Campbell et al v. Logue et al

Filing 91

ORDER Granting Plaintiff's 86 Ex Parte Motion to Quash. Signed by Magistrate Judge David H. Bartick on 5/11/2012. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No.

STEVEN CAMPBELL, an individual;
CARLOTA FRANKLIN-CAMPBELL, an
individual,

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Plaintiffs,

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v.

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WILLIAM LOGUE, an individual and as
trustee for the Sears/Logue Revocable Trust;
DAVID MARQUEZ, an individual;
MIKELSON YACHTS, INC., a California
corporation; NAN YA PLASTICS
CORPORATION, a foreign corporation; NAN
YA PLASTICS, a California corporation,

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10-cv-1821-JM (DHB)

ORDER GRANTING PLAINTIFF’S EX
PARTE MOTION TO QUASH
[ECF No. 86]

Defendants.

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On March 27, 2012, Plaintiff Carlota Franklin-Campbell (“Plaintiff”) filed an Ex Parte Motion

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to Quash Subpoena to Psychotherapist. (ECF No. 86.) On April 19, 2012, Defendants William Logue

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and Sears/Logue Revocable Trust (collectively, “Defendants”) filed an Opposition. (ECF No. 89.) On

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April 26, 2012, Plaintiff filed a Reply. (ECF No. 90.) Based on a careful review of the parties’ papers,

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and for the reasons discussed below, Plaintiff’s Motion to Quash is hereby GRANTED.

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I. BACKGROUND

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This is an action brought by Plaintiff and her husband, Steven Campbell. Mr. Campbell alleges

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that on December 7, 2008, he suffered injuries after falling on a boat while marlin fishing near Cabo San

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Lucas, Mexico. Mr. Campbell seeks to recover for his personal injuries under negligence and strict

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product liability theories. Plaintiff alleges only a loss of consortium claim in which she seeks to recover
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for the loss of “care, comfort and consortium of her husband.” (First Amended Complaint, ECF No. 44,

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at 9:27.)

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During her deposition in this action, Plaintiff testified that following her husband’s accident she

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began taking medication prescribed by a psychiatrist, Dr. Delbert Secrist. When questioned about the

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purpose of her visits to Dr. Secrist, Plaintiff simply stated: “I was overwhelmed with my situation.”

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Following Plaintiff’s deposition, counsel for Defendants issued a subpoena to Dr. Secrist in

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which Defendants requested all records from Dr. Secrist relating to Plaintiff, including, among other

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things, medical and dental histories, examinations and diagnoses, correspondence and billing records.

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Defendants’ subpoena states: “IT IS ALLEGED THAT INJURIES HAVE BEEN SUSTAINED TO

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THE HEALTH AND NERVOUS SYSTEM AND HAVE CAUSED/CAUSE GREAT MENTAL,

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PHYSICAL, AND NERVOUS PAIN AND SUFFERING.” Plaintiff seeks an order quashing the

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subpoena.

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II. DISCUSSION

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A.

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In her Motion to Quash, Plaintiff argues that the records sought by Defendants are privileged,

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confidential and protected from disclosure by the patient-psychotherapist privilege and Rule 501 of the

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Federal Rules of Evidence. Plaintiff also contends that the “records are irrelevant because [she] is not

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seeking to recover the costs of this treatment or to introduce statements made by or to her

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psychotherapist as evidence of liability or damages for her claim.” She also contends that because she

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is making only a claim for loss of consortium, and not for emotional distress, she has not waived the

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privilege.

Discovery Dispute

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In their Opposition, Defendants cite to Plaintiff’s deposition testimony, summarized above, in

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support of their position that they are entitled to discover additional information concerning Plaintiff’s

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claims and alleged damages. Defendants rely on this Court’s opinion in Price v. County of San Diego,

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165 F.R.D. 614, 622 (S.D. Cal. 1996), in which Judge Anthony J. Battaglia found that the

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psychotherapist-patient privilege was waived when the plaintiff’s psychological records were placed

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at issue as a result of the plaintiff’s claim for loss of consortium. Defendants also rely on Aguilar v.

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County of Fresno, No. 08-cv-1202-AWI (GSA), 2009 U.S. Dist. LEXIS 107946, at *20-21 (E.D. Cal.
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Oct. 29, 2009), in which the court compelled disclosure of the plaintiff’s mental health treatment records

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despite the plaintiff having not made a claim for emotional distress.

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In her Reply, Plaintiff again argues that the requested records are not relevant because she is not

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making a claim for emotional distress. Plaintiff also argues that the cases relied upon by Defendants

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are inapposite.

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B.

Analysis

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As Plaintiff recognizes, in Jaffe v. Redmond, 518 U.S. 1, 15 (1996), the Supreme Court held “that

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confidential communications between a licensed psychotherapist and her patients in the course of

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diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of

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Evidence.” The Supreme Court’s recognition of this privilege was based, at least in part, on a

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recognition that “[e]ffective psychotherapy . . . depends upon an atmosphere of confidence and trust in

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which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and

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fears.” Id. at 10. The privilege also “serves the public interest by facilitating the provision of

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appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental

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health of our citizenry, no less than its physical health, is a public good of transcendent importance.”

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Id. at 11.

