Silvestri v. Smith et al
Filing
78
Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 70 Defendants' Motion to Compel. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARK SILVESTRI,
Plaintiff,
v.
JAMES SMITH, et al.,
Defendants.
)
)
)
)
)
)
)
)
CIVIL ACTION
NO. 14-13137-FDS
MEMORANDUM OF DECISION AND
ORDER ON DEFENDANTS’ MOTION TO COMPEL
February 26, 2016
DEIN, U.S.M.J.
I. INTRODUCTION
This action arises out of two alleged assaults on the plaintiff, Mark Silvestri (“Silvestri”),
which occurred in July 2011 while Silvestri was in pretrial detention at the Plymouth County
Correctional Facility (“PCCF”) in Plymouth, Massachusetts. Silvestri claims that the defendants,
including four corrections officers and a Captain at PCCF, either participated in, or failed to
intervene in order to protect him from, the alleged assaults. He further alleges that he suffered
a number of physical injuries, as well as severe emotional distress, as a result of the defendants’
actions. By his Second Amended Complaint, Silvestri has brought claims against the defendants
pursuant to 42 U.S.C. § 1983 and state law, including claims for violations of his Fourteenth
Amendment right to substantive due process (Counts I-III), as well as claims for assault and
battery (Counts IV-V), negligence (Count VI), wanton and reckless conduct (Counts VII-IX),
intentional infliction of emotional distress (Count X) and negligent infliction of emotional
distress (Count XI).
The matter is presently before the court on the “Defendants’ Motion to Compel
Discovery” (Docket No. 70). By their motion, the defendants are seeking an order: (i)
compelling the plaintiff to respond to deposition questions regarding any mental health
diagnoses and treatment that he received subsequent to the time of the alleged assaults, and
(ii) compelling the production of treatment records from Silvestri’s mental health providers,
including but not limited to, four different psychotherapists from whom Silvestri has obtained
treatment since 2012. There is no dispute that Silvestri’s communications with his
psychotherapists fall within the scope of the psychotherapist-patient privilege, as established
pursuant to federal common law. Nevertheless, the defendants contend that the plaintiff has
waived his right to assert a privilege over those communications by filing specific claims for
emotional distress and putting his emotional condition directly at issue in the litigation. The
plaintiff argues that the court should adopt a narrow approach to waiver of the
psychotherapist-patient privilege. He further argues that when such an approach is applied to
the circumstances of this case, no waiver can be found because Silvestri has not made, and
does not intend to make, affirmative use of the privileged communications in connection with
the prosecution of his claims.
After consideration of the parties’ written submissions and their oral arguments, the
motion to compel is hereby ALLOWED IN PART and DENIED IN PART WITHOUT PREJUDICE. As
detailed below, Silvestri has not shown that information regarding the nature of any mental
health diagnoses or treatment he has received since the date of the alleged assaults falls within
2
the scope of the psychotherapist-patient privilege. Therefore, the motion is allowed to the
extent that it seeks such information. This court also finds that the narrow approach to waiver
applies in this case, and that Silvestri has not waived his right to assert the privilege over
communications with his mental health providers. Accordingly, to the extent the defendants
are seeking treatment records from Silvestri’s mental health providers, their motion is denied.
However, the denial shall be without prejudice to the defendants’ ability to renew their motion
following the disclosure of experts, or at any other appropriate point in the proceedings, if it
appears that the plaintiff is seeking to make affirmative use of the privileged information.
II. DISCUSSION
A.
The Psychotherapist-Patient Privilege
Scope of the Privilege
“The Supreme Court [has] recognized the psychotherapist-patient privilege as a matter
of federal common law[.]”1 In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 73
(1st Cir. 1999). Pursuant to the privilege, “confidential communications between a licensed
psychotherapist and her patients in the course of diagnosis or treatment are protected from
compelled disclosure” under Rule 501 of the Federal Rules of Evidence. Id. (quoting Jaffee v.
Redmond, 518 U.S. 1, 15, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996)). Thus, the privilege applies
to “confidential communications made to licensed psychiatrists and psychologists[,]” as well as
to “confidential communications made to licensed social workers in the course of
psychotherapy.” Jaffee, 518 U.S. at 15, 116 S. Ct. at 1931.
1
There is no dispute that where, as here, a case includes both federal and state law claims, “the federal law of
privilege applies.” Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 226-27 (D. Mass. 1997).
3
“As a general matter, a party asserting a privilege has the burden of showing that the
privilege applies.” In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d at 73.
