Awalt v. Marketti et al
Filing
138
MEMORANDUM Opinion and Order Signed by the Honorable Virginia M. Kendall on 10/29/2012.(tsa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELIZABETH AWALT, as Administrator of
the ESTATE OF ROBERT AWALT,
Plaintiff,
v.
TERRY MARKETTI, et al.,
Defendants.
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11 C 6142
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Elizabeth Awalt brought this suit against certain personnel who worked at
or supervised the Grundy County Jail (collectively “the Grundy County Defendants”), as
well as certain medical care providers who serviced the Jail (collectively “the Medical Care
Defendants”) after her husband died at the Jail as a result of the Defendants’ alleged
violations of his constitutional rights or their alleged murder of him. (Doc. 28; First
Amended Complaint).
The Grundy County Defendants now move to compel discovery against Mrs. Awalt
(Doc. 72), and she asserts the psychotherapist-patient privilege in response.1
1
The
The parties have satisfied the procedural prerequisites required by the Federal Rules of
Civil Procedure and the Local Rules for the Northern District of Illinois in bringing the instant
Motion. Federal Rule of Civil Procedure 37(a)(2)(A) and Local Rule 37.2 require that the
movant make a good faith attempt to confer with the nonmovant before bringing a motion to
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Defendants seek documents obtained by Mrs. Awalt concerning Mr. Awalt’s mental health
care provided by the Illinois Department of Corrections and waivers for those documents,
they also seek documents and waivers related to psychological evaluations of Mr. Awalt
conducted by the Social Security Administration, waivers for Mr. Awalt’s records at
Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital, and
waivers and records relating to Mrs. Awalt’s treatment received at Guardian Angel
Community Services, a counseling center, and documents and waivers from the hospital
where Mrs. Awalt allegedly sought medical treatment for domestic abuse by Mr. Awalt.2
The manner in which Mr. Awalt died is of critical importance to Mrs. Awalt’s
theories of liability in this case. The Grundy County Coroner determined that Mr. Awalt’s
death was caused by suffocation from the presence of a sock in his mouth, presumably in
anticipation of a seizure. Mrs. Awalt has alleged two alternative theories of death in this
case. First, she alleges that Mr. Awalt’s seizure was caused by the Defendants’ failure to
provide him with adequate medical care in violation of his constitutional rights secured by
the Eighth and Fourteenth Amendments to the Constitution. Alternatively, she alleges that
the Grundy County Defendants murdered Mr. Awalt by asphyxiating him when they
compel discovery in a federal district court. The Defendants satisfied their obligations under
these rules by making a good faith effort to confer with Mrs. Awalt’s counsel concerning the
instant discovery disputes before asking for this Court’s assistance and intervention. Thus, the
Defendants’ Motion to Compel is properly before the Court.
2
The parites have resolved their dispute regarding the Defendants’ contention
interrogatories, thereby mooting that portion of this Motion to Compel
2
allegedly stuffed a sock down his throat. Defendants argue that Mrs. Awalt’s first theory
is contrary to the evidence, which they allege proves that anti-seizure medication was
administered to Mr. Awalt and was in his system at the time of his death. Defendants also
contend that the murder theory is refuted by evidence that Mr. Awalt allegedly committed
suicide. The Defendants argue that Morris Hospital records disclosed by Mrs. Awalt state
that on the night of Mr. Awalt’s death she told hospital staff that her husband suffered
from bi-polar disorder and manic depression.
Mrs. Awalt also disclosed a treatment
record which states that in 2008 Mr. Awalt was prescribed Prozac, a psychiatric medication,
as well as Social Security Administration documents that claim manic depression, bi-polar
disorder, and seizures as grounds for disability applications that Mr. Awalt filed with the
agency in 2008, 2009, and 2010.
The Defendants argue that Mrs. Awalt’s continuing denial of Mr. Awalt’s history
of mental health conditions, coupled with her disclosure of documents evidencing
potentially long-standing and sporadically medicated mental health conditions, leave them
with no choice but to subpoena Mr. Awalt’s mental health records to investigate the
possibility that Mr. Awalt’s death was indeed caused by suicide. In her Amended
Complaint, Mrs. Awalt alleges as one of her theories pertaining to the cause of Mr. Awalt’s
death that one or more of the Grundy County Defendants intentionally put a sock in Mr.
Awalt’s throat causing him to asphyxiate. The Defendants argue that they must be
3
permitted to investigate every possible cause of death to refute this claim, including the
possibility that Mr. Awalt took his own life. They argue that this includes discovery of Mr.
Awalt’s mental health records kept by the Illinois Department of Corrections, the Social
Security Administration, and Provena St. Joseph’s Hospital Mental Facilities and Fort
Logan Mental Hospital. The Defendants assert that in light of the evidence disclosed so far
and Mrs. Awalt’s alternative theory of liability concerning the cause of her husband’s death
they must be permitted to examine Mr. Awalt’s psychological records to discover the
nature and extent of any mental illnesses he may have had in the period before his death
to present the defense that suicide was the actual cause of his death.
In addition, the Defendants seek records pertaining to Mrs. Awalts alleged
treatment for domestic abuse by Mr. Awalt so that they can paint a picture of the Awalt’s
relationship that undermines Mrs. Awalt’s claim of damages for loss of consortium and
severe emotional distress. To these ends the Defendants seek records from Guardian Angel
Community Services, a counseling center, as well as medical records from treaters who
may have treated Mrs. Awalt for domestic abuse by Mr. Awalt. For the reasons stated
herein, the Defendants’ Motion to Compel all of Mr. Awalt’s psychological records as well
as Mrs. Awalt’s Guardian Angel records is denied because these documents that they seek
discovery of from Mrs. Awalt are protected from compelled disclosure by the federal
common law psychotherapist-patient privilege. The Defendants’ Motion is granted with
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respect to medical records pertaining to Mrs. Awalt’s treatment for domestic abuse, and
Mrs. Awalt is hereby ordered to sign a waiver permitting the Defendants to subpoena
records from treaters relating to her treatment for domestic abuse by Mr. Awalt.
II. Discussion
Mrs. Awalt argues that the requested discovery materials are covered by the federal
common law psychotherapist-patient privilege recognized by the Supreme Court in Jaffee
v. Redmond, 518 U.S. 1 (1996), and thus are protected from compelled disclosure by the
Defendants. The Defendants argue that Mrs. Awalt’s assertion of privilege is overbroad
and that such a blanket assertion of the psychotherapist-patient privilege is improper.
Further, they argue that Mrs. Awalt has waived the protections of the psychotherapistpatient privilege in this case by, among other things, putting her emotional state at issue
in the litigation by claiming damages for loss of consortium and sever emotional distress.
