Marcial v. Rush University Medical Center et al

Filing 101

MEMORANDUM Opinion and Order: Plaintiff's Motion for Leave to File Documents Under Seal 93 is granted in part and denied in part. - Signed by the Honorable Susan E. Cox on 8/30/2018. [For further details see order] Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
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)
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Plaintiff,
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v.
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RUSH UNIVERSITY MEDICAL
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CENTER; DR. MICHAEL KREMER; in )
his individual capacity, RAY NARBONE; )
in his individual capacity; and JILL
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WIMBERLEY, in her individual capacity, )
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Defendants.
)
MARICEL MARCIAL,

Case No: 16-cv-6109
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
For the reasons discussed below, Plaintiff’s Motion for Leave to File Documents Under
Seal [93] is granted in part and denied in part.
BACKGROUND
Plaintiff Maricel Marcial (“Plaintiff”) is a 44-year-old Asian woman of Filipina descent. 1
(Dkt. 51 at ¶ 9.) In 2012, Plaintiff, who had previously worked for fifteen years as a registered
nurse, enrolled in the Certified Registered Nurse Anesthetist (“CRNA”) program at the Rush
University Medical Center (“Rush”) College of Nursing. (Id. at ¶¶ 10-11.) The CRNA program
consists of a didactic program and a fifteen-month clinical course of study. (Id. at ¶¶ 12-13.)
Plaintiff completed the didactic program with a 3.6 grade point average (on a 4.0 scale); Plaintiff
did not experience any issues during her first six weeks of the clinical program. (Id. at ¶¶ 12,
17.) In June 2013, Plaintiff began being supervised by Defendant Jill Wimberly (“Wimberly”).

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For a more complete summary of the allegations in Plaintiff’s complaint, refer to this Court’s Memorandum
Opinion and Order addressing Defendants’ Motions to Dismiss. [Dkt. 49] Although the Plaintiff subsequently filed
an amended complaint to address some of the deficiencies identified by the Court in its previous opinion, the
narrative contour of Plaintiff’s allegations remains the same.
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(Id. at ¶ 18.) The main thrust of Plaintiff’s allegations concern Wimberley engaging in a
campaign of misconduct and misrepresentation to humiliate and discredit Plaintiff. (Id. at ¶¶ 1923.) Plaintiff further alleges that administrators in the CRNA program (including Defendants
Michael Kremer and Raymond Narbone) failed to properly handle Wimberley’s harassment. (Id.
at ¶¶ 25-58.) Rush eventually dismissed Plaintiff from the CRNA program, after she took leaves
of absence, in part due to the stress that her treatment at Rush caused her. (Id. at ¶ 55.)
The Plaintiff filed the instant suit on June 10, 2016; the operative complaint brings the
following claims: 1) race discrimination under Title VII against Rush (Count I); 2) national
origin discrimination under Title VII against Rush (Count II); 3) age discrimination under the
ADEA against Rush (Count III); 4) retaliation under Title VII against Rush (Count IV); 5)
retaliation under the ADEA against Rush (Count V); 6) intentional race and national origin
discrimination under Title VI against Rush (Count VI); 7) retaliation under Title VI against Rush
(Count VII); 8) breach of contract against Rush (Count VIII); 9) tortious interference with
contract against Kremer, Narbone, and Wimberly (collectively, “the Individual Defendants”)
(Count IX); 2 10) tortious interference with prospective economic advantage against the
Individual Defendants (Count X). (Dkt. 51.) Each of Plaintiff’s claims alleges that she suffered
the following damages: “ill health, sustained physical injury, pain, suffering, humiliation, loss of
income, monetary loss, reputational loss, and destruction of opportunities for advancement in the
nursing profession.” (Id. at ¶¶ 67, 75, 83, 95, 107, 116, 128, 143, 154, 164.)
On April 3, 2018, Plaintiff disclosed Steven R. Farmilant, Psy. D, as her expert witness.
(Dkt. 80-1.) According to Dr. Farmilant, he was asked to assess whether the perceived unfair
treatment against Plaintiff “would reasonably be expected to impair one’s work performance,
and to assess Ms. Marcial to determine if she meets the diagnostic criteria for any stress disorder
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The counts are mislabeled in Plaintiff’s First Amended Complaint; there are two claims listed as Count VIII.
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that might have resulted from this treatment.” (Dkt. 80-1.) As required by the Federal Rules of
Civil Procedure, Dr. Farmilant disclosed the documents he had reviewed to reach the conclusions
in his expert report. See Fed. R. Civ. P. 26(a)(2)(B).
Due to the nature of Dr. Farmilant’s report, many of these documents included therapy
records for Plaintiff and other sensitive materials. As such, Plaintiff filed the instant motion for
leave to file those documents under seal; Defendants challenged that motion. (Dkt. 93.) In her
memorandum in support of her motion, Plaintiff indicated that there was “no action needed” on
several documents, which the Court reads to mean that Plaintiff is no longer seeking to seal those
documents. (Dkt. 97, Ex. A.) For other documents, Plaintiff adjusted her request to seal to a
requested to file redacted versions of those documents. (Id.) Defendants did not oppose such
redactions, provided they were to protect non-party personnel or contact information, or required
by the Family Educational Rights and Privacy Act (“FERPA”). (Dkt. 98 at 4.) As such, there
remains only a narrow universe of documents or redactions over which the parties continue to
argue.

