Payton et al v. Southern Fidelity Insurance Company

Filing 26

ORDER AND REASONS - IT IS ORDERED that the Motion to Quash Subpoena Duces Tecum (Rec. Doc. 12 ) is DENIED, as set forth in document. Signed by Magistrate Judge Daniel E. Knowles, III on 11/5/2018. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEVEN PAYTON, ET AL.

CIVIL ACTION

VERSUS

NO. 18-2365

SOUTHERN FIDELITY INSURANCE COMPANY

SECTION “J” (3)

ORDER
On October 10, 2018, the Motion to Quash Subpoena Duces Tecum Pursuant to Fed. R.
Civ. P. 45 and 26 [Doc. #12] came on for oral hearing before the undersigned. Present were Jim
Mullaly on behalf of plaintiff and Kevin Riche on behalf of defendant. After the oral hearing, the
Court took the motion under advisement and ordered plaintiffs to produce the documents for which
they claimed privilege to the Court for in camera review no later than five days from the date of
that minute entry. The Court further ordered plaintiffs to produce the remaining documents to
defendant at that time. It is now November 5, 2018 – 26 days after the oral hearing and dated
minute entry – and, despite a telephone call to plaintiffs’ counsel, this Court has yet to receive the
documents for which plaintiffs allege privilege. This Court waits no longer to rule. Having
reviewed the pleadings and the case law, the Court rules as follows.
I.

Background
Plaintiffs originally filed suit in the Civil District Court for the Parish of Orleans, State of

Louisiana. Plaintiffs allege that on August 20, 2017, a fire broke out in their home while they were
out of town in Lafayette, Louisiana, which destroyed all but the free-standing swimming pool. In
January 2018, plaintiffs provided defendant with a proof of loss. Defendant refuses to pay the
claim.

Plaintiffs thus sues defendant for, among other things, damages, breach of contract, and bad faith
failure to pay a claim. Defendant removed the case to this Court on March 5, 2018, based upon
diversity and the amount in controversy pursuant to 28 U.S.C. §§ 1332 and 1441.
II.

The Parties’ Arguments
A.

The Motion to Quash

Defendant issued a subpoena to plaintiff’s psychiatrist that, in essence, seeks “any and all”
medical records from Dr. Jonathan Rynning, who plaintiffs identified as having treated Steven
Payton at some point in the past.
Plaintiffs first argue that they have standing to move to quash the subpoena because it seeks
their medical records in which they have a personal right and interest.
Plaintiffs also contend that the subpoena is overbroad because it seeks “any and all” records
without specifying the specific records that defendant seeks. Plaintiffs also argue that the subpoena
is irrelevant and does not seek information or documents that may be admissible at trial. Plaintiffs
query how the medical records of Rynning are relevant to their claim that their house burned.
Noting that the Supreme Court has recognized a psychotherapist-patient privilege, they
lastly argue that the subpoena seeks documents that are protected by the privilege and that they
have not waived the privilege.
B.

The Opposition

Defendant maintains that plaintiffs explicitly listed “mental anguish” as a claim for
damages against it. Quoting the subpoena, defendant argues that its subpoena explicitly and
specifically outlines the documents that it seeks when it states “any and all documents contained
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in the medical records in your possession regarding medical and/or mental health evaluation or
treatment to Steven C. Payton, DOB 02/03/1969, SSN XXX-XX-9254, including but not limited
to, your records, records from other facilities or providers, notes of treatment, progress notes,
hospital records, nurses notes, consultant's reports, patient questionnaires, narrative reports,
laboratory tests, diagnostic films, diagnostic studies and reports, medication records, discharge
summaries, billing information, billing records, and/or billing statements.”
Defendant thus maintains that the subpoena is not overly broad. It contends that all of the
documents requested are material to plaintiffs’ claims and alleged damages. It argues that should
the Court find that a temporal limitation is necessary, ten years is the relevant starting point because
plaintiffs failed to specify in their response when Rynning treated Steven. Defendant asserts that
the documents may bear on Steven’s mental health claim or any diagnosis or treatment relating to
depression caused by financial problems, the most common motive for arson (which defendant
investigates here).
Defendant claims that by asserting a claim for mental anguish damages, plaintiffs have put
their mental state at issue. Citing case law, it notes that court have held that in such a situation,
the medical records of plaintiffs are relevant. Also citing case law, defendant notes that courts
have held that plaintiffs have waived the psychotherapist-patient privilege by placing their mental
state at issue.
III.

Law and Analysis
“[M]edical records [of a plaintiff] asserting emotional distress damages are relevant to help

the Defendant assess the Plaintiff's emotional distress claim and may provide the defendant with
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an alternative explanation for the Plaintiff's emotional distress claim.” Bacharach v. Sun Trust
Mortgage, Inc., Civ. A. No. 17-5141, 2015 WL 1843007, at *7 (E.D. La. April 22, 2015) (citing
Hingle v. Bd. of Adm'rs of Tulane Educ. Fund, No. Civ. A. 95-0134, 1995 WL 731696, at *3 (E.D.
La. Dec. 7, 1995). “[W]hile plaintiff may not have sought psychiatric or psychological counselling
for her [new injury], this does not reduce the relevancy of her seeking such counselling in the past.
The Court finds that these previous records are not ‘wholly peripheral’ as plaintiff claims, but are
reasonably calculated to lead to the discovery of admissible evidence.” Id.
Moreover, several courts have held that a patient may waive the psychotherapist-patient
privilege in certain circumstances. Tanner v. BD LaPlace, L.L.C., Civ. A. No. 17-5141, 2018 WL
3528023, at *2 (E.D. La. July 23, 2018) (citing Stogner v. Sturdivant, No. 10-125, 2011 WL
4435254, at *5 (M.D. La. Sept. 22, 2011) (“Courts have routinely held that, by putting one’s
medical condition at issue in a lawsuit, a plaintiff waives any privilege to which he may have
otherwise been entitled as to his privacy interest in his medical records.”).
This case law demonstrates that the documents requested are not only relevant but that
plaintiffs have waived any privilege by asserting a claim for mental anguish damages. See Tanner,
2018 WL 3528023, at *2; Stogner, 2011 WL 4435254, at *5; see also Butler v. Louisiana Dept. of
Pub. Safety & Corr., No. 12-420, 2013 WL 2407567, at *3 (M.D. La. May 29, 2013) (“If the Court
determines, however, that proof of the elements of Plaintiff's causes of action requires the use of
the privileged material, then the Court is proper to conclude that the psychotherapist-patient has
been waived.”). The Court finds that plaintiffs’ medical records from Rynning are relevant here
and proportionate to the needs of the case. As noted by the Bacharach court, such discovery may
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provide an alternate explanation for the mental distress suffered by Steven Payton. Accordingly,
the Court denies the motion.
The Court finds that the subpoena should have a temporal limitation, however. Because
the parties have failed to identify to the Court the temporal period during which Rynning treated
Payton, ten (10) years is an appropriate temporal limitation.
IV.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion to Quash Subpoena Duces Tecum Pursuant to Fed. R.

Civ. P. 45 and 26 [Doc. #12] is DENIED.

New Orleans, this 5th day of November, 2018.

DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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