They contend that Mr. and Mrs. Awalt’s history of mental health issues, including records
pertaining to Mrs. Awalt’s counseling and treatment for domestic abuse, go to the heart of
Mrs. Awalt’s theory of liability in this case, as well as to the issue of damages to which she
may be entitled. For these reasons, the Defendants ask this Court to compel disclosure of
the requested documents as relevant and not protected by the psychotherapist-patient
privilege.
The Defendants have not provided a single authority, and this Court is aware of
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none, which holds that the psychotherapist-patient privilege may be abrogated by a
defendant’s desire to present an alternative theory of liability to a jury. In particular, the
Defendants here wish to argue that Mr. Awalt’s death was the result of suicide, and that
his psychological history as reflected in his medical records establishes that he was suicidal.
The Defendants have not supplied any case which holds that psychological records are
discoverable over the protections provided by the psychotherapist-patient privilege in
order to present an alternative theory of suicide as the cause of death of the plaintiff, as
represented by his estate. On the contrary, the Second Circuit and the District of Columbia
Circuit have both concluded that the privilege is not overcome when the plaintiff’s mental
state is put into issue only by the defendants, which is the case here. See In re Sims, 534 F.3d
117, 134 (2nd Cir. 2008); Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007). In addition, the
Eighth Circuit has held that a patient’s suicidal tendencies and threats are not sufficient to
waive the psychotherapist-patient privilege. See United States v. Ghane, 673 F.3d 771, 785
(8th Cir. 2012). Furthermore, in recognizing the psychotherapist-patient privilege, the Jaffee
Court rejected a balancing approach to deciding whether the privilege applies, stating that
“[m]aking the promise of confidentiality contingent upon a trial judge’s later evaluation
of the relative importance of the patient’s interest in privacy and the evidentiary need for
disclosure would eviscerate the effectiveness of the privilege.” Jaffee, 518 U.S. at 17. As the
Second Circuit explained, “as confidentiality is a sine qua non, the Jaffee Court refused to
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endorse the proposition that a court could subject a claim of psychotherapist-patient
privilege to a balancing test and deny protection if it found ‘in the interests of justice, [that]
the evidentiary need for the disclosure of the contents of a patient’s counseling sessions
outweighs that patient’s privacy interests.’” See In re Sims, 534 F.3d at 131 (quoting Jaffee,
518 U.S. at 7). Thus, this Court may not balance the Defendants’ need for Mr. Awalt’s
psychological records against Mr. Awalt’s privacy interest in compelling mandated
disclosure of those records.
i. Mr. Awalt’s Illinois Department of Corrections Mental Health Records
The Defendants seek twenty-three pages of documents obtained by Mrs. Awalt from
the Illinois Department of Corrections (“IDOC”), which she has withheld on the basis of
the psychotherapist-patient privilege. In her initial Rule 26 disclosures Mrs. Awalt
disclosed Mr. Awalt’s medical records from the night of his death. Included in these
records were notations by the hospital staff that Mrs. Awalt informed them that Mr. Awalt
suffered from bi-polar disorder and manic depression. The discharge diagnosis in the
hospital records was a possible suicide attempt. In response to the Defendants’ discovery
requests regarding these statements, Mrs. Awalt asserted that she was unaware that Mr.
Awalt suffered from manic depression, bi-polar disorder, suicidal ideation or attempts, or
other mental or psychological conditions prior to his death. Notwithstanding Mrs. Awalt’s
assertions that she was unaware that Mr. Awalt may have suffered from any mental health
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conditions, she disclosed records to the Defendants which indicate that the opposite is true.
Mrs. Awalt is aware that Mr. Awalt was evaluated by a psychologist or psychiatrist
when he was incarcerated at the IDOC on an unknown date. She is also aware of the
treatment because she has certain IDOC records in her possession which she has refused
to produce, instead identifying them in her privilege log. The Defendants requested that
Mrs. Awalt execute a waiver so they could obtain the records directly from the IDOC,
which she has refused to do on the basis of the psychotherapist-patient privilege. Mrs.
Awalt subpoenaed a copy of Mr. Awalt’s IDOC file herself, including his medical and
mental health records. She disclosed the documents received in response to the subpoena
but withheld eight additional pages of documents, which are also identified in her privilege
log. The Defendants assert that Mrs. Awalt should be compelled to disclose the documents
she originally had in her possession from the IDOC as well as the documents she later
received in response to her subpoena of the IDOC because these records bear upon the
suicide theory that the Defendants wish to present as the actual cause of Mr. Awalt’s death.
Mrs. Awalt has provided this Court with the documents over which she asserts
privilege for an ex parte in camera review. The records that the Defendants seek from the
IDOC confirm that Mr. Awalt had no suicidal tendencies. In 2004 and 2006, Mr. Awalt
reported during IDOC mental health evaluations that he had never received treatment or
used medication for mental or emotional issues, and he was found by IDOC personnel to
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present no risk of suicide. In 2007, Mr. Awalt discussed depression with psychologists at
the IDOC but denied any thoughts of suicide. One of the most common features of the
IDOC records is Mr. Awalt’s denial of any suicidal ideation and there is no document
anywhere in the IDOC records of any suicide attempt by Mr. Awalt.
The IDOC
psychologists diagnosed Mr. Awalt with major depressive disorder in full remission,
substance dependence, and adjustment disorder.
Mrs. Awalt asserts that the psychotherapist-patient privilege applies to protect from
disclosure the IDOC documents relating to Mr. Awalt’s mental health. In resolving a split
among the Circuits, the Supreme Court in Jaffee, 518 U.S. at 15, affirmatively recognized the
existence of a psychotherapist-patient privilege as a matter of federal common law under
Federal Rule of Evidence 501.3 The Court held in Jaffee that “confidential communications
between a licensed psychotherapist and her patients in the course of diagnosis or treatment
3
Although this federal question suit, brought under the Court’s grant of authority to hear
such cases pursuant to 28 U.S.C. § 1331, involves supplemental state-law claims arising under
Illinois law, the resolution of the privilege issues are governed by the federal common law of
privileges and not by the Illinois psychotherapist-patient privilege which is codified in the Mental
Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. See Jaffee,
518 U.S. 1 at 5 (applying the federal common law of privileges, and not Illinois state law of
privilege, to a case that included a claim arising under 42 U.S.C. § 1983 as well as a state-law
claim under the Illinois Wrongful Death Act); In re Pebsworth, 705 F.2d 261, 262 (7th Cir.