From the Court’s review, it includes the following documents: 1) redaction of

“confidential medical information not at issue and information protected by the psychotherapistpatient privilege” in Plaintiff’s Response and Objections to Defendants’ First Set of
Interrogatories (Ex. A1 to Dr. Farmilant’s Report); 2) student evaluations for another potentially
similarly situated CRNA student (“K.K.”) (Ex. A10 Dr. Farmilant’s Report); 3) the deposition of
Dr. Karen Kreiner, a psychiatrist who treated Plaintiff (Ex. A17 Dr. Farmilant’s Report); 4)
documents subpoenaed from Dr. Kreiner (Ex. A18 Dr. Farmilant’s Report); 5) documents
subpoenaed from Dr. Hilarie Terrebessy, a staff psychologist at Rush who treated Plaintiff (Ex.
A19 Dr. Farmilant’s Report); 6) the deposition of Dr. Thomas Holmes, Plaintiff’s primary care
physician (Ex. A20 Dr. Farmilant’s Report); and 7) documents subpoenaed from Dr. Holmes

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(Ex. A21 Dr. Farmilant’s Report). Plaintiff’s motion has been fully briefed and is ripe for
disposition.
DISCUSSION
I.

LEGAL STANDARD
In this district, the sealing of documents is governed by Local Rule 26.2(b), which states

that the Court “may for good cause shown enter an order directing that one or more documents
be filed under seal.” However, the Seventh Circuit has generally taken a dim view of sealing
documents, and has articulated a somewhat rigorous standard for demonstrating good cause to
seal documents. While “[s]ecrecy is fine at the discovery stage, before the materials enter the
judicial record,” “those documents, usually a small subset of all discovery, that influence or
underpin the judicial decision are open to public inspection unless they meet the definition of
trade secrets or other categories of bona fide long-term confidentiality.” Baxter Int’l., Inc. v.
Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). “Documents that affect the disposition of
federal litigation are presumptively open to public view, even if the litigants strongly prefer
secrecy, unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 697,
701 (7th Cir. 2010). When litigants “call on the courts, they must accept the openness that goes
with subsidized dispute resolution by public (and publicly accountable) officials.” Union Oil Co.
of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). “‘It is desirable that the trial of
causes should take place under the public eye, not because the controversies of one citizen with
another are of public concern, but because it is of the highest moment that those who administer
justice should always act under the sense of public responsibility, and that every citizen should
be able to satisfy himself with his own eyes as to the mode in which a public duty is
performed.’” Goesel v. Boley Int’l Ltd., 738 F.3d 831, 833 (7th Cir. 2013) (quoting Cowley v.

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Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.)). “Judges deliberate in private but issue public
decisions after public arguments based on public records,” and “[a]ny step that withdraws an
element of the judicial process from public view makes the ensuing decision look more like fiat,
which requires compelling justification.” Union Oil, 220 F.3d at 568.
II.

DOCUMENTS PLAINTIFF SEEKS TO SEAL
A.

PLAINTIFF’S RESPONSES TO DEFENDANTS’ INTERROGATORIES

Plaintiff must file a version of her responses to Defendants’ First Set of Interrogatories
that only contains redactions for non-party contact information or personnel information;
Plaintiff may not redact that document for any other reason (i.e., Plaintiff cannot redact the
documents due to confidential medical information). The Court has reviewed the responses that
Plaintiff seeks to redact, and they concern the conditions that Plaintiff claims led to her leaves of
absence from the Rush CRNA program, and a description of her treatment for those conditions.
Dr. Farmilant reviewed this document and this information in reaching the conclusions put forth
in his expert report. There is currently pending before the Court a motion to exclude Dr.
Farmilant’s testimony. (Dkt. 78.) This will necessarily require the Court to consider whether
Dr. Farmilant’s opinion is based on sufficient facts or data, and is the product of reliable
principles and methods. See Fed. R. Evid. 702. In other words, this document is very clearly
part of the subset of documents in discovery “that [will] influence or underpin the judicial
decision” on the motion to exclude Dr. Farmilant’s testimony. See Baxter, 297 F.3d at 545. As
such, Seventh Circuit case law requires that the documents be open to public inspection, “unless
a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d at 701.
Plaintiff presents two arguments to justify confidentiality: 1) the psychotherapist-patient
privilege; and 2) the likelihood of embarrassment to the Plaintiff if these records are made

