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Estate of DiPiazza v. City of Madison

United States District Court, W.D. Wisconsin

May 5, 2017

THE CITY OF MADISON and JUSTIN BAILEY, GARY PIHLAJA, and CARY LEEREK, in their individual capacities, Defendants.


          WILLIAM M. CONLEY District Judge.

         Before the court are two discovery motions: (1) plaintiff's motion to “exclude fraudulently obtained and unlawfully disseminated medical records and halt any further dissemination” (dkt. #77); and (2) defendant's motion to compel discovery (dkt. #93). Both of these motions concern disputes surrounding the same set of documents: Ashley DiPiazza's privileged and confidential medical records. The parties briefed both motions and the court held a telephone hearing on April 14, 2017. After hearing further argument from both parties, the court issued oral rulings as to some of the more pressing discovery issues and objections. To provide the parties more clarity as they prepare for trial, the court now renders this more definitive, comprehensive ruling. In summary, for the reasons explained below, the court declines to give plaintiff the broad relief sought in its motion, and it also declines to order further discovery by defendants into plaintiff's privileged mental health records. Consistent with the court's oral rulings at the April 14 hearing, and as elaborated further below, some additional caveats are noted respecting the treatment of this information at trial.


         In dueling motions, plaintiff is seeking to exclude from use at trial (and otherwise restrict) and defendants are seeking to compel Ms. DiPiazza's mental health records from a period of several years before her death. An oddity of the latter motion is that defendants are already in possession of many of these documents, having obtained them by other means. Although trial is near and questions of use and admissibility of evidence already in defendants' possession are inevitable, both motions are fundamentally premised on the scope of proper discovery, and the court will endeavor to treat them as such. For purposes of logical simplicity in resolving the issues raised by both motions, the court will address defendants' motion to compel first.[1]

         I. Defendants' Motion to Compel

         Defendants seek to compel the production of plaintiff's mental health records, which they claim are relevant to and implicated by plaintiff's planned presentation of damages, in the event the case reaches that stage.[2] Plaintiff denies that there is any relevance, but also contends that even if the records are relevant, they are nonetheless protected from discovery by the doctor- and/or psychotherapist-patient privilege.[3]Defendants, in turn, argue that that privilege is waived (or at least pierced in a limited sense) if plaintiff's case for damages puts Ms. DiPiazza's mental or emotional health at issue.

         While the court continues to question how these records could be properly introduced and admitted at trial, that is not the question now before the court, though it soon will be. Again, the initial question here is not one of admissibility, but whether defendants should be permitted to conduct discovery into these records. See Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 930-31 (7th Cir. 2004) (noting the broad scope of discovery and permissive standard for relevance under Rule 26(b)(1)). Although the medical records at issue here appear to fall within the scope of the federal psychotherapist-patient privilege, Jaffee v. Redmond, 518 U.S. 1 (1996), the Court of Appeals for the Seventh Circuit has held that the privilege can be waived: “If a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state.” Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006) (citing Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)).[4]

         What this commonsense principle means in practice, however, and how it applies to the specific facts of a particular discovery dispute, varies. Courts have generally adopted three approaches in evaluating claims that plaintiffs have opened the door and allowed defendants to discover their privileged mental health records: a “broad” approach to waiver holds that plaintiffs place their mental or emotional condition at issue and thus waive the privilege simply by making any claim for emotional distress damages; by contrast, a “narrow” approach holds that the privilege is waived only when plaintiffs affirmatively inject their mental or emotional state into the case by actually relying on the substance of a psychotherapist's diagnosis or communications, offering expert medical testimony to prove their emotional damages, or where the emotional distress claims are especially “severe”; a third approach, which has been adopted by a greater number of district courts in this circuit and elsewhere, though not yet the Seventh Circuit itself, attempts to stake out a more pragmatic “middle ground.” See Awalt v. Marketti, 287 F.R.D. 409, 417-18 (N.D. Ill. 2012) (collecting cases).

         This third, pragmatic approach (which arguably falls closer in substance to the “narrow” than the “broad” view) is both described and exemplified by the Awalt court:

The majority view-or the “middle ground” approach-to waiver of the psychotherapist-patient in cases in which the plaintiff seeks damages for emotional distress carefully evaluates the kind of emotional distress claimed before concluding whether the privilege has been waived or not. The weight of authority holds that a party waives the privilege by claiming damages in situations where that party plans to introduce evidence of psychological treatment in support of their damages claim at trial. Thus, the privilege may be waived where the plaintiff seeks to put into evidence psychological treatment in support of their claim for damages, but it is not waived where the plaintiff does not seek damages for emotional distress by introducing evidence that is not specific, concrete, or for which they received counseling as a result.

Id. at 417-18 (internal citations omitted); see also Koch v. Cox, 489 F.3d 384, 390 (D.C. Cir. 2007) (“[W]here a plaintiff merely alleges ‘garden variety' emotional distress and neither alleges a separate tort for the distress, [nor] any specific psychiatric injury or disorder, [n]or unusually severe distress, that plaintiff has not placed his/her mental condition at issue to justify a waiver of the psychotherapist-patient privilege.”) (quoting Jackson v. Chubb Corp., 193 F.R.D. 216, 225 n.8 (D. N.J. 2000)).

         In Awalt, the plaintiff brought federal claims under 42 U.S.C. § 1983, as well as state law claims, seeking damages for loss of consortium and severe emotional distress after her husband died in the custody of county jail officials. Defendants in turn sought discovery of a broad range of medical records regarding both Mr. Awalt's and Mrs. Awalt's history of mental health conditions - some, but not all, of which was privileged. Awalt, 287 F.R.D. at 411-12. Because Mrs. Awalt made no claims for any damages regarding her husband's mental state, and her own claims for emotional damages were “garden variety, ” for which she did not put her own specific psychological state, treatment, or records at issue, the court denied defendants' motion to compel discovery as to the bulk of their medical records. Id. at 417-23. The court did, however, order the discovery of medical records of Mrs. Awalt's treatment for domestic abuse by Mr. Awalt, because they were relevant to the plaintiff's claim for damages for loss of consortium and severe emotional distress under Illinois state law. Id. at 423-24.[5]

         In a wrongful death claim brought under state law by a surviving spouse or relative, any claimed damages are likely to include loss of society or loss of consortium. Thus, in a case such as Awalt, the length and quality of the decedent's life, as well as the subjective value of a lost relationship, may be essential to the plaintiff's case for damages, making psychological evidence highly relevant. By contrast, “in a section 1983 action, the estate may recover damages for loss of life, conscious pain and suffering experienced by the decedent prior to death, and punitive damages.” Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1190 (7th Cir. 1985). Indeed, both parties seem to agree that damages for loss of society or loss of consortium are not recoverable in a § 1983 suit based solely on federal law.

         In particular, plaintiff acknowledges that evidence of Ms. DiPiazza's earnings, financial value, life expectancy, health, or “habits of industry, sobriety, and thrift” is irrelevant to plaintiff's claim for damages, and thus, would be ...

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