1983) (holding that in nondiversity actions the contours and exceptions of privileges are matters
of federal common law and that state-created principles of privilege do not control); see also Doe
v. Oberwise Dairy, 456 F.3d 704, 718 (7th Cir. 2006) (Posner, J.) (applying the federal common
law psychotherapist-patient privilege recognized in Jaffee to a case involving a federal claim
arising under Title VII of the Civil Rights Act of 1964 as well as a host of supplemental state-law
claims brought pursuant to Illinois state law).
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are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.”
Id. The purpose of the privilege, as explained by the Supreme Court, is to promote the
public interest in the honest exchange of communication between a psychotherapist and
their patient by establishing that information about the patient’s mental health will not be
disclosed to third-parties. See Id. at 10-12 (“Effective psychotherapy. . .depends upon an
atmosphere of confidence and trust in which the patient is willing to make a frank and
complete disclosure of facts, emotions, memories, and fears. . .The psychotherapist
privilege serves the public interest by facilitating the provision of appropriate treatment
for individuals suffering the effects of a mental or emotional problem. The mental health
of our citizenry, no less than its physical health, is a public good of transcendent
importance.”). Likewise, the privilege exists to avoid deterring people from obtaining
needed mental health treatment out of fear that by doing so they will put themselves at a
disadvantage in litigation. See Doe v. Oberwise Dairy, 456 F.3d 704, 718 (7th Cir. 2006)
(Posner, J.).
A threshold issue of whether Mrs. Awalt can assert the psychotherapist-patient
privilege on behalf of her deceased husband arises. Whether the psychotherapist-patient
privilege survives the death of the patient, or is otherwise affected by the patient’s death,
is a matter that has not been conclusively decided. There is a paucity of decisions on the
issue of whether the federal common law psychotherapist-patient privilege (as opposed to
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parallel state-law psychotherapist-patient privileges) survives the death of the patient. The
only two courts to have addressed the issue since Jaffee that this Court is aware of both held
that the privilege can be asserted on behalf of the patient, even where the patient is
deceased. See, e.g., Richardson v. Sexual Assault/Spouse Abuse Resource Center, Inc., 764 F.
Supp. 2d 736, 741 (D. Mary. 2011) (concluding that an unlicenced counselor working under
the supervision of a licensed social worker had standing to assert the privilege on behalf
of the patient); United States v. Hansen, 955 F. Supp. 1225 (D. Mont. 1997) (concluding that
a psychotherapist has standing to assert the privilege on behalf of a deceased patient and
stating that “[m]ost jurisdictions allow a psychotherapist to assert the privilege on behalf
of a patient” and citing as examples Ala. R. Ev. Rule 503(c); Fla. Stat. Ann. § 90.503(3)(d);
Haw.Rev.Stat. § 626–1, R. 504.1(c); N.J. R. Ev. Rule 505; Okla. Stat. Ann. tit. 12, § 2503(C);
Ore.Rev.Stat. § 40.230 Rule 504(3)(d)); see also 1 Kenneth S. Croun et al., McCormick on
Evidence § 102, at 462 (6th ed. 2006) (recognizing that the privilege continues to apply after
the patient’s death). The majority of courts that recognized the psychotherapist-patient
privilege prior to Jaffee also concluded that the privilege could be asserted on behalf of the
patient, while a minority of pre-Jaffe cases concluded that the patient’s death extinguished
the privilege. Compare In re August, 1993 Regular Grand Jury (Medical Corp. Subpoena II), 854
F. Supp 1392, 1397-1398 (S.D. Ind. 1994) (holding that a medical corporation could assert
the psychotherapist-patient privilege on behalf of patients in the context of a grand jury
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subpoena that sought communications between patients and psychotherapists) and
Cunningham v. Southlake Center for Mental Health, 125 F.R.D. 474 (N.D. Ind. 1989)
(recognizing that under proposed Federal Rule of Evidence 504, the personal representative
of a deceased patient may claim the privilege) with Dixon v. City of Lawton, Okl., 898 F.2d
1443, 1451 (10th Cir. 1990) (holding that the psychotherapist-patient privilege, which the
court assumed existed under federal common law without deciding that it did in fact exist
in the Tenth Circuit, does not apply after the patient’s death).
Although the federal common law of privileges is supreme, state privilege law may
be considered by a court as instructive authority in determining the proper scope of the
privilege. See, e.g., Clemmer v. Office of Chief Judge, 544 F. Supp. 2d 722, 725 (N.D. Ill. 2008)
(“Although the federal common law is supreme with respect to privileged information,
state law may be considered ‘as one of the factors in making the fact intensive
determination of whether or not the asserted privilege applies.’”) (quoting United States v.
State of Ill., 148 F.R.D. 587, 590 (N.D. Ill. 1993)). Thus, although the issue of privilege in this
federal question suit is governed by the federal common law of privileges, a “strong policy
of comity between state and federal sovereignties impels federal courts to recognize state
privileges where this can be accomplished at no substantial cost to federal substantive and
procedural policy.” Memorial Hospital For McHenry County v. Shadur, 664 F.2d 1058, 1061
(7th Cir. 1981); see also Jaffee, 518 U.S. at 12-13 (“the policy decisions of the States bear on the
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question whether federal courts should recognize a new privilege or amend the coverage
of an existing one.”). Under the Illinois psychotherapist-patient privilege, which is codified
in the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1
et seq., the privilege survives the death of the patient subject to two narrow exceptions.
One of these exceptions holds that a decedent’s privilege over their psychological records
is waived in civil proceedings where the mental or physical conditions of the patient is
introduced as an element of the plaintiff’s claim. See 740 ILCS 110/10(a)(2). The Illinois
courts have construed this exception very narrowly, and have confined it to cases in which
the plaintiff’s damages include an affirmative claim for mental loss. See Thiele v. Ortiz, 520
N.E.2d 881, 887-888 (Ill. App. Ct. 1988) (citing Webb v. Quincy City Lines, Inc., 219 N.E.2d 165
(Ill. App. Ct. 1966)). Under Illinois law, a claim for loss of society under the Illinois
Wrongful Death Act does not place the decedent’s mental condition at issue to fall within
the exception to the protections provided by the Mental Health and Developmental
Disability Confidentiality Act. See Thiele, 520 N.E.2d at 888. Thus, the policy of Illinois with
respect to the psychotherapist-patient privilege is that the privilege survives the death of
the patient and that bringing a claim under the Illinois Wrongful Death Act, as Mrs. Awalt
has done here, does not waive the decedent’s privilege to prevent his psychological records
from compelled disclosure.
