Woodall v. Pitchard et al
Filing
82
ORDER denying 48 Motion to Compel. Signed by Hon. Jonathan W. Feldman on 3/30/2012. (RJO)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRYAN WOODALL,
Plaintiff(s),
DECISION AND ORDER
08-CV-6228
v.
CORRECTION OFFICER GARY PITCHARD,
CORRECTION OFFICER SEAN WHITE,
CORRECTION OFFICER JEFF HAZARD,
JOHN DOE, Correction Officer #1 and
JOHN DOE, Correction Officer #2,
Defendant(s).
Preliminary Statement
Plaintiff brings the instant action pursuant to 42 U.S.C. §
1983 for alleged violations of her1 Eighth and Fourteenth Amendment
rights.
See Amended Complaint (Docket # 23).
Plaintiff alleges
that, inter alia, defendants subjected her to excessive force
amounting to cruel and unusual punishment.
Id.
Currently pending
before the Court is defendants’ motion to compel.
(Docket # 48).
Factual Background
With the instant motion, defendants seek to compel plaintiff
to provide a release authorizing the disclosure of all records of
medical treatment for mental illness, disorders and emotional
conditions.
1
(Docket # 48).
Defendants seek these records on
Plaintiff identifies herself as a transgender woman.
Accordingly, the Court will address plaintiff as a woman throughout
this Decision.
grounds that plaintiff put her mental health at issue in the
instant action by claiming psychological and emotional trauma and,
as a result, has waived the right to assert that her mental health
records
are
privileged.
In
response
to
defendants’
motion,
plaintiff asserted that she would provide an executed HIPAA release
authorizing
access
psychological,
and
to
her
records
emotional,
for
psychiatric,
“mental
and
health,
psychological
conditions, including treatment for post traumatic stress disorder”
but objected to and refused to authorize the release and disclosure
“of information relating to sexually transmitted diseases, AIDS or
HIV, or information about treatment for alcohol or drug abuse.”
See Docket # 51.
On June 30, 2011, the Court held a hearing and arguments were
heard from the parties.
During the hearing, plaintiff’s counsel,
Anthony Cecutti, Esq., advised the Court that he had not yet
reviewed plaintiff’s medical records and was not aware if they
contained
information
regarding
sexually
transmitted
diseases
(“STDs”), AIDS or HIV or information regarding alcohol and drug
abuse treatment.
The Court ordered plaintiff’s counsel to obtain
plaintiff’s records to review them to determine whether any such
information about STDs, HIV or AIDS existed.
The Court directed
Attorney Cecutti to file an affidavit with the Court within two
weeks (by July 14, 2011) to advise whether there was in fact an
issue surrounding plaintiff’s records – i.e. whether they contained
2
information about STDs, HIV or AIDS, which would require further
argument to determine whether the records should be disclosed.
On
August 1, 2011 and September 2, 2011, the Court granted plaintiff’s
requests
for
extensions
of
time
to
comply
with
the
Court’s
directions during the June 30th hearing, and ultimately extended the
time to obtain and review plaintiff’s medical records and to submit
an affidavit to the Court to October 2, 2011.
See Dockets ## 57,
63. By Order dated November 10, 2011, the Court again extended the
time
for
Attorney
Cecutti
to
obtain,
review
and
produce
to
defendants plaintiff’s mental health records. See Docket # 65. In
the November 10th Order, the Court advised that “[i]f the materials
are not produced within thirty days, defense counsel may move to
preclude or limit plaintiff’s damage proof.”
Id.
On December 12, 2011, having not yet received plaintiff’s
mental health records, defendants moved to dismiss the instant
matter or in the alternative to preclude plaintiff “from arguing or
admitting any evidence at trial pertaining to emotional damages.”
See Docket # 68.
Defendants argue that plaintiff’s “records may
have
impact
significant
on
damages,
by
showing
a
lack
of
psychological harm, or that any psychological harm suffered by
Plaintiff as a result of time spent in prison was not attributable
to this incident.”
See id. at p. 4.
Defendants acknowledge that
“[t]he records may have no bearing on the case at all,” but assert
that there is a possibility that the records “may even support
3
Defendants’ case” because “Plaintiff has a substantial history of
self-harm, and may have confided in the doctors that all or some of
the injuries were self-inflicted.”
Id.
In response to defendants’ motion, Attorney Cecutti advised
the Court that he “eventually received” plaintiff’s records and
based on his review of the records “Plaintiff now withdraws her
claim for emotional damages.”
76) at ¶ 6.
