Taylor v. City Of Chicago et al

Filing 312

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/28/16. Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL TAYLOR,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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14 C 737
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Daniel Taylor spent more than 20 years in prison for two murders that he did
not commit. He has now sued the City of Chicago and various individual police
officers alleging they coerced a false confession from him and hid exculpatory
evidence that would have proven his innocence. Currently before the Court is
Taylor’s objection [305] to the Magistrate Judge’s order finding that Taylor waived
the psychotherapist-patient privilege as to records of treatment he received before
he was arrested. For the reasons provided below, the Court overrules Taylor’s
objection.
Background
In his complaint, Taylor is seeking to recover for the “emotional pain and
suffering caused by losing 20 years in the prime of his life.” Compl. ¶ 63, ECF No. 1.
“He missed out on the ability to share holidays, births, funerals and other life
events with loved ones, the opportunity to fall in love and marry and to pursue a
career, and the fundamental freedom to live one’s life as an autonomous human

being.” Id. As a result, Taylor “suffered tremendous damage, including physical
sickness and injury and emotional damages.” Id. ¶ 65.
As part of discovery into Taylor’s allegations of emotional injuries,
Defendants subpoenaed records of Taylor’s treatment. The particular records at
issue here are from his time at Yellowstone Boys & Girls Ranch. Taylor was there
in 1992, prior to his arrest, and received mental health treatment. In response to
Defendants’ request for those documents, Taylor argued that the records were
protected by the psychotherapist-patient privilege.
Defendants filed a motion to compel the records. See Mot. Compel, ECF No.
264. The Magistrate Judge held that Taylor had waived the privilege by asserting
the type of emotional damages that he did. See Mem. Op. & Order at 11–12, 20–21,
ECF No. 298. In order to determine whether the Yellowstone records should be
turned over, the Magistrate Judge ordered an in camera review to determine their
relevancy to Taylor’s damages. See id. at 21–22. Taylor objects to the finding of
waiver. See Pl.’s Obj., ECF No. 305.
Analysis
A.

The Psychotherapist-Patient Privilege and Waiver
Federal Rule of Evidence 501 authorizes federal courts to define the

boundaries of privilege “in light of reason and experience.” In 1996, the Supreme
Court accepted that invitation and established the psychotherapist-patient privilege
under federal common law. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996). In doing
so,

the

Court

recognized

the

importance

of

confidentiality

for

effective

psychotherapy. See id. at 10. Importantly for this case, the Court noted in a footnote
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that, like other testimonial privileges, the psychotherapist-patient privilege is
subject to waiver. See id. at 15 n.14.
In the 20 years since the Supreme Court’s opinion in Jaffee, federal courts
have tried mightily to define whether and to what extent a plaintiff waives the
psychotherapist-patient privilege when he files a civil lawsuit seeking damages for
emotional distress. The decisions addressing this issue have converged around three
approaches: the narrow approach, the broad approach, and the garden-variety
approach. Each approach attempts to strike the appropriate balance between the
privacy rights of the plaintiff, on the one hand, and the need for the defendant to
obtain information to contest the plaintiff’s claims, on the other.
Under the narrow approach, a plaintiff waives the privilege only when she
affirmatively relies on her communications with the psychotherapist or calls the
therapist as a witness. See Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal.
2003). Analogizing to the attorney-client privilege, courts that have adopted this
approach reason that the privilege is not waived merely by putting at issue the
underlying substance of communications with an attorney. Instead, the attorneyclient privilege is waived, for example, when the party relies on the advice of
counsel as a defense. See id. at 367. In this way, the narrow approach would find
waiver only when the plaintiff plans on using her communications with her
psychotherapist to further her claim. See id; see also Hucko v. City of Oak Forest,
185 F.R.D. 526, 529–30 (N.D. Ill. 1999); Vanderbilt v. Town of Chilmark, 174 F.R.D.
225, 229–30 (D. Mass. 1997).

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The broad approach finds waiver of the psychotherapist-patient privilege any
time a plaintiff puts his emotional state at issue. See Doe v. City of Chula Vista, 196
F.R.D. 562, 569 (S.D. Cal. 1999) (“But to [e]nsure a fair trial, particularly on the
element of causation, the court concludes that defendants should have access to
evidence that Doe’s emotional state was caused by something else. Defendants must
be free to test the truth of Doe’s contention that she is emotionally upset because of
the defendants’ conduct.”).
The third and most prevalent approach is the so-called garden-variety
approach. Under this regime, a plaintiff waives the psychotherapist-patient
privilege only if she is seeking anything more than mere “garden-variety” emotional
damages. See Flowers v. Owens, 274 F.R.D. 218, 224–25 (N.D. Ill. 2011). What
exactly constitutes garden-variety damages is not easy to pin down. The most
straightforward definition is: “the distress that any healthy, well-adjusted person
would likely feel as a result of being so victimized.” Kunstler v. City of N.Y., 2006
WL 2516625, at *9 (S.D.N.Y. Aug. 29, 2006); see also Flowers, 274 F.R.D. at 225–26
(“the generalized insult, hurt feelings and lingering resentment which anyone could
be expected to feel given the defendant’s conduct; the normal distress experienced
as a result of the [claimed injury]; the negative emotions that [plaintiff] experienced
essentially as the intrinsic result of the defendant’s alleged conduct, but not the
resulting symptoms or conditions that she might have suffered; the generalized
insult, hurt feelings, and lingering resentment that does not involve a significant
disruption of the plaintiff’s work life and rarely involves more than a temporary