In Jaffee the Supreme Court closely analogized the psychotherapist-patient privilege
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to the attorney-client privilege, and observed that both are “rooted in the imperative need
for confidence and trust.” See Jaffee, 518 U.S. at 10 (quoting Trammel v. United States, 445
U.S. 40, 51 (1980)). The Jaffee Court, throughout much of its decision, analyzed the
confidential communications protected by the psychotherapist-patient privilege in
accordance with the protections created by the attorney-client privilege. The Court
essentially held that the psychotherapist-patient privilege is identical in all material
respects to the attorney-client privilege. See Koch, 489 F.3d at 390 (recognizing that the Jaffee
Court closely analogized the attorney-client privilege to the psychotherapist-patient
privilege and held them to be substantially similar); In re Grand Jury Proceedings (Gregory
P. Violette), 183 F.3d 71, 76 (1st Cir. 1999) (“The Jaffee Court justified the
psychotherapist-patient privilege in terms parallel to those used for the attorney-client
privilege.”); see, e.g., Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal. 2003) (“In Jaffee, the
Supreme Court repeatedly analogized the psychotherapist-patient privilege to the
attorney-client privilege. There is good reason, therefore, to treat the two privileges
similarly”); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (citing Jaffee, 518
U.S. at 10) (noting that the Supreme Court in Jaffee found the attorney-client privilege “to
be analogous to the psychotherapist-patient privilege”); Vanderbilt v. Town of Chilmark, 174
F.R.D. 225, 229 (recognizing the close analogy the Jaffee Court made between the attorneyclient privilege and the psychotherapist-patient privilege). Only two years after its decision
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in Jaffee, the Supreme Court held in Swidler & Berlin v. United States, 524 U.S. 399, 410-411
(1998), that the attorney-client privilege survives the death of the party who holds the
privilege.
In light of the close connection made by the Jaffee Court between the
psychotherapist-patient privilege and the attorney-client privilege, it is reasonable to
conclude that Swidler, which holds that the attorney-client privilege survives the death of
the party who holds the privilege, likewise applies to the psychotherapist-patient privilege.
Given the federal caselaw holding that the privilege may be asserted on behalf of the
patient and that it survives the death of the privilege holder; the nature of Illinois’s
psychotherapist-patient privilege, which is instructive authority in this nondiversity case
given the strong policy in favor of state and federal comity with respect to testimonial
privileges; in addition to the Supreme Court’s treatment in Jaffee of the psychotherapistpatient privilege as materially similar to the attorney-client privilege (as well as subsequent
lower courts’ similar treatment of the psychotherapist-patient privilege as essentially
identical in procedural nature to the attorney-client privilege), which the Supreme Court
held survives the death of the privilege holder, this Court concludes that the
psychotherapist-patient privilege survives the death of the patient and may be asserted on
their behalf by a plaintiff with proper standing to assert the privilege. Accordingly Mrs.
Awalt may assert the psychotherapist-patient privilege on behalf of her deceased husband
to prevent from compelled disclosure his psychological records that are properly protected
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by the privilege. The question then becomes whether the privilege has been waived in this
case.
The Jaffee Court explicitly held that the psychotherapist-patient privilege, like all
other testimonial privileges, can be waived. See Jaffee, 518 U.S. at 15 n.14. The Supreme
Court, however, declined to explicitly set forth the manner in which the privilege would
be waived, instead leaving it to the lower courts to fashion a doctrine of waiver to be
applied to the psychotherapist-patient privilege. The Court did reject the notion that the
privilege was subject to a balancing test, an approach that had been previously taken by
some federal and state courts in evaluating the privilege, stating that “[m]aking the
promise of confidentiality contingent upon a trial judge’s later evaluation of the relative
importance of the patient’s interest in privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the privilege.” See Id. at 17. Thus, this Court is not
to balance Mr. Awalt’s interest in the privacy of his psychological records against the need
for the psychotherapist-patient communications by the Defendants. See Id. at 7 (rejecting
a “balancing component of the privilege,” and holding that a court should not deny the
protections of the privilege even if it found “in the interests of justice, [that] the evidentiary
need for the disclosure of the contents of a patient’s counseling sessions outweighs that
patient’s privacy interests.”) (internal quotations omitted). Thus, the alleged interest of
justice served by allowing the Defendants to compel disclosure of Mr. Awalt’s
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psychological records to present the theory that his death was in fact caused by suicide
must not be balanced against Mr. Awalt’s privacy interest in maintaining the
confidentiality of his psychological records that are protected by the privilege. A plaintiff
waives their right under the privilege when, by seeking damages for emotional distress,
they place their psychological state at issue in the litigation. See Doe, 456 F.3d at 718. If the
plaintiff does this, then the defendant is entitled to discover any records of the plaintiff’s
psychological state. See Id. Whether a plaintiff has placed their psychological state at issue
in the litigation by claiming damages for emotion distress is a heavily fact-intensive, caseby-case inquiry into the nature of the damages claimed and the extent to which the plaintiff
has put their psychological state at issue.
The issue of waiver of the psychotherapist-patient privilege arises frequently in civil
litigation when the plaintiff claims damages for emotion distress. Federal courts faced with
this issue have developed divergent approaches for ascertaining whether the privilege has
been waived. The so-called “narrow” approach holds that a patient only waives the
privilege by putting the substance of the advice or communication with their
psychotherapist directly at issue in the suit. See Koch, 489 F.3d at 390. Courts employing
the “narrow” approach will only find a waiver of the privilege where the emotional distress
claims are “severe,” where the plaintiff relies on communications with a therapist as part
of their case, or where the plaintiff intends to offer expert testimony on the claim of
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emotional distress. See Id.; see, e.g., John v. Napolitano, 274 F.R.D. 12, 17–19 (D. D.C. 2011);
Walton v. North Carolina Dept. of Agriculture and Consumer Services, No. 09 C 302, 2011 WL
883579, *3 (E.D. N.C. March 11, 2011); Ortiz v. Potter, No. 08 C 1326, 2010 WL 796960, *6
(E.D. Cal. March 5, 2010); Valentine v. First Advantage Saferent Inc., No. 08 C 142, 2009 WL
3841967, *1 (C.D. Cal. Sept. 18, 2009); Doe v. City of Chula Vista, 196 F.R.D. 562, 568–69 (C.D.
Cal. 1999). On the other side of the spectrum, under the so-called “broad” approach, courts
have held that a plaintiff places their mental condition at issue and waives the privilege
simply by making a claim for emotional distress damages. See Koch, 489 F.3d at 390.
