KEATON v. HANNUM et al

Filing 173

ORDER denying Pltf's 158 Motion to Quash (see Order) c/m. Signed by Magistrate Judge Mark J. Dinsmore on 7/23/2013. (SWM) Modified on 7/24/2013 (SWM).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARK KEATON,
Plaintiff,
vs.
DAVE HANNUM,
LESLIE SLONE,
CHRISTINE ZOOK,
REBA GARDNER,
JACKIE DAKICH,
Defendants.

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No. 1:12-cv-00641-SEB-MJD

ORDER ON PLAINTIFF’S MOTION TO QUASH [DKT. 158]
This matter comes before the Court on Plaintiff’s Motion to Quash. [Dkt. 158.] For the
following reasons, the Motion is DENIED.
I.

Background

Plaintiff filed this action under 42 U.S.C. §1983 as well as the First, Fourth, and
Fourteenth Amendments of the United States Constitution [Dkt. 7 at 2], alleging that he was
unlawfully arrested and prosecuted. [Dkt. 7 at 3.] He seeks compensatory and punitive damages
for harm caused by Defendants’ actions. [Dkt. 7.] Plaintiff’s Amended Complaint does not
mention any variant of “emotional distress.” [Id.] However, in Plaintiff’s Statement of Special
Damages, Plaintiff alleges, as part of his compensatory damage claim relating to loss of income,
that “since [D]efendants’ actions, [P]laintiff has had almost no business, and the emotional and
psychological damage [D]efendants have cause [sic] has rendered [P]laintiff unable to resurrect
his practice.” [Dkt. 70 at 2.] Plaintiff further alleges that he “cannot walk into a courtroom now

without suffering debilitating anxiety and depression.” [Id.] Plaintiff plans to present expert
testimony on the financial impact Defendants’ conduct has had on him. [Dkt. 70 at 3.] It is not
clear whether that testimony would include commentary on Plaintiff’s mental health.
Defendant Zook argues that, in light of the above statements, Plaintiff’s mental health
records are relevant to show whether Defendants’ actions may have caused Plaintiff’s
complained-of conditions, or whether those conditions may have preexisted the incident in
question. [Dkt. 160 at 3.] Defendant Zook also argues that Plaintiff has waived the
psychotherapist-patient privilege by alleging emotional and psychological damage as well as
anxiety and depression. [Dkt. 160 at 1.]
Plaintiff argues that the subpoenaed records date from prior to the arrest, have nothing to
do with the arrest, and are therefore irrelevant. [Dkt. 158 at 2.] Further, he alleges that the
information sought is privileged from disclosure under federal law. [Dkt. 158 at 6.]
II.

Discussion

The U.S. Supreme Court recognized a federal psychotherapist-patient privilege in Jaffee
v. Redmond, holding that “confidential communications between a licensed psychotherapist and
her patients in the course of diagnosis or treatment are protected from compelled disclosure.”
518 U.S. 1, 15 (1996). The Court went on to say, however, that “like other testimonial
privileges, the patient may of course waive the protection.” Id. at 15 n.14. While the Supreme
Court did not give any guidance on how the privilege might be waived, the Seventh Circuit held,
in Doe v. Oberweis Dairy, that “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, 718 (7th Cir. 2006).

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The Seventh Circuit has given no further guidance on when a plaintiff has placed his
psychological state in issue. See Flowers v. Owens, 274 F.R.D. 218, 224 (N.D. Ill. 2011).
However, the psychotherapist-patient privilege has often been analogized to the attorney-client
privilege. See, e.g., Jaffee, 518 U.S. at 10. An earlier Seventh Circuit decision held that the
attorney-client privilege can be waived either explicitly or implicitly. Lorenz v. Valley Forge
Ins. Co., 815 F.2d 1095 (7th Cir. 1987) (“Implicit disclosure can occur . . . when a holder relies
on a legal claim or defense, the truthful resolution of which will require examining confidential
communications.”).
In this case, Plaintiff was ordered to clarify whether or not he is seeking damages for
emotional distress. [Dkt. 169.] He has not done so. Thus, since there is language in Plaintiff’s
Statement of Special Damages that seems to indicate that he is seeking damages for emotional
distress, he is deemed to have implicitly waived the psychotherapist-patient privilege, because
the truthful resolution of Plaintiff’s claim will require examining Plaintiff’s mental health
records. Contrary to Plaintiff’s argument, the records will be relevant to show whether the
emotional distress may have been caused by something other than Defendants’ actions. “If
[Plaintiff] wants a jury to compensate [him] for emotional distress, Defendant should be able to
explore in discovery, other circumstances that may have caused the injury.” EEOC v. Cal.
Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D. Cal. 2009); see also Santelli v. ElectroMotive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (“A party cannot inject his or her psychological
treatment, conditions, or symptoms into a case and expect to be able to prevent discovery of
information relevant to those issues.”).

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III.

Conclusion

For the reasons stated above, Plaintiff’s Motion to Quash is DENIED, and discovery into
Plaintiff’s mental health records may proceed. Plaintiff is ordered to execute releases for his
mental health records.

Date: 07/23/2013
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Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
MARK KEATON
PO BOX 11208
Ft. Wayne, IN 46856
David L. Ferguson
FERGUSON & FERGUSON
[e-mail]
Kate E. Shelby
INDIANA ATTORNEY GENERAL
[e-mail]
David B. Hughes
INDIANA SUPREME COURT DISCIPLINARY COMMISSION
[e-mail]
Caryn M. Nieman
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Don R. Hostetler
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
James R. A. Dawson
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Daniel Mark Witte
TRAVELERS STAFF COUNSEL OFFICE
[e-mail]
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