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disruption of the claimant’s personal life” (citations omitted)). Thus, under this
approach, waiver depends on how a plaintiff characterizes her emotional harm—the
more extensive and specific the description of the harm (which, presumably, would
persuade a jury to award more in damages), the more likely the waiver.
The Seventh Circuit has, in fact, weighed in on the question. In Doe v.
Oberweis Dairy, the court held, “If a plaintiff by seeking damages for emotional
distress places his or her psychological state in issue, the defendant is entitled to
discover any records of that state.” 456 F.3d 704 (7th Cir. 2006) (Posner, J.). In
Oberweis, the plaintiff sued her former employer under Title VII and sought
damages for emotional distress. The court found this sufficient to waive the
psychotherapist-patient privilege. See id. Although in not-so-many words, the court
in Oberweis employed the broad approach. See Beltran v. Cty. of Santa Clara, No. C
03-3767, 2009 WL 248207, at *2 (N.D. Cal. Jan. 30, 2009) (categorizing Oberweis as
adopting the broad approach)
Despite the holding in Oberweis, courts in this district have been hesitant to
apply the broad approach. Instead, in various decisions that cite Oberweis, courts
have gone on to apply either the garden-variety approach or the narrow approach.
See Caine v. Burge, No. 11 C 8996, 2012 WL 6720597, at *2 (N.D. Ill. Dec. 27, 2012)
(“Some courts have interpreted the Seventh Circuit’s single post-Jaffee opinion on
the subject as falling into the ‘broad’ category, but the subject was addressed only
briefly and did not expressly hinge the privilege waiver on the presence of an
emotional distress claim.”); Awalt v. Marketti, 287 F.R.D. 409, 416–19 (N.D. Ill.

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2012); Noe v. R.R. Donnelley & Sons, No. 10 C 2018, 2011 WL 1376968, at *1 (N.D.
Ill. Apr. 12, 2011). The most in-depth analysis of Oberweis comes from Flowers:
It is not clear whether this [i.e., the broad approach] is the Seventh
Circuit’s position. Beltran v. County of Santa Clara, [No. C 03-3767,
2009 WL 248207, at *2 (N.D. Cal. Jan. 30, 2009)], reads Oberweis
Dairy as reflecting that it is, and the D.C. Circuit’s opinion in Koch v.
Cox, 489 F.3d 384, 390 (D.C. Cir. 2007) at least hints that Oberweis
Dairy can be interpreted as holding that a waiver results whenever a
claim for emotional distress is made—although it did not have to
decide what was meant. Prior to Oberweis Dairy, even Judge Kennelly
in Santelli expressed the view that “[t]here is some support for this
approach in this Circuit.” 188 F.R.D. at 309. And, the phrasing in
Oberweis Dairy arguably supports a narrow view of the privilege even
where the emotional damages are claimed to be “garden variety.”
Flowers, 274 F.R.D. at 224.
Despite

its

terseness,

however,

the

rule

espoused

in

Oberweis

is

straightforward and unequivocal: “If a plaintiff by seeking damages for emotional
distress places his or her psychological state in issue, the defendant is entitled to
discover any records of that state.” See Oberweis, 456 F.3d at 718. The court in
Flowers framed the question thus: “After Jaffee, the courts have been unanimous in
holding that a party may surrender the psychotherapist-patient privilege by
affirmatively placing his or her psychological state at issue in the suit. . . . The
difficulty lies in determining when that occurs.” Flowers, 274 F.R.D. at 223. But
Oberweis tells us precisely when that occurs; a plaintiff places his or her
psychological state in issue “by seeking damages for emotional distress.”
Moreover, when the Seventh Circuit decided Oberweis in 2006, it was wellaware of the three different approaches adopted by various courts. The opinion even
cites to a section of a law review article in which the author explains the three