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public. (Dkt. 97 at 7.) As to the former, a plaintiff who places his or her mental health at issue
by seeking emotional distress damages waives the psychotherapist-patient privilege.
Kronenberg v. Baker & McKenzie LLP, 747 F. Supp. 2d 983, 989 (N.D. Ill. 2010).

See

This is

especially true where, as here, the Plaintiff has not only alleged emotional distress damages, but
has actively engaged an expert witness to “assess Ms. Marcial to determine if she meets the
diagnostic criteria for any stress disorder that might have resulted from” the treatment she was
subjected to by the Defendants. The Plaintiff has made affirmative choices to make her mental
health a central part of her claims for damages. She did not need to do so. She could have
pursued a claim solely for damages relating to her alleged economic and career damage that was
the result of Defendants’ alleged discrimination. However, by placing the issue of her mental
health squarely into middle of this dispute, she has waived her right to claim a psychotherapistpatient privilege over these documents, and the Court will not seal this document on that basis.
As for the embarrassment argument, Federal Rule of Civil Procedure 26(c)(1) states that
“[t]he court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). From the
plain language of the rule, it is not sufficient that the Plaintiff claim that the materials would
simply embarrass her; she must show that there is “good cause” to protect her from
embarrassment. This same good cause standard is echoed by Local Rule 26.2 pertaining to the
sealing of otherwise publicly filed materials. “To satisfy the good cause requirement in Rule
26(c), the party seeking the entry of the order must provide ‘specific examples of articulated
reasoning’, rather than ‘stereotyped and conclusory statements’ to support its assertion of good
cause.” Alexander Housing LLC v. Int’l Broth. of Elec. Workers, 2004 WL 1718654, at *3 (N.D.
Ill. July 29, 2004) (citing Andrew Corp. v. Rossi, 180 F.R.D. 338, 340 (N.D. Ill. 1998)).

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The entirety of Plaintiff’s argument in her brief is as follows: “[n]ot sealing this
information could cause Plaintiff embarrassment, an interest that the courts and Federal Rules of
Civil Procedure seek to protect.” (Dkt. 97 at 7.) This is a conclusory statement that does not
constitute “good cause” under the Federal Rules of Civil Procedure or the Local Rules. As the
party seeking confidentiality, the Plaintiff has the burden to show good cause, and must do more
than making a vague appeal to the embarrassment these records would cause, particularly when
Plaintiff chose to file this suit, claim emotional distress damages, and retain an expert to prove
that Defendants’ treatment of Plaintiff caused her to meet the diagnostic criteria of a stress
disorder. See Heraues Kulzer, GMBH v. Biomet, Inc., 881 F.3d 550, 556 (7th Cir. 2018).
B.

RECORDS FROM DRS. KREINER AND TERREBESSY

Plaintiff must also publicly file the deposition transcript of Dr. Kreiner, the documents
produced by Dr. Kreiner pursuant to subpoena, and the documents produced by Dr. Terrebessy
pursuant to subpoena. Regarding these document, Plaintiff makes the same arguments as above –
namely, that the documents are protected by the psychotherapist-patient privilege and would
cause Plaintiff embarrassment. Her arguments regarding embarrassment are almost identical to
the passage quoted by the Court in the previous section, and the Court rejects those arguments
for the same reasons discussed in the previous portion of this opinion; Plaintiff has waived the
privilege and has not provided specific demonstrations of fact necessary to support a finding of
“good cause” for confidentiality. Moreover, these documents are plainly crucial to the decision
this Court will have to make regarding the foundation for Dr. Farmilant’s opinion. These are
contemporaneous therapy records during the time Plaintiff was in the midst of her tribulations in
the CRNA program at Rush, and are the most valuable documents in determining whether
Defendants’ treatment of Plaintiff caused her to suffer from a stress disorder. It would be

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difficult to imagine documents that would be relied on more heavily in forming Dr. Farmilant’s
opinion, and thereby more likely to underpin this Court’s forthcoming decision on the reliability
of that opinion. As such, these are precisely the type of documents that should be open to public
inspection.
C.

