HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 031 - PLAINTIFF'S REPLY IN SUPPORT OF BRIEF REGARDING INVOCATION OF PSYCHOTHERAPIST-PATIENT PRIVELEGEIN 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 REPLY IN SUPPORT OF 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 reply in support of his brief regarding his invocation
of the psychotherapist-patient privilege in the above-referenced case:
1. Plaintiff has previously agreed to waive any damages associated with emotional
distress, in order to preserve his psychotherapist-patient privilege. To further clarify his
position, Plaintiff agrees to limit his noneconomic damages to the pain and suffering stemming
directly from the broken leg, and necessary medical treatment, caused by the Defendant’s
misconduct.
2. In his reply brief, Defendant maintains that “plaintiff’s alleged pain and suffering
[is] so inseparable from alleged emotional distress” that a waiver of the privilege must still be
found.
Case 1:17-cv-01177-LTB-NYW Document 31 Filed 03/23/18 USDC Colorado Page 1 of 3
3. However, under well-settled law, pain and suffering has a very narrow definition,
which has been clearly delineated by the U.S. Supreme Court, as follows:
Although pain and suffering technically are mental harms,
these terms traditionally “have been used to describe sensations
stemming directly from a physical injury or condition.”
Consolidated Rail Corp. v. Gotshall, 512 U.S. 532, 550 (1994).
4. Pain and suffering is a natural consequence of all serious physical injuries, such
that its presence may be inferred. See C.J.S. Damages, §383 Generally (“To justify a recovery
for pain and suffering, the evidence must show either the actual existence thereof or else such
injuries that pain and suffering would presumably follow . . . Physical pain and suffering may
often be inferred from the plaintiff's condition or from the nature of the injury without direct
evidence.”).
5. None of the cases cited by Defendant have held that a Plaintiff who has
voluntarily limited his noneconomic damages to pain and suffering, and who has withdrawn any
claim for emotional distress, should be required to waive his psychotherapist-patient privilege.
Indeed, such a requirement would be inconsistent with the important public policies served by
that privilege, which include safeguarding the “mental health of our citizenry.” Jaffee v.
Redmond, 518 U.S. 1, 11 (1996).
6. In light of the societal importance of the psychotherapist-patient privilege, as well
as Mr. McGrath’s affirmative waiver of any 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.
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Dated this 23 rd day of March, 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
CERTIFICATE OF SERVICE
I hereby certify that on this 23 rd day of March, 2018, I sent a true and correct copy of the
foregoing PLAINTIFF DAKOTA McGRATH’S REPLY 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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