Courts employing the “broad” approach will find a waiver of the privilege merely from the
plaintiff putting their emotional state as issue in the litigation. See Schoffstall v. Henderson,
223 F.3d 818, 823 (8th Cir. 2000); see, e.g., Jackson v. Chubb Corp., 193 F.R.D. 216, 225 (D. N.J.
2000); Fox v. Gates Corp, 179 F.R.D. 303, 306 (D. Colo. 1998); Sarko v. Penn–Del Directory Co.,
170 F.R.D. 127, 130 (E.D. Pa. 1997); Vann v. Lone Star Steakhouse & Saloon, Inc., 967 F. Supp.
346, 349–50 (C.D. Ill. 1997); EEOC v. Danka Indus., Inc., 990 F. Supp. 1138, 1142 (E.D. Mo.
1997). There is a final approach, the so-called “middle ground” approach—which has
become the majority view—which holds that “[w]here a plaintiff merely alleges ‘garden
variety’ emotional distress and neither alleges a separate tort for the distress, any specific
psychiatric injury or disorder, or unusually severe distress, that plaintiff has not placed
his/her mental condition at issue to justify a waiver of the psychotherapist-patient
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privilege.” See Koch, 489 F.3d at 390.
The majority view—or the “middle ground” approach—to waiver of the
psychotherapist-patient privilege 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. See, e.g., Flowers v. Owens, 274
F.R.D. 218, 223-226 (N.D. Ill. 2011) (giving a detailed account of waiver of the
psychotherapist-patient privilege, and describing the contours of the doctrine that make
the nature of the damages sought relevant to the issue of waiver). 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. See, e.g., Noe v. R.R. Donnelley & Sons, No. 10 C 2018, 2011 WL 1376968, *1 (N.D. Ill.
April 12, 2011) (collecting cases) (stating that a number of courts within the territorial
jurisdiction of the Seventh Circuit recognize that the privilege is not waived when a
plaintiff does not intend to offer evidence of consultations with a psychotherapist at trial);
Kronenberg v. Baker & McKenzie LLP, 747 F. Supp. 2d 983, 990 (N.D. Ill. 2010) (privilege is
not waived when plaintiff does not intend to introduce records or testimony of
psychotherapists in support of their claim for damages); Santos v. The Boeing Co., No. 02 C
9310, 2003 WL 23162439, *1 (N.D. Ill. Oct. 21, 2003) (the fact that a plaintiff seeks emotional
damages does not justify giving defendants access to mental health records); Hucko v. City
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of Oak Forest, 185 F.R.D. 526, 529 (N.D. Ill. 1999) (privilege is not waived where plaintiff is
not offering evidence of psychological treatment of her emotional distress 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.
Courts in this District, as well as others throughout the Country which apply the
“middle ground” approach, have held that where the plaintiff seeks ‘garden variety’
emotional damages—which is to say, damages limited to the typical negative emotional
impact on the plaintiff that obviously flow from the defendant’s alleged misconduct—the
privilege remains intact and is not waived. See, e.g., Flowers, 274 F.R.D. at 225 (“Since Jaffee,
most courts have held that claims of ‘garden variety’ emotional damage do not result in a
waiver of the psychotherapist/patient privilege.”); E.E.O.C. v. Area Erectors, Inc., 247 F.R.D.
549, 552 (N.D. Ill. 2007); Taylor v. ABT Electronics, Inc., No. 05 C 576, 2007 WL 1455842, *2
(N.D. Ill. May 14, 2007); Santelli, 188 F.R.D. at 309; see also In re Sims, 534 F.3d at 129; Koch,
489 F.3d at 390; Diehl v. Bank of America Corp., No. 09 C 1220, 2010 WL 4829970, *1–2 (M.D.
Fla. Nov. 19, 2010); Kunstler v. City of New York, No. 04 C 1145, 2006 WL 2516625, *9 (S.D.
N.Y. Aug. 29, 2006); Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 660 (D. Kan. 2004);
Vanderbilt, 174 F.R.D. at 228; Sabree v. United Brotherhood of Carpenters & Joiners of America,
20
Local No. 33, 126 F.R.D. 422, 426 (D. Mass. 1989). Under this “middle ground” approach
when a plaintiff seeks damages for emotional distress for which they later sought
psychotherapeutic treatment or otherwise affirmatively puts the privileged communication
directly at issue in the lawsuit, the privilege is waived and the defendant is entitled to
discover otherwise privileged information concerning the plaintiff’s mental health. See, e.g.,
Santelli, 188 F.R.D. at 308-309; Wynne v. Loyola Univ. of Chicago, No. 97 C 6417, 1999 WL
759401, *1 (N.D. Ill. Sept. 3, 1999); see also Schoffstall, 223 F.3d at 823; E.E.O.C. v. California
Psychiatric Transitions, 258 F.R.D. 391, 399–400 (E.D. Cal. 2009); Fritsch v. City of Chula Vista,
187 F.R.D. 614, 629 (S.D. Cal. 1999); Vanderbilt, 174 F.R.D. at 229. However, where the
plaintiff’s claim for emotional distress damages are limited to those that naturally flow
from the defendants’ alleged misconduct the privilege remains intact and can be asserted
by the plaintiff to prevent mental health records from compelled disclosure—that is, claims
for ‘garden variety’ emotional distress damages do not waive the privilege.
The rule distinguishing between ‘garden variety’ claims for emotional damages and
claims in which the plaintiff puts their psychological well-being into issue “is based upon
the obvious principle of fairness that a party cannot inject his or her psychological
treatment, condition, or symptoms into a case and expect to be able to prevent discovery
of information relevant to those issues.” Kronenberg, 747 F. Supp. 2d at 989 (quoting
Santelli, 188 F.R.D. at 309; citing In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir.
21
2000)). Mrs. Awalt has not injected Mr. Awalt’s psychological treatment, condition, or
symptoms into this case. She has not made any claims for damages for Mr. Awalt’s
psychological treatment, condition, or symptoms resulting from the alleged misconduct of
the Defendants. Furthermore, Mrs. Awalt does not intend to use Mr. Awalt’s psychological
treatment, conditions, or symptoms for any purpose in this case, including proving her
damages. Mrs. Awalt’s claims for damages are of the ‘garden variety’ nature, and she has
not put her specific psychological state at issue in this suit nor any psychological treatment
she received as a result of Mr. Awalt’s untimely death. Thus, the Court concludes that the
psychotherapist-patient privilege has not been waived with respect to Mr. Awalt’s IDOC
mental health records because Mrs. Awalt is merely alleging ‘garden variety’ emotional
damages resulting from the Defendants’ alleged misconduct. As such, Mrs. Awalt may
assert the privilege over Mr. Awalt’s mental health records maintained by the IDOC and
thereby prevent the Defendants from compelling their disclosure. The Defendants’ Motion
to Compel documents relating to the psychological treatment that Mr. Awalt received at
the IDOC is denied.
ii. Mr. Awalt’s Social Security Administration Records
The Defendants also seek disclosure of psychological evaluations of Mr. Awalt
conducted by the Social Security Administration (“SSA”) in connection with his application
for Social Security benefits. Mrs. Awalt has disclosed documents that demonstrate that Mr.
