PLAINTIFF’S BRIEF REGARDING INVOCATION OF
PSYCHOTHERAPIST-PATIENT PRIVILEGE FROM DEFENDANT
Defendant Fort Collins Police Services Officer Nick Rogers,
1
through his counsel,
Thomas J. Lyons and Matthew J. Hegarty of Hall & Evans, L.L.C., respectfully submits
this Response to Plaintiff’s “Brief Regarding Invocation of Psychotherapist-Patient
Privilege” (“Brief”), stating in support as follows:
I. INTRODUCTION
Plaintiff’s Brief seeks relief from the otherwise complete disclosure of his mental
health records by (1) invoking the federal psychotherapist-patient privilege in Jaffee v.
Redmond, 51 8 U.S. 1 (1996), and by (2) simultaneously appearing to abandon a claim
for emotional distress, his ability to seek compensation for same, and his ability to present
any evidence on same. For the reasons set forth below, however, Plaintiff’s attempted
abandonment of his claim for emotional distress, ability to seek compensation for same,
1
Incorrectly identified in the Complaint as “Nick Rodgers.”
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and ability to present any evidence on same is insufficient to prevent Defendant’s
disclosure of, and conducting of discovery upon, his mental health records. Only if Plaintiff
broadly waives claims for mental pain and suffering and claims for loss of enjoyment of
life in addition to, in conjunction with, and to the same degree as the waiver set forth in
ECF No. 25 at p. 2 ¶ 4, will Defendant consider Plaintiff’s mental health records able to
be shielded from disclosure or discovery pursuant to the privilege explicated in Jaffee.
II. RESPONSE TO PLAINTIFF’S STATEMENT OF FACTUAL BACKGROUND
1. Defendant agrees this case involves a baton strike by Defendant that had the
effect of causing a fracture to Plaintiff’s lower right tibia, but states this case is also about
Plaintiff’s refusal to comply with the reasonable requests and directives of Defendant.
2. Defendant agrees ECF No. 1 ¶ 19 alleged Plaintiff suffered emotional distress
and states such allegation also was made in ¶ 25 and the “WHEREFORE” clause of ECF
No. 1. However, Plaintiff’s responses to Defendant’s First Set of Interrogatories, Requests
for Production of Documents, and Requests for Admission greatly muddied the waters on
this issue as follows:
a. in a spreadsheet containing Plaintiff’s answer to Defendant’s Interrogatory
No. 6, Plaintiff alleged a plethora of alleged mental and emotional injuries he
attributes solely to his encounter with Defendant, including: attempted suicide;
increased depression that allegedly affects a host of areas of his life; increased
anxiety that affects “all activity”; increased insomnia; decreased ability to
concentrate; alleged nightmares of the time he allegedly was tortured while in jail,
which indisputably was occasioned by somebody other than Defendant; and
alleged severe police phobia [see Exh. A to this Response at 15-16];
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b. in a spreadsheet containing Plaintiff’s answer to Defendant’s Interrogatory
No. 11, Plaintiff alleged that following his encounter with Defendant, and on top of
his physical limitations, he gained weight from being in a wheelchair which made
him “too ashamed and embarrassed to swim,” indisputably an alleged mental
injury, and that this “weight gain has left [him] with zero self-confidence,” also
indisputably an alleged mental injury [see Exh. A at 18-19];
c. in a spreadsheet containing Plaintiff’s original answer to Defendant’s
Interrogatory No. 14, Plaintiff stated he would be seeking one million dollars each
for the alleged damages categories of “pain and suffering,” “loss of enjoyment of
life,” and “emotional stress” [see Exh. A at 21]; and
d. in Plaintiff’s supplemental answer to Defendant’s Interrogatory No. 14,
Plaintiff stated, “I am seeking noneconomic damages for, among other things, pain
and suffering, loss of enjoyment of life, emotional distress, and permanent
impairment/disfigurement. These damages are related to the pain and suffering
from the baton strike and the subsequent surgery, as well as the functional
limitations I now experience on a daily basis” [see Exh. A at 25].
3. Defendant agrees that due to the alleged interrelatedness of Plaintiff’s mental
health with his alleged emotional distress and alleged pain and suffering and alleged loss
of quality of life, he seeks to discover records related to Plaintiff’s mental health treatment.
4. Defendant, along with the Court, does not know the contents of Plaintiff’s
mental health records and thus is not in a position to agree with Plaintiff’s apparent
recognition of the personal and private entries Plaintiff states are contained therein. But
Defendant does state that while Plaintiff’s apparent abandoning of his claim for emotional
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distress, his ability to seek compensation for same, and his ability to present any evidence
on same is greatly appreciated, due to the interrelatedness of Plaintiff’s mental health
with his alleged pain and suffering and alleged loss of quality of life along with his alleged
emotional distress, Defendant contends the abandonment in ECF No. 25 at p. 2 ¶ 4 is not
sufficient to prevent disclosure of and discovery upon Plaintiff’s mental health records.
