Rodriguez v. Chelus, Herdzik, Speyer, & Monte, P.C.
DECISION AND ORDER granting 56 Motion to Compel. Signed by Hon. Jeremiah J. McCarthy on 3/3/17. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JENNIFER K. RODRIGUEZ,
DECISION AND ORDER
CHELUS, HERDZIK, SPEYER, & MONTE, P.C.,
Before the court is defendant’s motion to compel plaintiff to authorize the
production of her medical and/or mental health records .1 For the following reasons, the
motion is granted.
Plaintiff seeks actual and statutory damages for allegedly deceptive
communications by defendant in violation of the Fair Debt Collection Practices Act (“FDCPA”,
15 U.S.C. §1692 et seq.) and state law. Corrected Second Amended Complaint . She alleges
that “[d]ue in part to the deceptive communications . . . [she] has suffered from marital problems,
including fighting with her husband” (id., ¶67), that she “filed for a divorce against her husband”
but has since reconciled with him (id., ¶68), and that she “has suffered from anxiety and panic
attacks” (id., ¶69).
In opposing defendant’s motion, plaintiff argues that she seeks only “garden
variety emotional distress damages”, and that “a party does not put his or her emotional
condition in issue by merely seeking incidental, garden-variety, emotional distress damages,
without more.” Plaintiff’s Letter Brief , pp. 4, 7 (quoting Ruhlmann v. Ulster County
Bracketed references are to CM/ECF docket entries.
Department of Social Services, 194 F.R.D. 445, 450 (N.D.N.Y. 2000)). “Garden-variety
emotional distress has been described . . . as ordinary or commonplace emotional distress, that
which is simple or usual.” Id. at 7 (quoting Fitzgerald v. Cassil, 216 F.R.D. 632, 637 (N.D. Cal.
However, “panic attacks [and] anxiety . . . are not ‘garden-variety’ emotional
distress.” United States v. Barber, 2014 WL 2515171, *1 (W.D. Wash. 2014). As defendant
points out, both conditions are specifically listed in the Diagnostic and Statistical Manual of
Mental Disorders (Fourth Ed.). Defendant’s Letter Brief , p. 3. Moreover, plaintiff’s alleged
marital difficulties exceed the scope of “garden variety” emotional distress. See Barnello v.
Bayview Loan Servicing, LLC, 2015 WL 6165277, *2 (M.D. Fla. 2015) (“[p]laintiffs describe
being embarrassed and their [sic] being a ‘terrible stain on their marriage and family life’. These
claims are sufficient to put Plaintiffs[’] mental condition in controversy”).
Plaintiff argues that she “does not intend to offer medical evidence in support of
her claims. As such, plaintiff has not put her medical and/or mental health history or status at
issue in this case.” Plaintiff’s Letter Brief , p. 3. “The issue, however, is not how Plaintiff
intends to prove her emotional distress damages, but, rather Defendants' right to defend
themselves fully against Plaintiff's claims . . . . If a plaintiff seeks damages for alleged emotional
or psychological injuries, the defendant's case ought not be limited by the plaintiff's decision not
to introduce available medical or psychological testimony that bears directly on the truth of the
claim.” McKinney v. Delaware County Memorial Hospital, 2009 WL 750181, *5 (E.D. Pa.
Plaintiff also argues that since the parties’ settlement positions are only $5,000
apart, “there is not a significant amount in controversy in this case. It will cost the pro se
defendant more money than is presently at issue between the parties’ settlement positions to
depose the plaintiff and her husband, and to engage in expert discovery should this Court grant
its motion to compel the production of plaintiff’s privileged medical information”. Plaintiff’s
Letter Brief , p. 4. However, plaintiff has not agreed to limit her claim for actual damages if
the case does not settle,2 and the FDCPA itself does not limit the amount of actual damages that
can be awarded. Therefore, defendant is entitled to obtain the information necessary to prepare
itself for trial.
Finally, plaintiff argues that “to compel [her] to disclose her confidential and
privileged medical history would ensure that she would never seek to champion her own rights,
nor the rights of others, no matter how egregious or unlawful the conduct was”. Plaintiff’s Letter
Brief , p. 7. However, “plaintiff is considered the master of her complaint”. Vasura v.
Acands, 84 F. Supp. 2d 531, 535 (S.D.N.Y. 2000). Had she chosen to allege merely “garden
variety” emotional distress claims, I might not require her to disclose her medical or mental
health records. Having to elected to allege more serious claims, she cannot deprive defendant of
the opportunity to explore the basis for those claims.
For these reasons, defendant’s motion to compel  is granted.
Dated: March 3, 2017
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Plaintiff’s Initial Disclosures indicate that she seeks actual damages of $50,000. [58-1], p. 3.
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