RECORDS FROM DR. HOLMES

The Court believes that certain portions of Dr. Holmes’s deposition and treatment notes
should be redacted to protect Plaintiff from undue embarrassment. However, Plaintiff has sought
to file these documents under seal in their entirety. As such, the Court orders the parties to meet
and confer to agree to redactions that comport with this opinion, and file a redacted version of
the aforementioned documents within seven days of this opinion.
In the portion of her brief pertaining to Dr. Holmes’s records, Plaintiff noted that public
disclosure of these documents could harm her potential for future employment as a registered
nurse. Although it is a close call, the Court believes that this is sufficiently specific to meet the
good cause standard. Having shown good cause, “a court then must balance the public's interest
in access to the record against the interest of the party seeking confidentiality determine whether
to seal the record.” In re Bank One Securities Litig., 222 F.R.D. 582, 586 (N.D. Ill. 2004) (citing
In re Matter of Cont’l Securities Litig., 723 F.2d 1302, 1313 (7th Cir. 1984)). The Court notes
that these documents – coming from Plaintiff’s primary care physician, as opposed to a mental
health professional – have less relevance to Dr. Farmilant’s opinion on Plaintiff’s possible stress
disorders. To the extent that any of the information contained in these documents is not relevant
to Dr. Farmilant’s opinion, Plaintiff’s interest in maintaining confidentiality outweighs the
public’s right to inspect documents that are essential to the Court’s decision on Defendant’s
motion to exclude Dr. Farmilant’s report and testimony. Any such irrelevant information may be

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redacted. However, any information that is relevant to Dr. Farmilant’s opinion should remain
public. 3 As noted many times in this opinion, the public is presumed to have a right to this
information.

Having reviewed the documents, the Court finds that the Plaintiff’s concern

regarding embarrassment has relatively little weight, particularly since most of the potentially
embarrassing relevant subject matter is already going to be publicly available through the records
from Drs. Kreiner and Terrebessy. 4 Therefore, the Court orders the parties to meet and confer
regarding the portions of Dr. Holmes’s records that may be redacted, and to file a version of
those documents with the agreed redactions within seven days of this opinion.
D.

K.K.’s EVALUATIONS

Plaintiff must file a redacted version of K.K.’s evaluations that comport with FERPA.
FERPA prohibits educational institutions from releasing identification information in a student’s
record without their written consent. 34 C.F.R. § 99.30. Although K.K. has consented to the
production of her documents in this case, it is unclear to the Court whether that consent was
limited to production under the Confidentiality Order in this case or included consent to have her
evaluations filed on a public docket. 5 Either way, the Defendants have agreed to redact the
evaluations in a way that satisfies FERPA’s requirements, which the Court believes is a sensible
solution. Additionally, Plaintiff has not explained why FERPA requires that K.K.’s evaluations
must be sealed in their entirety. when redactions could sufficiently protect her interests.
3

This includes the documentation of palpitations that forms a large portion of the deposition of Dr. Holmes.
To be clear, the Court is not suggesting that the public interest outweighs Plaintiff’s privacy concerns only because
of the other information that the Court is ordering Plaintiff to publicly file, or that Plaintiff’s privacy interest in
sealing the documents from Drs. Kreiner and Terrebessy would outweigh the public interest if Plaintiff had she been
able to adequately demonstrate good cause. However, the fact of that matter is that Plaintiff has failed to show good
cause to file those documents under seal, so they will be public, and that fact necessarily weighs into the Court’s
calculation.
5
The Confidentiality Order limits the dissemination of confidential discovery materials to counsel, the parties, and a
small universe of third parties, such as court reporters, witnesses, and expert witnesses. (Dkt. 72 at 3-4.) However,
the Confidentiality Order also provides that any party wishing to file a document under seal must comply with Local
Rule 26.2. It is possible that K.K. consented to the release of her documents in discovery to be shared with the
limited group of people described above without intending or understanding that those documents could be filed on
a publicly accessible court docket.
4

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Therefore, the Court orders that a redacted version of K.K.’s evaluations that meets the
requirements of FERPA be filed publicly.
CONCLUSION
For the reasons discussed herein, Plaintiff’s Motion for Leave to File Documents Under
Seal [93] is granted in part and denied in part.

ENTERED:

Date: August 30, 2018

_____________________________________

U.S. Magistrate Judge, Susan E. Cox

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