Vreeland v. Fisher et al

Filing 314

ORDER by Magistrate Judge Kathleen M. Tafoya on 01/29/16 GRANTING IN PART 263 Plaintiff's Motion for Order Compelling. Defendant shall provide copies of the email correspondence between Dr. Tiona and Defendants counsel no later than February 5 , 2016. The motion is DENIED in all other respects. ORDERED that Plaintiff shall file his response to Defendants Motion for SummaryJudgment (Doc. No. 254) no later than February 16, 2016. Defendant Fisher may file his reply no later than February 25, 2016. No further extension of these deadlines will be granted. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13BcvB02422BPABBKMT

DELMART E.J.M VREELAND, II,
Plaintiff,
v.
THOMAS C. FISHER, MD,
Defendant.

ORDER

This matter is before the court on Plaintiff’s “Motion for an Order Compelling Production
of Document Compelling Testimony, and for Sanctions Against Defendant Thomas C. Fisher,
M.D., Defendant[’]s Lawyers Craig W. Cain[,] Jennifer L. White, and Defendant’s Retained
Expert Witness CDOC Chief Medical Officer, Susan M. Tiona, M.D. with Request for Hearing
and Order that all Parties Appear” (Doc. No. 263 [Mot.], filed August 31, 2015). Defendant filed
his response on September 15, 2015 (Doc. No. 275 [Resp.]), and Plaintiff filed his reply on
November 12, 2015 (Doc. No. 309-1 [Reply]).
Plaintiff first asserts that the defendant, through counsel, violated his right to
psychotherapist-patient privilege by asking him questions about his mental health and obtaining
his mental health records despite the fact that he has “never raised any issues regarding his mental
1

health.”(Mot. at 2, ¶ 3.)1 Plaintiff also asserts that Defendant illegally distributed copies of
Plaintiff’s mental health files to Defendant’s expert, Susan M. Tiona, M.D. (Id. at 5, ¶ 17.) In
Jaffee v. Redmond, 518 U.S. 1, 12–13 (1996), the Supreme Court held there is a
psychotherapist-patient privilege in federal cases. However, this “privilege is not absolute.”
Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006); see also Jaffee, 518 U.S. at 15 n.14
(“Like other testimonial privileges, the patient may of course waive the protection.”). “Numerous
courts since Jaffee have concluded that, similar to attorney-client privilege that can be waived
when the client places the attorney’s representation at issue, a plaintiff waives the
psychotherapist-patient privilege by placing his or her medical condition at issue.” Schoffstall v.
Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (collecting cases). Similarly, the Tenth Circuit has
held that a plaintiff who makes a request for emotional distress damages places his psychological
state in issue and entitles a defendant to his mental health records. Fisher v. Sw. Bell Telephone
Co., 361 F. App’x 974, 978 (10th Cir. 2010).

1 The court notes that Plaintiff, in clarifying the issues in his motion, does not mention this issue in
his reply. (See Reply.) However, the court will address this argument nevertheless.

2

The court agrees with Defendant that Plaintiff has put his mental health status at issue in his
Complaint and that, as such, Defendant’s counsel properly forwarded the records to Defendant’s
expert. (See Resp. at 4 [quoting statements from Plaintiff’s Complaint in which Plaintiff made
allegations related to mental anguish and mental fatigue] and 11.) The court also notes that
Plaintiff requested a copy of his own mental health file in discovery, and, during a May 22, 2015
hearing, the court granted Plaintiff’s motion to compel the production of Plaintiff’s postoperative
mental health records. (See Doc. No. 271 [Tr. of May 22, 2015 Hr’g] at 65–67.) Moreover,
Plaintiff signed releases for Defendant to obtain the records including any or all information
involving psychological or psychiatric conditions. (See Resp., Ex. F.) Finally, during Plaintiff’s
deposition, Defendant’s counsel asked only one question of Plaintiff pertaining to mental health
care Plaintiff received postoperatively; however Plaintiff refused to answer the question. (See
Resp., Ex. A, p. 83–84.) Plaintiff’s motion is denied in this respect.
Next, Plaintiff states that Defendant’s former counsel forwarded copies of Plaintiff’s
medical and mental health files to Defendant’s new counsel without waiver or authorization from
Plaintiff. (Mot., ¶ 10.) Defendant asserts that his counsel properly obtained a copy of the
Defendant’s legal file from Defendant’s former lawyer. (See Resp. at 2, 11.) C.R.C.P. 1.16(d)
requires a lawyer, upon withdrawal, to the extent reasonably practicable to protect the client’s
interest, to surrender all papers and property to which the client is entitled.2 Defendant’s legal file