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Here, Defendants do not suggest that federal law does not recognize the psychotherapist-patient

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privilege. Rather, Defendants maintain that Plaintiff waived the privilege by putting her emotional

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health at issue in this case, as evidenced by her deposition testimony in which she stated that following

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her husband’s accident she visited Dr. Secrist and was prescribed medication because she was

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“overwhelmed with [her] situation.” Plaintiff maintains that she has not waived the privilege because

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she is not seeking to recover the costs of the treatment provided by Dr. Secrist, nor is she seeking to

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introduce statements made to or by Dr. Secrist as evidence of liability or damages. Rather, Plaintiff

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states that she is only making a claim for loss of consortium and not for emotional distress. Thus, the

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question presently before the Court is whether, under these circumstances, Plaintiff has waived the

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psychotherapist-patient privilege.

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Following Jaffe, the Supreme Court intended for the lower courts to establish the parameters of

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the psychotherapist-patient privilege and the situations in which a party will be found to have waived
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the privilege. Indeed, the Supreme Court stated that “it is neither necessary nor feasible to delineate [the

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privilege’s] full contours in a way that would ‘govern all conceivable future questions in this area.’” Id.

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at 18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 386 (1981)). Since Jaffe, as Plaintiff

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recognizes, the courts have taken two primary approaches to waiver, with some courts opting for a broad

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approach and others opting for a narrow approach. Citing to Fitzgerald v. Cassil, 216 F.R.D. 632, 636

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(N.D. Cal. 2003),1 Plaintiff requests that the Court follow the narrow approach. However, this Court

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follows the broad approach.

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In Fritsch v. City of Chula Vista, 196 F.R.D. 562, 568 (S.D. Cal. 1999), this Court followed the

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broad view of waiver. In so doing, the Court “conclud[ed] that a plaintiff who seeks to recover for

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emotional distress damages is relying on her emotional condition as an element of her claim.” Id. In

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Fritsch, the Court recognized that the psychotherapist-patient privilege generally allows a plaintiff “to

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keep confidential all of her conversations with her therapist,” but, in that case, the plaintiff had “waived

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that privilege by seeking compensatory damages for injuries to her emotional health.” Id. at 569. This

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Court further recognized “that the plaintiff has the choice to keep his communications with his therapist

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private by controlling the particular relief sought in the litigation.” Id.

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Here, Plaintiff has filed a very limited action in which she alleges only a single cause of action

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for loss of consortium. Plaintiff does not assert a cause of action involving a specific psychiatric injury

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or disorder, nor does she seek damages for emotional distress, medical expenses or lost wages associated

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with her psychotherapy treatment. In limiting the relief she seeks to damages for loss of consortium,

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Plaintiff chose to keep her communications with Dr. Secrist private. She also elected to limit the type

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of evidence that she will be able to present in support of her loss of consortium claim. “The concept of

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consortium includes not only loss of support or services; it also embraces such elements as love,

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companionship, comfort, affection, society, sexual relations, the moral support each spouse gives the

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other through the triumph and despair of life, and the deprivation of a spouse’s physical assistance in

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operating and maintaining the family home.” Ledger v. Tippitt, 164 Cal. App. 3d 625, 633 (1985)

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The court in Fitzgerald outlined the differences between the two approaches as follows: “Under
the broad approach, courts have held that a simple allegation of emotional distress in a complaint
constitutes waiver. (Citations omitted.) Under the narrow approach, at the other end of the spectrum,
courts have held that there must be an affirmative reliance on the psychotherapist-patient
communications before the privilege will be deemed waived.” 216 F.R.D. at 636.
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(disapproved on other grounds by Elden v. Sheldon, 46 Cal. 3d 267, 277, (1988)). Plaintiff is not

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seeking to recover for any emotional distress or mental anguish, even if the accident to her husband and

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alleged loss of consortium that followed did in fact result in emotional distress for which Plaintiff was

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treated by Dr. Secrist. In other words, Plaintiff is seeking to recover damages for that which her

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husband can no longer provide her, not for the emotional distress that such loss may have caused.

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Pursuant to Jaffe, confidential communications between a licensed psychotherapist and a patient

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are privileged and must be protected unless the privilege is waived or germane to the underlying cause

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of action. Because this Court finds that Plaintiff’s assertion of a cause of action for loss of consortium

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does not waive this privilege, Defendants’ subpoena to Dr. Secrist is properly quashed in order to

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protect against the disclosure of Plaintiff’s privileged treatment records.

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In reaching this conclusion, the Court notes that neither case relied upon by Defendants suggests

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a different result. Not only was the Price decision arrived at prior to the Supreme Court’s holding in

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Jaffe, but Price utilized a balancing test of relevancy versus privacy interest that was expressly rejected

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in Jaffe. Jaffe, 518 U.S. at 19 (“We reject the balancing component of the privilege implemented by

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[some courts]. Making the promise of confidentiality contingent upon a trial judge’s later evaluation

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of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure

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would eviscerate the effectiveness of the privilege.”).

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In Aguilar, not only was the plaintiff making a claim for loss of consortium, but she was also

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“seeking medical expenses and lost wages which renders any medical treatment she received as a result

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of the incident relevant and discoverable.” 2009 U.S. Dist. LEXIS, at *13-14. Moreover, evidence of

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the plaintiff’s drug use and its effect on her marital relationship placed the treatment records at issue

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with respect to the loss of consortium claim. Id. at *14-15. These factors are not present in the instant

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action.

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III. CONCLUSION AND ORDER
Based on the foregoing, the Court orders that Plaintiff’s Ex Parte Motion to Quash Subpoena
to Psychotherapist is hereby GRANTED.
IT IS SO ORDERED.
DATED: May 11, 2012

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DAVID H. BARTICK
United States Magistrate Judge

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