Accordingly, “a party asserting the psychotherapist-patient privilege must show that the
allegedly privileged communications were made (1) confidentially (2) between a licensed
psychotherapist and her patient (3) in the course of diagnosis or treatment.” Id. In the instant
case, there is no dispute that communications between Silvestri and his psychotherapists or
other mental health providers are covered by the privilege. (See Defs.’ Mem. (Docket No. 71)
at 1, 6). However, the defendants maintain that they are entitled to information pertaining to
Silvestri’s mental health diagnoses and treatment, and to copies of treatment records
maintained by Silvestri’s mental health providers, because the privilege has been waived. (Id.
at 6). While this court finds that the first category of information is discoverable, the
defendants have not shown that they are entitled to the disclosure of Silvestri’s treatment
records.
Application of the Privilege
It is undisputed that the treatment records at issue reflect confidential communications
between the plaintiff and his mental health providers, which were made in the course of his
diagnosis or treatment. (See Defs.’ Mem. at 1, 6; Pl. Opp. Mem. (Docket No. 75) at 3).
Accordingly, there is no dispute that those records fall within the scope of the psychotherapistpatient privilege. However, Silvestri has not shown that information regarding any mental
health diagnoses and treatment that he may have received is similarly protected. Therefore,
the defendants are entitled to the disclosure of that information.
4
As described above, the privilege applies to “communications” between the patient and
his mental health provider that are made “in the course of diagnosis or treatment[.]” Jaffee,
518 U.S. at 15, 116 S. Ct. at 1931. Thus, the “privilege protects only the substance of
communications” between the patient and his treatment provider. Howe v. Town of N.
Andover, 784 F. Supp. 2d 24, 34 (D. Mass. 2011). It does not apply to “facts regarding the
occurrence of psychotherapy, such as the name of the psychotherapist or dates and costs of
treatment[.]” Id. Nor does it protect other non-communicative information such as the nature
of any diagnosis or treatment for a mental health condition. See In re Adoption of Saul, 60
Mass. App. Ct. 546, 549-53, 804 N.E. 2d 363-65 (2004) (distinguishing between communicative
conduct that relates to diagnosis or treatment of a mental illness, which falls within the scope
of the Massachusetts psychotherapist-patient privilege, from the diagnosis itself, which is not
protected). In the instant case, Silvestri has failed to establish that the disclosure of any mental
health diagnoses, or the nature of any mental health treatment he has received since the time
of the alleged assaults, would reveal the substance of any privileged communications.
Therefore, the defendants’ motion is allowed to the extent it seeks such information. By March
2, 2016 or any other date agreed to by the parties, the defendants shall serve the plaintiff with
an Interrogatory requesting any non-privileged information regarding his mental health
treatment, including any diagnoses, the nature of his treatment (including any medications),
the dates of such treatment, and whether or not the plaintiff is seeking damages in connection
with any such diagnoses and treatment. The plaintiff shall provide a response to the
defendants’ Interrogatory by March 9, 2016 or any other date agreed to by the parties.
5
B.
Waiver
The next question that has been raised by the defendants’ motion is whether
Silvestri has waived his right to assert a psychotherapist-patient privilege over his mental health
records. The defendants argue that the plaintiff has waived the privilege by “seek[ing]
monetary relief for a panoply of severe harms that he allegedly suffered – and continues to
suffer – from the July 2011 incidents” at PCCF, by asserting claims for intentional and negligent
infliction of emotional distress, and by alleging mental injury “well beyond a ‘garden variety’
emotional distress claim.” (Defs.’ Mem. at 6). Thus, the defendants urge this court to adopt
what courts refer to as the “middle ground” approach to waiver of the psychotherapist-patient
privilege, and to find that Silvestri has waived the privilege by alleging severe emotional distress
and asserting separate tort claims for intentional and negligent infliction of emotional distress.
(See id. at 5-6). The plaintiff argues that this court should adopt the so-called “narrow”
approach to waiver because it is consistent with the view of district courts in Massachusetts,
with the directives of the Supreme Court as set forth in Jaffee, and with Massachusetts state
law regarding the psychotherapist-patient privilege, and because it would safeguard Silvestri’s
privacy without causing prejudice to the defendants. (Pl. Opp. Mem. at 6). He further argues
that under the narrow approach, no waiver has occurred. (Id. at 6-7). For the reasons that
follow, this court finds Silvestri’s position persuasive.
Federal Courts’ Approaches to Waiver
Federal courts faced with the question of waiver of the psychotherapist-patient privilege
“have developed divergent approaches for determining whether [the] privilege has been
waived.” St. John v. Napolitano, 274 F.R.D. 12, 18 (D.D.C. 2011). Some courts have applied
6
what is known as the “broad” approach to waiver. Id. Those “courts have held that a plaintiff
places his or her medical condition at issue and waives the psychotherapist-patient privilege
simply by making a claim for emotional distress.” Id. Therefore, under the broad approach,
“merely alleging the experience of emotional distress” is sufficient to waive the psychotherapist-patient privilege. Id. This court is not aware of any cases in the District of Massachusetts in
which a judge has adopted this approach.
