Molina et al v. St. Louis, Missouri, City of et al

Filing 166

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion to compel is GRANTED in part and DENIED in part as set forth above. ECF No. 157 . Plaintiff shall execute medical authorizations within the parameters set forth in this Order. IT IS FURTHER ORDERED that the parties shall work together in good faith to ensure Ms. Vogels privacy with respect to all records produced, in a manner consistent with the Protective Order previously entered in this case (ECF No. 150 ). Signed by District Judge Audrey G. Fleissig on 6/26/2020. (JMP)

Case: 4:17-cv-02498-AGF Doc. #: 166 Filed: 06/26/20 Page: 1 of 6 PageID #: 2172

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SARAH MOLINA, et al.
Plaintiffs,
vs.
CITY OF ST. LOUIS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:17-cv-2498-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ motion to compel discovery with
respect to Plaintiff Christina Vogel’s medical records. ECF No. 157. For the reasons set
forth below, the motion will be granted in part and denied in part.
BACKGROUND
Plaintiffs filed this lawsuit on September 29, 2017, asserting retaliation in
violation of the First Amendment and excessive force in violation of the Fourth
Amendment, resulting from actions by the City of St. Louis, St. Clair County, Illinois,
and several police officers, during a civil protest on August 19, 2015. More specifically,
Plaintiffs claim that Defendants retaliated against them for peaceful protest activity and
used excessive force by shooting tear gas and pepper spray. As pertinent to the present
motion, Plaintiff Vogel claims that, due to this incident, she “experienced physical and
mental distress, including panic attacks and sensory flashbacks.” ECF No. 36, ¶¶81, 85.

Case: 4:17-cv-02498-AGF Doc. #: 166 Filed: 06/26/20 Page: 2 of 6 PageID #: 2173

During discovery, Defendants propounded interrogatories seeking information
regarding Vogel’s medical history beginning five years before the incident. As relevant
here, Vogel’s response included the following providers: (1) Deveraux Counseling,
where Vogel received counseling between 2016 and 2018; (2) the Kelsey-Seybold
Clinic, where Vogel received treatment sometime between 2010 and 2012 for “shortness
of breath that was never resolved;” and (3) the Houston Northwest Medical Center,
where Vogel visited the emergency room sometime between 2010 and 2012.
Subsequently, in her deposition, Vogel was asked about panic attacks prior to the
incident. Vogel acknowledged that she previously had difficulty breathing (referring to
the episode around 2010-2012), but she did not attribute it to anxiety, and she never
underwent any tests for asthma or otherwise, stating, “the doctors never really figured out
what that was.”
Defendants ask the Court to order Vogel to execute authorizations for the release
of all medical records from the foregoing three providers. In support of their motion,
Defendants assert that (1) Vogel’s records are relevant to ascertain whether there are
alternate causes of her emotional distress and associated symptoms (e.g., shortness of
breath) unrelated to Defendants’ alleged conduct and (2) Vogel waived privilege by
putting her health at issue in this case. Defendants note that the protective order entered
in this case (ECF No. 150) ensures Vogel’s privacy with respect to the records sought.

2

Case: 4:17-cv-02498-AGF Doc. #: 166 Filed: 06/26/20 Page: 3 of 6 PageID #: 2174

Vogel responds that her allegation of garden-variety emotional distress 1 does not
place a decade of her health history at issue; she did not waive privilege, and her records
should be deemed irrelevant. ECF No. 159. She states that she does not intend to
present any evidence of difficulty breathing at any time after the incident, so Defendants’
theory of alternate causation is misplaced. Additionally, Vogel contends that
Defendants’ requests for production were not properly served as required by Rule 34.
DISCUSSION
The Federal Rules of Civil Procedure provide for broad discovery. Under Rule
26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense.” Thus, although the Federal Rules permit broad
discovery, the discovery sought must be nonprivileged and relevant.
The Supreme Court has recognized a psychotherapist-patient privilege to protect
confidential communications, based on the “imperative need for confidence and trust” in
this relationship. Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). However, this privilege
can be waived by a plaintiff “placing her medical condition at issue,” which includes
claims of “emotional distress.” Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.
2000).
Defendants primarily rely on Eggering v. MHP, Inc., No. 4:10CV01794 AGF,
2011 WL 6029956, at *2 (E.D. Mo. Dec. 5, 2011). There, this Court granted a motion to