5. After Plaintiff submitted ECF No. 25 to the Court, the Court entered a Minute
Order requiring Defendant to “specifically identify any case authority that permits him to
continue to seek mental health records of Plaintiff in light of Plaintiff's waiver of any claim
for emotional distress in this action.” [ECF No. 27.] Defendant endeavors to do so below.
III. ARGUMENT
A. Governing Law on Assertion of Federal Psychotherapist-Patient Privilege
Consistent with the recognition that federal privilege law governs in cases where
a federal statute such as 42 U.S.C. § 1983 provides the rule of decision, see Fed.R.Evid.
501, the United States Supreme Court recognized a federal psychotherapist-patient
privilege exists in such cases. See generally Jaffee, 518 U.S. 1. However, this privilege
is not absolute but can be waived, see id. at 15 n.14, which waiver in the Tenth Circuit is
accomplished where the plaintiff’s mental condition is in issue due to asserting damages
for alleged emotional distress. See Fisher v. Sw. Bell Tel. Co., 361 F. App’x 974, 978
(10th Cir. 2010); Fox v. Gates Corp., 179 F.R.D. 303, 305-06 (D. Colo. 1998). In this
District, such waiver also occurs where the plaintiff asserted in discovery responses that
he suffers from a specific psychological condition and offers his therapist as an expert.
See Simpson v. Univ. of Colo., 220 F.R.D. 354, 364 (D. Colo. 2004); cf. LeFave v.
Symbios, Inc., 2000 U.S. Dist. LEXIS 22278, at *10 (D. Colo. Apr. 12, 2000) (“[T]he law
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in the Tenth Circuit does not distinguish between a plaintiff who intends to rely on the
testimony of a treating psychotherapist in support of her case and one who does not.”).
Further, a plaintiff’s alleged pain and suffering and alleged loss of quality of life are
so inseparable from alleged emotional distress, both generally and specifically in regard
to the federal psychotherapist-patient privilege, that the waiver of the privilege in Jaffee
is accomplished not only where garden-variety emotional distress damages are asserted,
but also where “‘suffering of reputation,’ humiliation, mental anguish, and loss of
enjoyment of life” are asserted along with emotional distress. Carbajal v. Warner, 2013
U.S. Dist. LEXIS 36864, at *11, 14-15 (D. Colo. Mar. 18, 2013) (citing Jaffee); see Fox,
179 F.R.D. at 304 (privilege waived with damages for “emotional distress, pain and
suffering, humiliation, embarrassment and anguish”); see also EEOC v. Peters’ Bakery,
301 F.R.D. 455, 457-59 & nn.4-24 (N.D. Cal. 2014) (privilege waived with damages for
“emotional pain and suffering, inconvenience, loss of enjoyment of life and humiliation”);
Bell v. U.S. Dep’t of Interior, 2013 U.S. Dist. LEXIS 117303, at *7, 23-25 (E.D. Ca. Aug.
19, 2013) (privilege waived with damages for, inter alia, “[l]oss of enjoyment of life,”
“anxiety,” “loss concentration,” “severe depression,” “nightmares,” “[loss of] self-esteem,”
“weight gain,” and “embarrassment”); Gaines-Hanna v. Farmington Pub. Schs., 2006
U.S. Dist. LEXIS 21506, at *41-47 (E.D. Mich. Apr. 7, 2006) (discussing and applying
LeFave and Fox); cf. Dixon v. Lawton, 898 F.2d 1443, 1450 (10th Cir. 1990) (pre-Jaffee)
(damages for “mental pain and suffering” put mental condition at issue).
Moreover, the District Court must “decide any preliminary question about whether
... a privilege exists.” Fed.R.Evid. 104(a). In the context of mental health records, this
directive cannot be carried out without in camera review of each purported mental health
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record so the Court can determine for itself whether the privilege applies. E.g., Leadholm
v. City of Commerce, Colo., 2017 U.S. Dist. LEXIS 198802, at *8-12 (D. Colo. Dec. 4,
2017) (in camera review of mental health records for claim of alleged excessive force).
B. As Currently Constituted, Plaintiff’s Stated Waiver of Claimed Damages for
“Emotional Distress” Alone Is Insufficient to Prevent Waiver of the Privilege
Under the governing law, certainly Plaintiff’s abandonment of any and all claims of
emotional distress, claims for compensation related to emotional distress, and any ability
to offer at trial any medical records, testimony, or other evidence which touches on the
issue of emotional distress in any way [see ECF No. 25 at 2 ¶ 4] is an incremental step
towards the prevention of the disclosure of or discovery on his mental health records.
However, because Plaintiff simultaneously claims entitlement to assert damages
for mental “pain and suffering,” “[]shame[],” “embarrass[ment],” “zero self-confidence,”
and “loss of enjoyment of life” [see Exh. A at 15-16, 18-19, 21, 25], and because Plaintiff
has not also waived claims for those matters, claims for compensation related to those
matters, and any ability to offer at trial any medical records, testimony, or other evidence
which touches on the issue of those matters in any way, Plaintiff’s mental condition still is
in issue and Defendant cannot at this juncture consider Plaintiff’s mental health records
to be beyond the reach of discoverable information under Fed.R.Civ.P. 26(b) such that
entry of a protective order against their disclosure is warranted under Fed.R.Civ.P. 26(c).
