DAVIS v. GLOBAL MONTELLO GROUP CORP
MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE By MAGISTRATE JUDGE JOHN H. RICH III. (ccs)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CAROL A. DAVIS,
GLOBAL MONTELLO GROUP CORP.,
MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE
At the defendant’s request, I held a telephone conference in this employment action to
resolve a dispute over the plaintiff’s refusal to respond to discovery regarding her medical,
psychiatric, psychological, and other health care, on the basis of the physician-patient and
psychotherapist-patient privileges. For the reasons that follow, I deny the defendant’s bid for the
discovery in dispute.
The plaintiff has sued the defendant, her prior employer, for unlawful retaliation, gender
discrimination, and sexual harassment/hostile work environment, seeking damages for, inter alia,
mental anguish. See Complaint and Jury Trial Demand (ECF No. 1) ¶¶ 23-29, 33-49.
The parties’ dispute, as clarified during the teleconference, turned on whether the plaintiff
had forfeited the psychotherapist-patient privilege by seeking damages for mental anguish in
circumstances in which she has testified that she continues to suffer severe mental distress as a
result of alleged sexual harassment to which she was subjected by a different employer.
As both sides recognized, this court has held that “the mere assertion of a damages claim
for ‘garden variety’ or ‘incidental’ emotional distress is not sufficient to constitute waiver of the
psychotherapist-patient privilege.” Morrisette v. Kennebec County, No. Civ. 01-01-B-S, 2001 WL
969014, at *1 (D. Me. Aug. 21, 2001). See also Doe v. Brunswick Sch. Dep’t, No. 2:15-cv-257DBH, 2016 U.S. Dist. LEXIS 59107, at *7-*11 (D. Me. Apr. 29, 2016); Stark v. Hartt Transp.
Sys., Inc., No. 2:12-CV-195-NT, 2013 WL 358266, at *9-*10 (D. Me. Jan. 28, 2013).
This court has explained that “[g]arden variety claims refer to claims for compensation for
nothing more than the distress that any healthy, well-adjusted person would likely feel as a result
of being so victimized[,]” whereas “claims for serious distress refer to claims for the inducement
or aggravation of a diagnosable dysfunction or equivalent injury.” Stark, 2013 WL 358266, at *9
(citation and internal quotation marks omitted).
In passing, the defendant challenged this court’s ruling that the assertion of a gardenvariety emotional distress claim does not waive the privilege. However, in the main, it argued that
this case is distinguishable because the plaintiff, by her own testimony, has suffered more than
garden-variety emotional distress. The defendant contended that, in fairness, it ought to be
permitted to examine the requested records, which would be produced subject to an existing
confidentiality order, and reopen the plaintiff’s deposition for a period of up to an hour, regardless
of whether such evidence ultimately might be admissible.
In the alternative, the defendant requested that, if the court were inclined to deny its request,
it do so upon the same four conditions imposed in Doe, in which the court recognized that, on the
facts alleged in that complaint, “the plaintiff and her son may well have experienced emotional
injuries that were, given their personal characteristics and pre-existing conditions, in excess of
those that would be likely to have been experienced by ‘any healthy, well-adjusted person’ who
found himself in either plaintiff’s alleged position.” Doe, 2016 U.S. Dist. LEXIS 59107, at *10.
The plaintiff argued that she seeks only garden-variety emotional distress damages, and
thus the privilege has not been waived. She disputed, as a factual matter, that she suffered more
than garden-variety emotional distress from the defendant’s alleged conduct, pointing to portions
of her deposition testimony indicating that she suffered the distress at issue primarily as a result of
the loss of her job and income. She stated that, precisely because she does not claim greater than
garden-variety emotional distress, she would be willing to abide by the four Doe conditions.
Treating the defendant’s request for the court’s assistance as an oral motion to compel the
production of the discovery at issue, and taking into consideration the plaintiff’s unequivocal
statement that she was willing to abide by the Doe conditions, I DENIED the motion on condition
The plaintiff does not pursue any claims for damages due to a medically
diagnosable mental health condition.
The plaintiff does not rely on any medical or mental health experts, providers, or
records to prove damages.
The plaintiff does not seek any damages based on hospitalizations or medical or
mental health treatment or evaluation.
The plaintiff does not seek damages for emotional distress beyond that which would
likely be felt by any healthy, well-adjusted person as a result of the causes of action that she
continues to allege after the date of this order.
I reasoned that the question of whether a plaintiff has forfeited the psychotherapist-patient
privilege pursuant to Morrisette and its progeny turns not on a plaintiff’s characteristics or history
but, rather, on the nature of his or her claim – specifically, whether the plaintiff makes a claim for
emotional distress damages greater than those that any healthy, well-adjusted person would suffer
as a result of the conduct at issue.
While this plaintiff, like the Doe plaintiffs, has a history that might call into question
whether her emotional distress damages truly are garden-variety, her unequivocal statement that
she does not seek greater than garden-variety emotional distress damages, evidenced by her
willingness to abide by the Doe conditions, forecloses discovery of records and information
protected by the psychotherapist-patient privilege.
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 3rd day of March, 2017.
/s/ John H. Rich III_
John H. Rich III
United States Magistrate Judge
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