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possible approaches. See Beth S. Frank, Note, Protecting the Privacy of Sexual
Harassment Plaintiffs: The Psychotherapist-Patient Privilege and Recovery of
Emotional Distress Damages Under the Civil Rights Act of 1991, 79 Wash. U. L.Q.
639, 651–57 (2001). And, in the end, the Oberweis court adopted the words
reflecting the broad approach and cited an Eighth Circuit case, Schoffstall v.
Henderson, 223 F.3d 818 (8th Cir. 2000), that many courts agree also applied the
broad approach. See Awalt, 287 F.R.D. at 417; St. John v. Napolitano, 274 F.R.D.
12, 18 (D.D.C. 2011). Thus, the Court finds that Oberweis is binding precedent on
this issue and will apply the broad approach. 1
The Court also agrees with the misgivings raised by the Magistrate Judge
regarding the garden-variety approach. See Mem. Op. & Order at 14–16. First, it is
difficult to define precisely what falls within the basket of garden-variety emotional
distress. For example, must a plaintiff limit her testimony at trial to a plain and
simple statement that she “suffered emotional distress”? See, e.g., Santelli v. ElctroMotive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (limiting plaintiff’s testimony to “[b]are
testimony of humiliation or disgust”). Or can she testify that she suffered “severe”
or “horrible” emotional distress? See, e.g., Langenfeld v. Armstrong World Indus.,

At least one commentator has suggested that the result in Oberweis may not be
inconsistent with the garden-variety approach. The commentator argues that, because the
plaintiff in Oberweis also had a claim for intentional infliction of emotional distress, the
emotional damages she was claiming were beyond the garden variety. See Helen A.
Anderson, The Psychotherapist Privilege: Privacy and “Garden Variety” Emotional Distress,
21 Geo. Mason L. Rev. 117, 131–32 (2013). But the plaintiff in Oberweis had voluntarily
dismissed her claims for intentional and negligent infliction of emotional distress prior to
the district court ruling on the privilege issue. See Doe v. Oberweis Dairy, No. 03 C 4774,
2004 WL 1146712, at * 2 (N.D. Ill. May 21, 2004).
1

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Inc., 299 F.R.D. 547, 553 (S.D. Ohio 2014) (holding that the plaintiff’s testimony
that the defendant’s conduct caused her to feel stressed and lose sleep were
sufficiently severe to fall outside the category of garden-variety damages). Can she
testify that the defendant’s actions caused her to feel “sad” or “miserable” or
“bummed out”? How about “depressed” (which often is used in common parlance to
mean feeling “sad,” “miserable,” or “downhearted”? Compare Jacobs v. Conn. Cmty.
Tech. Colls., 258 F.R.D. 192, 196–97 (D. Conn. 2009) (holding that the plaintiff’s
depression made his emotional damages more than garden variety), with Flowers,
274 F.R.D. at 227 (noting that the plaintiff could abide by Santelli’s formulation of
garden-variety damages by testifying that he felt depressed, anxious, and dejected).
Aside from the definitional ambiguity, the garden-variety approach could also
raise practical difficulties at trial. For example, if the plaintiff chooses to testify at
trial only that he “suffered emotional distress,” does the defendant have to take that
answer (which hardly seems fair), or can the defendant cross-examine the plaintiff
and ask in what way the plaintiff believes he was emotionally harmed? And, if the
plaintiff answers that question with specific examples (e.g., he suffers from
depression, loss of appetite, and isolation), has he then waived the privilege
(thereby providing the defendant with an opportunity to obtain discovery from his
psychotherapist before the trial can proceed), or has he not, because the defendant
has opened the door? At least one commentator has noted the difficulties that the
garden-variety approach would produce at trial. See Helen A. Anderson, The

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Psychotherapist Privilege: Privacy and “Garden Variety” Emotional Distress, 21 Geo.
Mason L. Rev. 117, 143 (2013).
For all of these reasons, the Court agrees with the Magistrate Judge’s
analysis and adopts broad approach articulated by the court in Oberweis. But, this
does not mean that a request by the plaintiff for emotional distress damages
exposes every communication between the plaintiff and his psychotherapist to
discovery. After all, any information requested during discovery must be “relevant
to any party’s claim or defense and proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). And a court still has the discretion to limit the use of any relevant
communication at trial “to the extent that the plaintiff’s interest in privacy
outweighs the probative value of the information contained in the records.”
Oberweis, 456 F.3d at 718; see Fed. R. Evid. 403.
B.

Taylor’s Records
Applying the law of waiver of privilege to this case, the Court agrees with the

Magistrate Judge that Taylor has waived the psychotherapist-patient privilege over
the Yellowstone records. The Court also agrees with the Magistrate Judge’s
proposal that she review in camera any of the documents in question to determine
their relevancy. 2

For the sake of completeness, the Court also agrees with the Magistrate Judge that
Taylor has waived the privilege even under the garden-variety approach for the reasons
stated in the Magistrate Judge’s order.
2

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Conclusion
For the reasons stated above, the Court overrules Taylor’s objection [305] to
the Magistrate Judge’s ruling on Defendants’ motion to compel [264]. The parties
are ordered to proceed with the hearing before the Magistrate Judge on relevancy.

IT IS SO ORDERED.

ENTERED 9/28/16

__________________________________
John Z. Lee
United States District Judge

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