See Plaintiff’s Response (Docket #
Attorney Cecutti further informed the Court that
“Plaintiff intends to proceed solely on her claim of damages
related to the physical injuries she sustained.”
Id. at ¶ 7.
Attorney Cecutti advised that plaintiff’s mental health records “do
not contain relevant information as to the use of force” claims
asserted against defendants and “there are no references of the
incident in these records.”
Id. at ¶ 8.
In reply in further
support of their motion to dismiss, defendants maintain that they
are
still
Plaintiff’s
“entitled
to
psychological
an
executed
records”
release
even
to
though
withdrawn her claims for emotional damages.
receive
all
plaintiff
has
See Declaration of
Hillel Deutsch, Esq. (Docket # 78) at ¶ 8.
Discussion
“It is well settled that a party waives [her] doctor-patient
privilege when [she] puts [her] medical condition into issue.”
Ottawa Office Integration Inc. v. FTF Bus. Sys., Inc., 132 F. Supp.
4
2d 215, 220 (S.D.N.Y. 2001); see also In re Sims, 534 F.3d 117,
132, 134 (2d Cir. 2008)(waiver is required "in the interests of
fairness," so that a party cannot "use the privilege both as a
shield and a sword")(internal quotation marks omitted).
In any
lawsuit where the plaintiff is alleging physical and emotional
injuries, it is standard procedure for the judge to direct the
plaintiff to sign a HIPAA-compliant “authorization for the release
of [her] complete medical, pharmacy, psychiatric or psychological
treatment or counseling records.”
Smith v. Franklin Hosp. Med.
Ctr., No. 04-CV-3555(LDW)(ARL), 2005 WL 2219294, at *1 (E.D.N.Y.
Sept. 13, 2005).
However, in In re Sims, the Second Circuit instructed “that a
plaintiff does not forfeit [her] psychotherapist-patient privilege
merely by asserting a claim for injuries that do not include
emotional damage” and “a plaintiff does not forfeit that privilege
by merely stating that [s]he suffers from a condition such as
depression or anxiety for which [s]he does not seek damages.”
F.3d at 134.
534
The Court held that “a plaintiff may withdraw or
formally abandon all claims for emotional distress in order to
avoid forfeiting [her] psychotherapist-patient privilege.”
Id.
Thus, a plaintiff may continue to protect the privacy of her mental
health records, but only at the expense of her mental health claims
that go beyond garden variety emotional distress.
Id. at 142
(plaintiff withdrew “any claim to damages for mental injury or any
5
non-garden-variety emotional injury,” and was not required to
disclose his mental health records).
Plaintiff
here
has
advised
the
Court
that
she
formally
“withdraws her claim for emotional damages” and “intends to proceed
solely on her claim of damages related to the physical injuries she
sustained.”
See Docket # 76 at ¶¶ 6-7.
Defendants assert that
they are entitled to plaintiff’s mental health records despite the
withdrawal of plaintiff’s claims for emotional damages and argue
that they are entitled to know “the full extent of [plaintiff’s]
complex
psychological
psychological
veracity.”
history
history”
contains
because
issues
“Plaintiff’s
relating
to
complex
memory
or
See Declaration of Hillel Deutsch (Docket # 78) at ¶¶
7-9. On the current record, I find the defense counsel’s arguments
unpersuasive as there is insufficient evidence before the Court to
support the position that plaintiff’s mental health records are
still relevant. Though defendants argue in their Memorandum of Law
that “Plaintiff has a substantial history of self-harm” and that
they need her mental health records to determine whether her
physical injuries were self-inflicted, such claims are made in a
legal brief and are not supported by affidavit or other factual
documentation.
re
Sims,
“a
Moreover, as the Second Circuit instructed in In
party's
psychotherapist-patient
privilege
is
not
overcome when his mental state is put in issue only by a another
party.”
545 F.3d at 134 (emphasis added).
6
Since plaintiff has
formally withdrawn and abandoned her mental health claims for
emotional injuries, she may avoid forfeiting her psychotherapistpatient privilege.
See id.
Defendants’ attempt to unilaterally
put her mental state in issue by asserting in a legal brief that
plaintiff herself may be responsible for the injuries she suffered
is insufficient to overcome her psychotherapist-patient privilege.
Accordingly, the Court hereby Orders that defendants’ motion to
compel plaintiff’s mental health records (Docket # 48) is denied.
If defense counsel does in fact have evidence that plaintiff caused
her own injuries in the claims she asserts against defendants,
defendants may file a new motion to compel attaching such evidence.
Conclusion
Defendants’ motion to compel (Docket # 48) is denied.
SO ORDERED.
______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: March 30, 2012
Rochester, New York
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