Doe et al v. McAfee et al
MINUTE ORDER Denying 136 Defendants' Motion for Independent Mental Examination Pursuant to Fed. R. Civ. P. 35. Granting 153 Defendants' Motion to Compel Plaintiffs John and Jane Doe to Produce Therapy Records, as set forth in the order, by Magistrate Judge Michael J. Watanabe on 6/23/2015.(emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01287-MSK-MJW
E.C., by her parents and next friends,
E.S.C., by his parents and next friends, and
J.C., by his parents and next friends,
MITCHELL MIHALKO, and
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Defendants’ Motion for Independent Mental
Examination Pursuant to Fed. R. Civ. P. 35 (Docket No. 136) is DENIED, and that
Defendants’ Motion to Compel Plaintiffs John and Jane Doe to Produce Therapy
Records (Docket No. 153) is GRANTED, for the following reasons.
Plaintiffs John and Jane Doe, as opposed to their children, bring garden-variety
claims for emotional distress. In the operative complaint, they pray for compensation for
“pain and suffering” as well as economic losses; in their discovery responses, they
rephrase to state “emotional and psychological distress,” but assert no specific
psychological condition and make clear that they intend the phrase to mean nothing
more than “pain and suffering.” This is the very definition of “garden variety” claims.
Under the well-established precedent of this district, such garden-variety claims
for emotional distress (1) are sufficient to waive the Jaffee v. Redmond, 518 U.S. 1
(1996), privilege for confidential psychotherapist-patient communications, but (2) are not
sufficient to place the plaintiffs’ mental health at issue for purposes of Rule 35
independent medical examinations. LeFave v. Symbios, Inc., 2000 WL 1644154 (D.
Colo. Apr. 14, 2000); Fox v. Gates Corp., 179 F.R.D. 303 (D. Colo. 1998) (citing Dixon
v. City of Lawton, 898 F.2d 1443 (10th Cir. 1990), and concluding that its waiver
standards continue to apply post-Jaffee).
To prevail on the Rule 35 motion (Docket No. 136), Defendants cite cases
involving allegations of actual, diagnosable psychological conditions. See, e.g.,
Simpson v. Univ. of Colo., 220 F.R.D. 354 (D. Colo. 2004) (PTSD allegedly caused by
defendants’ conduct). Such is not the case here. In fact, Defendants do not argue that
simple garden-variety allegations are sufficient for Rule 35; rather, Defendants argue
that this case presents something more than garden-variety allegations. Defendants
are wrong, as to John and Jane Doe at least, and their Rule 35 motion is therefore
To defeat the Jaffee motion (Docket No. 153), Plaintiffs argue that because their
mental-health allegations aren’t sufficient to be “in controversy” for purposes of Rule 35,
they likewise aren’t sufficient to be “at issue” for purposes of waiving privileges.
Plaintiffs’ argument is flatly contrary to the binding precedent of this district. Fox, supra.
Defendants’ Jaffee motion is therefore granted.
It is further ORDERED that:
Plaintiffs John Doe and Jane Doe shall execute waivers for the disclosure
of Cameron Lorenc’s and Craig Cato’s therapy records on or before July
2, 2015; and
Defendants’ request for attorneys fees and costs incurred in bringing their
Jaffee motion is denied under Rule 37(d)(3), finding that an award of
expenses would be unjust under the circumstances.
Date: June 23, 2015
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