1

The phrase “garden variety emotional distress” is used to describe “ordinary and
commonplace emotional distress” that is “simple or usual,” as compared to complex
distress resulting in a specific psychiatric disorder. Eggering v. MHP, Inc., No.
4:10CV01794 AGF, 2011 WL 6029956, at *2 (E.D. Mo. Dec. 5, 2011).
3

Case: 4:17-cv-02498-AGF Doc. #: 166 Filed: 06/26/20 Page: 4 of 6 PageID #: 2175

compel documents concerning treatment that the plaintiff had received for emotional
distress prior to the termination of her employment as potentially relevant to whether
there may have been other causes of her emotional distress. The Court is not persuaded
that Eggering is entirely on point here. In that case, the sought documents related
specifically to the plaintiff’s prior treatment for emotional distress. Here, Defendants
seek Vogel’s physical health records from medical providers consulted for
breathlessness; these are not clearly “documents related to prior treatment for emotional
distress,” as in Eggering.
Vogel relies on cases drawing this distinction. For instance, in Holter v. Wells
Fargo & Co., a disability discrimination case, the plaintiff claimed disability based on her
mental impairments and sought significant damages for emotional distress. 281 F.R.D.
340, 342 (D. Minn. 2011). The defendant sought production of the plaintiff’s medical
records, asserting that she placed her mental, physical, and emotional health in
controversy. The plaintiff countered that she had not placed her physical health in
controversy, and her garden-variety emotional distress claim did not open the door for
unfettered access to her entire medical file. The district court ruled that the defendant
was entitled to obtain any pre-claim records regarding the plaintiff’s psychological issues
but not regarding her physical health, as that information had no bearing on her claims.
Id. at 343.
Here, Vogel has placed her mental health at issue and waived the psychotherapistpatient privilege. See Schoffstall, 223 F.3d at 823. The Court will grant Defendants’
motion to compel to the extent they seek production of Vogel’s treatment with Devereux
4

Case: 4:17-cv-02498-AGF Doc. #: 166 Filed: 06/26/20 Page: 5 of 6 PageID #: 2176

Counseling after August 19, 2015. However, the Court finds unreasonably overbroad
Defendant’s request for all of Vogel’s physical health records from more than three years
prior to the incident. See ECF No. 158-3. Therefore, the Court will limit the scope of
discovery of Vogel’s pre-incident medical records to only those clearly relating to any
treatment for emotional distress or difficulty breathing. While Defendants are entitled to
review such records to determine themselves whether Vogel’s breathlessness might have
been attributable to anxiety pre-dating the incident, the Court reserves for later
consideration whether Defendants may argue such a connection at trial.
As for the mechanics of production, Vogel claims that she is unable to produce
responsive documents herself because she has none in her possession, while she
simultaneously refuses to sign releases enabling Defendants to obtain the documents
directly from the providers. This Court has previously ordered a party to execute releases
within the scope of the Court’s order compelling production. Shikapwashya v. Urban
League of Metro. St. Louis, No. 4:17-CV-01961-AGF, 2018 WL 3575113, at *2 (E.D.
Mo. July 25, 2018). Given that the entirety of Vogel’s post-incident records from
Devereux Counseling are discoverable, the Court will order Vogel to sign a release as to
those documents. With respect to any records from Kelsey-Seybold Clinic or Houston
Northwest Medical Center falling within the scope of this order, i.e., reflecting preincident treatment for emotional distress or difficulty breathing, Vogel will be ordered to
sign a release for authorization within these parameters, absent the parties’ mutual
agreement to proceed otherwise.

5

Case: 4:17-cv-02498-AGF Doc. #: 166 Filed: 06/26/20 Page: 6 of 6 PageID #: 2177

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant’s motion to compel is GRANTED
in part and DENIED in part as set forth above. ECF No. 157. Plaintiff shall execute
medical authorizations within the parameters set forth in this Order.
IT IS FURTHER ORDERED that the parties shall work together in good faith to
ensure Ms. Vogel’s privacy with respect to all records produced, in a manner consistent
with the Protective Order previously entered in this case (ECF No. 150).

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 26th day of June, 2020.

6