22
Awalt applied for disability benefits in 2008, 2009, and 2010 on the basis of a seizure
condition, bi-polar disorder, and manic depression. Mrs. Awalt has obtained Mr. Awalt’s
SSA records and submitted a privilege log stating that she has withheld four records on the
grounds that they are protected by the psychotherapist-patient privilege under federal
common law. The Defendants contend that the SSA documents appear to represent three
psychiatric examination by three physicians within approximately one year of Mr. Awlat’s
death. They contend that because these documents may contain information related to Mr.
Awalt’s mental state, the degree of his alleged psychological disorders, possible past
suicide attempts, and potential suicidal ideation, the records are directly relevant to their
defense of death by suicide. Defendants requested a waiver from Mrs. Awalt to procure
Mr. Awalt’s SSA records. She refused to sign the waiver, insisting on procuring the
documents herself. The Defendants Motion to Compel asserts what they view as their right
to discover the records without having to filter them through Mrs. Awalt’s counsel. Since
this Motion to Compel has been pending, Mrs. Awalt undertook to obtain all of the records
that the Defendants have requested from the SSA. The parties agreed that the Defendants
would not persist to compel a signed waiver if Mrs. Awalt could demonstrate that she
produced all documents provided to her by the SSA in response to her subpoena, such as
by providing a statement of the number of pages disclosed or a billing record showing Mrs.
Awalt’s payment for copies. Mrs. Awalt provided a privilege log for documents retained,
23
but did not provide documentation from the SSA indicating how many pages she received
in response to her subpoena. Consequently, the Defendants further request that Mrs.
Awalt be compelled not only to disclose the SSA records but also to sign a release for Mr.
Awalt’s SSA medical records and medical providers identified therein so that they can
pursue avenues of follow-up from the records and verify that Mrs. Awalt’s disclosure is
complete.
Again, Mrs. Awalt has provided the Court with the relevant documents for an ex
parte in camera review. Psychological records created in March 2010 reflect that Mr. Awalt
was not suicidal and that he had never been formally treated for bipolar disorder. Records
from August 2009 reflect Mr. Awalt’s history of seizures, substance abuse, and affective
disorder in remission. A July 2009 report reflects that Mr. Awalt reported that he once
attempted suicide in the late 1990s by drinking beer and then blowing the pilot lights out
on his stove. At that time, Mr. Awalt explained what had happened to the staff at Provena
St. Joseph’s Hospital, where he was taken, as a big accident. The July 2009 report also
reflects that Mr. Awalt had been suffering from seizures for two years and that he had seen
doctors at the IDOC who had treated him for bipolar disorder, and that he was diagnosed
with a substance abuse problem, depression, and a seizure disorder.
Mrs. Awalt argues that one mention of an alleged suicide attempt that purportedly
took place fifteen years before Mr. Awalt was found dead in his cell at the Grundy County
24
Jail is of little or no probative value in this case. This is especially true in light of the fact
that the record assembled so far as well as the privileged documents are lacking in any
evidence of suicidal ideation on Mr. Awalt’s part since at least 1995. The fact that Mr.
Awalt may have been living with mental disorders for a long period of time without any
issues is far less relevant to the instant case than if he had attempted suicide a month or two
before his death—something that the record and the evidence does not reflect he did.
Aside from the limited probative value of this information, Mrs. Awalt contends that
the SSA files are protected by the psychotherapist-patient privilege, and that the privilege
has not been waived. For the same reasons discussed above, neither Mrs. Awalt’s claim of
damages nor Mr. Awalt’s untimely death waive the privilege. Mrs. Awalt is merely
seeking ‘garden variety’ damages in connection with the death of her husband, and she has
not put his or her specific mental state at issue in the case with respect to the SSA
documents, nor does she intend to use those documents to prove her damages. See, e.g.,
Flowers, 274 F.R.D. at 225; Santelli, 188 F.R.D. at 309; Noe, 2011 WL 1376968 at *1. The
Defendants advance another waiver argument with respect to the SSA files by claiming
that Mr. Awalt waived the psychotherapist-patient privilege by applying to the SSA for
Social Security benefits in the first place.
A person who discloses privileged information to a third-party waives the privilege
in the absence of an agreement to keep the information confidential. See Dellwood Farms,
25
Inc. v. Cargill, 128 F.3d 1122, 1127. “In the case of selective disclosure, the courts feel,
reasonably enough, that the possessor of the privileged information should have been more
careful, as by obtaining an agreement by the person to whom they made the disclosure not
to spread it further.” Id. Applying this rule, the court in Lawrence E. Jaffe Pension Plan v.
Household, Intern., Inc., 224 F.R.D. 412 (N.D. Ill. 2006), held that the disclosure of
information to the Securities and Exchange Commission pursuant to a confidentiality
agreement did not waive applicable privileges.
Mr. Awalt’s disclosure of information to the SSA took place with all of the
protections of the Privacy Act of 1974, 5 U.S.C. § 551 et seq., in place. The Privacy Act
guarantees that information disclosed in support of an application to the SSA for benefits
will never be disclosed beyond the agency without the express consent of the applicant.
See 5 U.S.C. § 552a(b). Thus, the Privacy Act is just the sort of “agreement. . .not to spread
[privileged information] further” that the Seventh Circuit was describing in Dellwood Farms.
Therefore, Mr. Awalt’s application for benefits did not waive the psychotherapist-patient
privilege that protects psychiatric records that are a part of Mr. Awalt’s agency file because
the SSA records were provided to the agency by Mr. Awalt against the backdrop of the
protections provided by the Privacy Act of 1974. Because the SSA documents have little
to no probative value to this case, and because they are protected by the psychotherapistpatient privilege which has not been waived by Mr. Awalt’s request for benefits to the SSA,
26
the Defendants’ Motion to Compel production of the SSA documents is accordingly denied.
iii. Mr. Awalt’s Provena St. Joseph’s Hospital Mental Facilities and Fort Logan
Mental Hospital Records
Finally with respect to Mr. Awalt’s mental health records the Defendants seek
compelled disclosure of records that they allege are in the possession of Provena St.