Other courts, including a number of judges in this district, have applied the so-called
“narrow” approach to waiver. See id. Those courts have held that “the privilege is not waived
unless the plaintiff makes affirmative use of the privileged material in connection with [the]
prosecution of the case.” Booker v. city of Boston, Nos. 97-CV-12534-MEL, 97-CV-12675-MEL,
1999 WL 734644, at *1 (D. Mass. Sept. 10, 1999) (citations omitted). See also Howe, 784 F.
Supp. 2d at 34 (finding that privilege is waived where plaintiff calls the psychotherapist as a
witness or relies on the substance of a privileged communication, but not where plaintiff
merely asserts claims for emotional distress); Vanderbilt, 174 F.R.D. at 228 (holding “that
Plaintiff must use the privileged communication as evidence herself before she waives the
privilege”). Accordingly, under the narrow approach, “[a] plaintiff does not waive [his] patientpsychotherapist privilege merely by bringing . . . a ‘garden-variety’ claim for emotional distress,
such as allegations of ‘mental anguish, severe emotional distress . . . [or] emotional pain.’”
Howe, 784 F. Supp. 2d at 34 (quoting Sorenson v. H & R Block, Inc., 197 F.R.D. 199, 204-05 (D.
Mass. 2000)). “Further, the fact that [a plaintiff] bring[s] claims for intentional and negligent
infliction of emotional distress does not, in and of itself, operate as a waiver.” Sorenson, 197
F.R.D. at 204-05. Rather, pursuant to the narrow approach, the privilege is waived only “if
7
plaintiff calls the psychotherapist as a witness or introduces into evidence (including by
plaintiff’s own testimony) the substance of any privileged communication.” Howe, 784 F. Supp.
2d at 34.
At least one judge in Massachusetts has applied a third approach-- the so-called
“’middle ground’ approach.” See Cabot v. Lewis, C.A. No. 13-11903-FDS (D. Mass. Apr. 28,
2015) (Docket No. 129) (“Cabot Order”).2 Under that approach, courts have attempted to draw
“a distinction between claims for ‘garden variety’ emotional distress and more severe
emotional distress allegations” by looking at the nature and extent of the injury alleged as well
as the plaintiff’s claims. St. John, 274 F.R.D. at 18. Accordingly, courts applying the middle
ground approach will consider a number of factors to determine whether the plaintiff has
waived the psychotherapist-patient privilege by alleging more than “garden variety” emotional
distress. See id. at 19. Such factors include: (1) whether the plaintiff has asserted “a cause of
action for intentional or negligent infliction of emotional distress;” (2) whether the plaintiff has
alleged “a specific mental or psychiatric injury or disorder;” (3) whether the plaintiff has
asserted “a claim of unusually severe emotional distress;” (4) whether the plaintiff seeks to
offer “expert testimony to support a claim of emotional distress;” and/or (5) whether the
plaintiff concedes “that his or her mental condition is in controversy” in the case. Id. (quoting
Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995)) (internal quotations omitted).
Thus, under the middle ground approach, “if the plaintiff alleges a separate tort for the distress
or claims a specific injury or disorder or unusually severe distress, he has waived the privilege.”
2
A copy of the Cabot order is attached as an Exhibit to the defendants’ memorandum in support of their motion to
compel.
8
Cabot Order at 6. As described above, the defendants urge this court to adopt the middle
ground approach, while the plaintiff argues that the narrow approach is appropriate.
Adoption of the “Narrow” Approach to Waiver
This court finds that the narrow approach to waiver should apply to this case. As an
initial matter, “the federal court in Massachusetts has been [nearly] uniform in taking the more
limited view” of waiver of the psychotherapist-patient privilege. Sorenson, 197 F.R.D. at 204.