Nor has Plaintiff, as the party seeking prevention of the discovery of the records at issue,
provided the Court with any copies of the records at issue for the Court’s in camera review
so the Court can be satisfied each such record is within the scope of the psychotherapist-
patient privilege. See Leadholm, 2017 U.S. Dist. LEXIS 198802, at *8-12.
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On the other hand, if perchance Plaintiff were to file with the Court a pleading
similar in form to ECF No. 17 in this matter, in which Plaintiff waived and abandoned any
claim to past lost earnings and future loss of earning capacity, that sets forth the following:
• Plaintiff hereby notifies the Court that he is withdrawing any and all claims of
emotional distress, claims for compensation related to emotional distress, and any
ability to offer at trial any medical records, testimony, or other evidence which
touches on the issue of emotional distress in any way; and
• Plaintiff hereby notifies the Court that he is withdrawing any and all claims of
mental pain and suffering, claims for compensation related to mental pain and
suffering, and any ability to offer at trial any medical records, testimony, or other
evidence which touches on the issue of mental pain and suffering in any way; and
• Plaintiff hereby notifies the Court that he is withdrawing any and all claims of
loss of enjoyment of life, claims for compensation related to loss of enjoyment of
life, and any ability to offer at trial any medical records, testimony, or other evidence
which touches on the issue of loss of enjoyment of life in any way,
then Defendant would be able to accept such a pleading as being an avoiding of the
waiver of his psychotherapist-patient privilege. [A proposed form is attached as Exh. B.]
Plaintiff’s reliance on Doyle v. Gonzales, 2011 U.S. Dist. LEXIS 47623 (E.D.
Wash. Apr. 27, 2011), is misplaced because Doyle contains little to no analysis of the
breadth of potential components of claims for mental damages like Fox, LeFave, and
Carbajal, which are cases in this District, and because footnote 2 observed emotional
distress “is not ‘garden variety’ if it results in a specific psychiatric disorder or disables
one from working,” which by contrast Plaintiff claims as true here. [See Exh. A at 15-16.]
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Plaintiff’s reliance on Santelli v. Electro-Motive, 188 F.R.D. 306 (N.D. Ill. 1999),
is misplaced because, unlike the plaintiff in Santelli, id. at 309, Plaintiff did not acquiesce
in being unable to testify about, present evidence on, or seek remuneration for symptoms
of mental conditions suffered, on diagnosis of mental conditions obtained, on alleged
mental pain and suffering, or on alleged loss of enjoyment of life. Only if Plaintiff totally
waives any and all claims, claims for compensation, and ability to offer at trial any medical
records, testimony, or other evidence which touches on issues as set forth above, would
Defendant consider Santelli to inform the Court’s decision on Plaintiff’s Motion.
IV. CONCLUSION
In conclusion, for the foregoing reasons, Defendant Fort Collins Police Services
Officer Nick Rogers respectfully requests that this Court reject Plaintiff’s Brief and hold
Plaintiff’s mental health records are discoverable and not shielded from disclosure, unless
Plaintiff files a formal pleading similar in form to ECF No. 17 in the above-captioned case
that notices the complete withdrawal and waiver of the following: any and all claims of
emotional distress, claims for compensation related to emotional distress, and any ability
to offer at trial any medical records, testimony, or other evidence which touches on the
issue of emotional distress in any way; any and all claims of mental pain and suffering,
claims for compensation related to mental pain and suffering, and any ability to offer at
trial any medical records, testimony, or other evidence which touches on the issue of
mental pain and suffering in any way; and any and all claims of loss of enjoyment of life,
claims for compensation related to loss of enjoyment of life, and any ability to offer at trial
any medical records, testimony, or other evidence which touches on the issue of loss of
enjoyment of life in any way.
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Respectfully submitted this 23rd day of February, 2018.
s/ Matthew J. Hegarty
Matthew J. Hegarty, Esq.
Thomas J. Lyons, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Ste. 300
Denver, CO 80202
T: 303-628-3300
F: 303-628-3368
E: lyonst@hallevans.com
hegartym@hallevans.com
ATTORNEYS FOR DEFENDANT
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that, on this 23rd day of February, 2018, I electronically filed the
foregoing RESPONSE TO PLAINTIFF’S MOTION PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 36(b) TO PERMIT ADMISSIONS TO BE WITHDRAWN OR
AMENDED FROM DEFENDANT with the Clerk of Court using the CM/ECF system,
which will send notification of such filing to the following email address:
Anthony Viorst, Esq.
VIORST LAW OFFICES, P.C.
tony@hssspc.com
Attorneys for Plaintiff
s/ Marlene Wilson, Legal Assistant to
Matthew J. Hegarty, Esq.
Thomas J. Lyons, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Ste. 300
Denver, CO 80202
T: 303-628-3300
F: 303-628-3368
E: lyonst@hallevans.com
hegartym@hallevans.com
ATTORNEYS FOR DEFENDANT
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