Joseph’s Hospital Mental Facilities and the Fort Logan Mental Hospital in Colorado. The
Defendants are in the possession of a handwritten document by Mr. Awalt submitted to
the SSA, which bears his signature as well as the signature of Mrs. Awalt. Mrs. Awalt
disclosed this document to the Defendants pursuant to their discovery requests. The
Defendants allege that the document states that Mr. Awalt previously attempted suicide,
and that he sought mental health treatment and submitted “records from S. Joes Mental
Facilities for attempting suicide” and “Ft. Logan Mental Hospital-Colorado as a teenager
for uncontrollable behavior.”
Based on Mrs. Awalt’s disclosure of this record the
Defendants have requested waivers so that they may obtain records from these entities.
Mrs. Awalt denied that request, consistent with her denial of requests for HIPPA waivers
for any medical records, pending resolution of the instant Motion. The Defendants contend
that from an examination of the handwritten note and Mrs. Awalt privilege log it appears
that Mr. Awalt began suffering from mental health conditions within four years of his
death, although he was not regularly medicated. Alternatively, the Defendants argue that
27
even if Mr. Awalt’s alleged mental illnesses had been a problem with which he struggled
throughout his entire life that does not preclude the possibility that those conditions led
him on a path that culminated in suicide years later.
Mrs. Awalt contends that these as-of-yet unidentified set of documents that may or
may not be in dispute are both irrelevant to the instant suit and are protected by the
psychotherapist-patient privilege. Mrs. Awalt claims that she has no idea whether this
hypothetical set of documents exists and that she has not had the opportunity to obtain
these documents for the Court’s ex parte in camera review. The reason for this lack of clarity
is that the Defendants delayed requesting the documents until after the parties appeared
before this Court on June 18, 2012, whereafter the Defendants asked for the first time for
psychological records that may be in the possession of Provena St. Joseph’s Hospital or the
Fort Logan Mental Hospital in Colorado pertaining to treatment received by Mr. Awalt
between 1995 and 1997. This time frame is referenced in the handwritten release that Mr.
Awalt provided to the SSA, in which he mentioned the mid-1990s suicide attempt and gave
the SSA permission to explore any documents kept by these two institutions. No records
from either institution are among the files that were produced to Mrs. Awalt by the SSA
pursuant to her subpoena for Mr. Awalt’s agency file and therefore the Court is not in the
possession of these potential records either.
As the evidence provided by Mrs. Awalt demonstrates, the record assembled so far
28
has yielded zero evidence that Mr. Awalt had suicidal tendencies at all in the fifteen years
preceding his death at the Grundy County Jail. Indeed the record and the evidence shows
that in evaluations conducted by both the IDOC and the SSA over a period of years Mr.
Awalt was repeatedly found to pose no threat of suicide. Fifteen-year-old records of Mr.
Awalt’s psychological treatment have little, if any, probative value in this case. No
requested record purports to establish that Mr. Awalt was suicidal right before his
untimely death. Furthermore, any documents, if they exist at all, would be covered by the
psychotherapist-patient privilege, which has not been waived here. To repeat, Mrs. Awalt
has not put her psychological state or her deceased husband’s at issue in this suit, and she
is seeking only ‘garden variety’ emotion damages and therefore the privilege is not waived
by her prayer for relief. See, e.g., Flowers, 274 F.R.D. at 225; Santelli, 188 F.R.D. at 309. Mrs.
Awalt has no plans to rely on records from Provena St. Joseph’s Hospital Mental Facilities
and Fort Logan Mental Hospital in proving her case. See, e.g., Noe, 2011 WL 1376968 at *1.
Thus, the Defendants’ Motion to Compel Mr. Awalt’s mental health records kept by
Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital is also
denied.
iv. Mrs. Awalt’s Guardian Angel Community Services Records
The Defendants next contend that they are entitled to signed waivers for records
relating to Mrs. Awalt’s alleged domestic abuse treatment received at Guardian Angel
29
Community Services, a counseling center. The Defendants contend that Mr. Awalt was in
the Grundy County Jail in the days preceding his death as a result of a domestic
disturbance with Mrs. Awalt that occurred on September 7, 2010. Following the incident
Mrs. Awalt requested an order of protection wherein she stated that Mr. Awalt had been
abusing her for a long period of time, that she was afraid for her life, that she was moving
to a new house, and that she was shortly filing for divorce from Mr. Awalt. The
Defendants claim that Mrs. Awalt has put the good character of her husband into issue by
claiming damages for loss of consortium, companionship, comfort, guidance, protection,
counsel, advice, and extreme emotional distress, and therefore that they are entitled to
paint a picture of her husband that differs from the one that Mrs. Awalt attempts to draw,
or at least to undertake an investigation into the nature of the relationship between the
Awalts.
The Defendants principally rely on Cobige v. City of Chicago, Ill., 651 F.3d 780 (7th Cir.
2011), to support their argument that Mrs. Awalt cannot simultaneously allege that Mr.
Awalt was a source of support, advice, and companionship while also attempting to
exclude from evidence negative attributes of his character that bear on those same issues.
The Defendants’ reliance on Cobige is misplaced. The court in Cobige was not faced with the
question of whether the negative character evidence at issue was protected by any of the
testimonial privileges that would protect from disclosure otherwise relevant character
30
evidence. Cobige holds that under Illinois law, which makes a surviving relatives’
emotional loss and familial ties relevant to the issue of damages, it is a reversible error to
exclude negative evidence of a decedent’s character proffered to contradict a favorable
portrait of a decedent’s character under Federal Rule of Evidence 403. See Cobige, 651 F.3d
at 785 (citing Pleasance v. Chicago, 920 N.E.2d 572, 578 (Ill. App. Ct. 2009)). Thus, the issue
of privilege had no bearing on the decision in Cobige. That is not the case here, where the
documents at issue may be protected by the psychotherapist-patient privilege.
Mrs. Awalt contends that the documents the Defendants seek only concern
counseling that she received after her minor daughter became the victim of a sexual assault
and do not include any records relating to counseling for domestic abuse. Mrs. Awalt
provided the documents to this Court for its ex parte in camera review. Guardian Angel is
not in the possession of any documents related to domestic abuse counseling of Mrs. Awalt
because Mrs. Awalt never sought any domestic abuse counseling there. The Guardian
Angel files concern counseling regarding the rape of Mrs. Awalt’s minor daughter. The
Defendants argue that because such traumatic incidents often have a significant impact on
every member of the family and every relationship therein, the files may contain statements
about the effect that the event had on Mr. Awalt personally, his troubled relationship with
his wife, or the family unit. The Defendants admit that they can only speculate about
whether the files contain information that is relevant to this suit.