In fact, the courts have taken this view both when applying the federal common law of privilege
and when applying Massachusetts law. See, e.g., Bettencourt v. Arruda, C.A. No. 10-11487-JGD,
2011 WL 4905694, at *1 (D. Mass. Oct. 14, 2011) (finding no waiver under state law where
plaintiff did not call his psychotherapist as a witness or attempt to introduce the substance of
privileged communications); Howe, 784 F. Supp. 2d at 34 (taking narrow approach to waiver in
action brought under 42 U.S.C. § 1983); Sorenson, 197 F.R.D. at 204 (adopting narrow view of
waiver in case involving application of state law “because that appears to be the law in
Massachusetts”); Vanderbilt, 174 F.R.D. at 228 (adopting narrow view of waiver in case applying
federal law of privilege). Even more significantly, this court finds that the narrow approach
provides the best means of carrying out the Supreme Court’s directive, as articulated in Jaffee,
that decisions regarding application of the psychotherapist-patient privilege should be
predictable, and should not be made by balancing the plaintiff-patient’s interest in privacy
against the defendant’s need for the evidence. Specifically, as the Jaffee Court stated in
relevant part:
We reject the balancing component of the privilege implemented by … a
small number of States. Making the promise of confidentiality contingent
upon a trial judge’s later evaluation of the relative importance of the
patient’s interest in privacy and the evidentiary need for disclosure would
9
eviscerate the effectiveness of the privilege. As we explained in Upjohn
[Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584
(1981)], if the purpose of the privilege is to be served, the participants in
the confidential conversation “must be able to predict with some degree
of certainty whether particular discussions will be protected. An
uncertain privilege, or one which purports to be certain but results in
widely varying applications by the courts, is little better than no privilege
at all.” 449 U.S., at 393, 101 S. Ct., at 684.
Jaffee, 518 U.S. at 17-18, 116 S. Ct. at 1932 (footnote omitted). Because it provides patients
with predictability, the narrow approach to waiver serves both the patient’s interest in
“protecting confidential communications . . . from involuntary disclosure,” and the public
interest in “facilitating the provision of appropriate treatment for individuals suffering the
effects of a mental or emotional problem.” Id. at 11, 116 S. Ct. at 1929. In contrast, the middle
ground approach, which “hinges on an after-the-fact judicial assessment of numerous
qualitative factors[,] introduces a risk of uncertainty that the Supreme Court in Jaffee sought to
avoid.” Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal. 2003). Therefore, this court
concludes that the narrow approach should apply here.
Finally, this court notes that this court’s adoption of the narrow approach to waiver will
cause little if any prejudice to the defendants. As described above, “the privilege applies only
to ‘communications’ between the plaintiff-patient and [his] therapist[s] and the records of such
communications.” Booker, 1999 WL 734644, at *1. Therefore, “[t]he defendants remain free
to question the plaintiff[ ] about the fact of psychotherapy treatment” and “can still probe the
[plaintiff’s] credibility and ‘inquire into [his] past[ ] for the purpose of showing that [his]
emotional distress was caused at least in part by events and circumstances that were not
[related to the alleged acts of the defendants].’” Id. (quoting Sidor v. Reno, No. 95 Civ. 9588
(KMW), 1998 WL 164823, at *1-2 (S.D.N.Y. Apr. 7, 1998)). For this reason as well, this court will
10
adhere to the narrow approach to determine whether Silvestri has waived the privilege over his
communications with his psychotherapists.
Application of the Narrow Approach to the Instant Case
This court finds that Silvestri has not waived the psychotherapist-patient privilege.
According to the plaintiff, he does not intend to call any of his psychotherapists as witnesses in
this case, and does not plan to present evidence regarding the substance of his privileged
communications. (Pl. Opp. Mem. at 11). Moreover, although Silvestri alleged in his complaint
that the defendants’ conduct caused him to suffer post-traumatic stress disorder (“PTSD”), he
has withdrawn that claim and has indicated that he “will not claim that Defendants’ conduct
caused him to suffer any particular or specific psychiatric disorder” such that he would need to
present expert testimony regarding his condition. (Id.). While the plaintiff has asserted state
law claims for the intentional and negligent infliction of emotional distress, and has alleged that
the defendants caused him to suffer “severe emotional distress,” including nightmares and
anxiety, this is not enough to waive the psychotherapist-patient privilege. See Howe, 784 F.
Supp. 2d at 34. Therefore, to the extent the defendants are seeking to compel the production
of Silvestri’s mental health records, their motion is denied. However, the denial shall be
without prejudice to renewal following the disclosure of experts, or at any appropriate point in
the proceedings, if it appears that the plaintiff is seeking to make affirmative use of the
privileged information.
III. CONCLUSION
For all the reasons detailed herein, the “Defendants’ Motion to Compel Discovery”
(Docket No. 70) is ALLOWED IN PART and DENIED IN PART WITHOUT PREJUDICE. By March 2,
11
2016 or any other date agreed to by the parties, the defendants shall serve the plaintiff with an
Interrogatory requesting any non-privileged information regarding his mental health treatment,
including any diagnoses, the nature of his treatment (including any medications), the dates of
such treatment, and whether or not the plaintiff is seeking damages in connection with any
such diagnoses and treatment. The plaintiff shall provide a response to the defendants’
Interrogatory by March 9, 2016 or any other date agreed to by the parties. The motion is
otherwise DENIED without prejudice to renewal following the disclosure of experts, or at any
appropriate point in the proceedings, if it appears that the plaintiff is seeking to make
affirmative use of the privileged information.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?