2 There are two exceptions to the requirement that a lawyer must surrender papers and property to

which the client is entitled, neither of which is applicable here. See Colo. Bar Ass’n Formal
Ethics Op. 104, Surrender of Papers to the Client Upon Termination of the Representation
(Adopted Apr. 17, 1999).
3

belongs to him. Neither Defendant nor Defendant’s former counsel has objected to the transfer of
Defendant’s legal file to Defendants’ current counsel. Plaintiff’s motion is denied in this respect.
Next, Plaintiff argues that during Defendant’s deposition, Defendant’s counsel interrupted
96% of the questions and ordered Defendant not to respond to questions or objected to questions,
and that Defendant lied to cover up his drug use. (See Mot. at 5–9.) Plaintiff also alleges that
during the deposition of Defendant’s expert, Dr. Tiona, Defendant’s counsel told Dr. Tiona not to
answer questions and made many needless objections, and that Dr. Tiona refused to answer
questions or answered with meaningless responses. (See Mot. at 10–12.) With only a few
exceptions, Plaintiff fails to cite specific pages of the deposition transcripts. Although Plaintiff
identifies the depositions, he does so wholesale, for the most part without identifying pertinent
facts or specific citations. Plaintiff’s failure to identify where in the record particular facts are
located impedes consideration of Plaintiff’s arguments. The court is “not obligated to comb the
record in order to make [Plaintiff’s] arguments for [him].” Mitchell v. City of Moore, Okla., 218
F.3d 1190, 1199 (10th Cir. 2000). Moreover, Local Rule 7.1(e) provides that “[e]very citation in
a motion, response or reply shall include the specific page or statutory subsection to which
reference is made.” D.C.COLO.LCivR 7.1(e). Both Plaintiff’s motion and reply to the motion
violate this rule.
Plaintiff does specifically cite to Defendant’s deposition at pages 293 through 297,
objecting to Defendant’s counsel’s disruption of the flow of Defendant’s deposition. (Mot., ¶ 24.)
Upon a review of these pages, the court does not find that Defendant’s counsel’s objections were
unwarranted or improper under Fed. R. Civ. P. 26 or 30. Rather, Defendant’s counsel’s

4

objections primarily were based on the form of and the argumentative nature of Plaintiff’s
questions. (See Resp., Ex. 9 at 293–297.) Plaintiff also cites to these pages of Defendant’s
deposition in his contention that Defendant lied about the number of times he had been to rehab.
(Mot., ¶ 24.) However, Plaintiff concedes that Defendant later corrected this portion of his
deposition. (Id., ¶ 26.) Plaintiff states that this “lie hindered the deposition” (id., ¶ 27); however
at the time of the deposition Plaintiff apparently was not aware of the alleged lie and he fails to
explain how, if he had known the correct answer at the time of the deposition, his questions might
have been different or how he differently he would have conducted the deposition. Plaintiff’s
motion for additional time to depose the defendant and for sanctions against the defendant is
denied.
Finally, Plaintiff contends that Dr. Tiona was under a subpoena requiring her to produce all
documents given to her by Defendant’s counsel but that when Dr. Tiona’s deposition commenced,
he learned that neither Defendant’s counsel nor Dr. Tiona brought the file. (Id., ¶ . (Mot., ¶¶ 34
& 36.) Upon a review of Dr. Tiona’s deposition transcript, it is clear that Dr. Tiona complied with
the subpoena (see Resp., Ex. B at 29–33), with the exception of providing copies of email
correspondence between herself and Defendant’s counsel. To the extent Plaintiff objects to Dr.
Tiona’s failure to provide copies of the email correspondence, Defendant’s counsel advised she
had copies of the correspondence with her at the deposition and that Plaintiff could review the
documents and question Dr. Tiona. (Id. at 85–88.) Plaintiff did not request to review the
documents. Thus, Plaintiff cannot claim that Dr. Tiona’s failure to provide the emails impeded
the way he conducted Dr. Tiona’s deposition.

5

Plaintiff’s request for additional time to depose the defendant and Dr. Tiona is denied.
However, Plaintiff’s motion to require Dr. Tiona to produce the email correspondence between
herself and Defendant’s counsel is granted.
WHEREFORE, for the foregoing reasons, it is
ORDERED that Plaintiff’s “Motion for an Order Compelling Production of Document
Compelling Testimony, and for Sanctions Against Defendant Thomas C. Fisher, M.D.,
Defendant[’]s Lawyers Craig W. Cain[,] Jennifer L. White, and Defendant’s Retained Expert
Witness CDOC Chief Medical Officer, Susan M. Tiona, M.D. with Request for Hearing and Order
that all Parties Appear” (Doc. No. 263) is GRANTED in part. Defendant shall provide copies of
the email correspondence between Dr. Tiona and Defendant’s counsel no later than February 5,
2016. The motion is DENIED in all other respects. It is further

6

ORDERED that Plaintiff shall file his response to Defendant’s Motion for Summary
Judgment (Doc. No. 254) no later than February 16, 2016. Defendant Fisher may file his reply
no later than February 25, 2016. No further extension of these deadlines will be granted.3
Dated this 29th day of January, 2016.

3 The date for Plaintiff to respond to the Motion for Summary Judgment was August 31, 2015.

Plaintiff moved for and was granted a 56-day extension to respond. (See Doc. Nos. 258 & 260.)
On October 19, 2015, Plaintiff moved for a second extension of time to file his response to the
Motion for Summary Judgment. (Doc. No. 294.) This court granted that motion in part, stating
that “Plaintiff’s response to the Motion for Summary Judgment shall be filed no later than fourteen
days after this court’s ruling on the Motion to Compel (Doc. No. 263), unless otherwise ordered by
the court in the order on the Motion to Compel.” (Doc. No. 308.) The court notes that the
depositions that are the subject of Plaintiff’s motion to compel were completed on May 22
(Plaintiff’s deposition), July 7 (Defendant’s deposition), and August 24, 2015 (Defendant Tiona’s
deposition). Plaintiff did not file his Motion to Compel until August 31, 2015, well after the
parties’ depositions had been completed.
7