31
There is no basis upon which to argue that records of rape-crisis counseling that took
place in response to an unrelated crime committed against Mrs. Awalt’s minor daughter
are probative of any fact at issue in this suit. Even assuming some hypothetical relevance,
which this Court doubts exists from its ex parte in camera review, the documents are
protected by the federal psychotherapist-patient privilege from compelled disclosure. Mrs.
Awalt has not put her counseling or mental state into issue with respect to the case, except
to the extent that she claims ‘garden variety’ emotional damages resulting from the
Defendants’ alleged misconduct—the sort of damages that are the natural consequence of
the alleged misconduct and not specific, concrete evidence of psychological distress or
counseling for such distress. See, e.g., Flowers, 274 F.R.D. at 225; Santelli, 188 F.R.D. at 309.
Such a claim for ‘garden variety’ emotional damages is not sufficient to find a waiver of the
psychotherapist-patient privilege. See Id. Furthermore, these records are not “germane to
the plaintiff’s lawsuit,” Doe, 456 F.3d at 718, another requirement to finding waiver of the
privilege, because Mrs. Awalt has not made any claim for damages based on anything even
remotely related to the sexual assault of her daughter and she will not be relying on
counseling documents related to that assault to prove liability or her damages in this case.
Furthermore, even if the documents were of some relevance, and assuming that the
federal common law privilege did not apply, Illinois law protects these documents from
disclosure. Illinois statutory law “protect[s] victims of rape from public disclosure of
32
statements they make in confidence to counselors or organizations established to help
them.” 735 ILCS 5/8-802.1. This state-law prohibition on disclosure is absolute and cannot
be waived through litigation conduct. See Schabell v. Nozawa-Joffe, No. 08 C 50018, 2010 WL
1704471, *1-*2 (N.D. Ill. April 278, 2010); People v. Foggy, 521 N.E.2d 86, 91 (Ill. 1998)
(“Moreover, as the appellate court noted in this case, the legislature originally allowed only
a qualified privilege for communications between sexual assault counselors and victims but
later decided to strengthen the privilege and make it absolute.”). Therefore, Mrs. Awalt
may assert the federal common law psychotherapist-patient privilege, as well as the Illinois
state statutory law, to protect from compelled disclosure her confidential communications
with counselors at Guardian Angel. The Defendants’ Motion to Compel waivers for
records of Mrs. Awalt’s treatment at Guardian Angel Community Services is therefore also
denied.
v. Mrs. Awalt’s Other Domestic Violence Records
The Defendants argue that they are entitled to discover records of Mrs. Awalt’s
treatment for domestic abuse by Mr. Awalt. In the petition for an order of protection that
Mrs. Awalt filed against Mr. Awalt she stated that she went to the hospital on September
7, 2010 to get medical attention after the domestic incidence with Mr. Awalt transpired.
Mrs. Awalt’s counsel has stated that Mrs. Awalt did not seek treatment from any
psychotherapist related to that incident, but she has nevertheless refused to sign HIPPA
33
waivers allowing the Defendants to investigate her claims of domestic violence on the basis
of the psychotherapist-patient privilege.
Mrs. Awalt insisted on obtaining her own records from Morris Hospital, which she
disclosed to the Defendants on June 29, 2012, but which do not contain any records of
treatment on September 7, 2010. The Defendants thus issued an interrogatory to Mrs.
Awalt requesting the name of the hospital where she sought treatment for the domestic
abuse. Once the Defendants become aware of where Mrs. Awalt sought treatment they
will request records from that entity. Therefore, the Defendants request that this Court
order Mrs. Awalt to sign a medical release for any treaters from whom she sought
treatment related to domestic abuse during her relationship with Mr. Awalt.
Unlike the psychotherapist-patient privilege the federal common law of privileges
does not recognize a more general physician-patient privilege. See Whalen v. Roe, 429 U.S.
589, 602 n.28 (1977) (“The physician-patient evidentiary privilege is unknown to the
common law. In States where it exists by legislative enactment, it is subject to many
exceptions and to waiver for many reasons.”); United States v. Bek, 493 F.3d 790, 802 (7th
Cir. 2007) (“But we can find no circuit authority in support of a physician-patient privilege,
even after Jaffee.”); Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004)
(“the evidentiary privileges that are applicable to federal-question suits are given not by
state law but by federal law, Fed. R. Evid. 501, which does not recognize a
34
physician-patient (or hospital-patient) privilege.”).
The
psychotherapist-patient
privilege
applies
to
licensed
psychiatrists,
psychotherapists, social workers, or any other kind of counselor to whom the privilege
might attach. See United States v. Schwensow, 151 F.3d 650, 654 (7th Cir. 1998). Furthermore,
for the privilege to apply the statements must have been made for the purpose of obtaining
psychiatric treatment. See Id. Here the Defendants simply seek disclosure of medical
records pertaining to Mrs. Awalt’s treatment for physical abuse for which she admits she
did not receive psychiatric treatment. These medical records are relevant to Mrs. Awalt’s
claim of damages for loss of consortium and severe emotional distress, and should be
admitted into evidence so that the Defendants have an opportunity to paint a portrait of
Mr. Awalt that differs from the one Mrs. Awalt wishes to paint. See Cobige, 651 F.3d at 785.
In Illinois a surviving relatives’ emotional loss and familial ties are relevant to the issue of
damages and it is a reversible error to exclude negative evidence of a decedent’s character
offered into evidence to contradict a more favorable portrait of a decedent’s character
under Federal Rule of Evidence 403. See Id. Once the Defendants ascertain where Mrs.
Awalt received treatment from for domestic abuse by Mr. Awalt she is ordered to sign a
medical release for any treaters from whom she sought treatment from for such abuse by
Mr. Awalt.
35
III. Conclusion
For the foregoing reasons, the Court finds that the preponderance of materials that
the Defendants seek to discovery are protected from compelled disclosure by the
psychotherapist-patient privilege, with the exception of medical records regarding Mrs.
Awalt’s treatment for domestic abuse. Therefore, the Defendants’ Motion to Compel is
denied with respect to Mr. Awalt’s mental health care records kept by the IDOC, the SSA,
and Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital. The
Motion is also denied with respect to Mrs. Awalt’s counseling records from Guardian
Angel. The Defendants’ Motion to Compel is granted with respect to medical records
pertaining to Mrs. Atwalt’s treatment for domestic abuse by Mr. Awalt. Mrs. Awalt is
ordered to sign a medical waiver for any records relating to her treatment for domestic
abuse during her relationship with Mr. Awalt.
________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: October 29, 2012
36
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