Mitchell v. Siersma et al
DECISION & ORDER Plaintiff's motion for a protective order precluding discovery of Mitchell's mental health history and treatment 52 is granted. Signed by Hon. Marian W. Payson on 7/14/2017. Copy of this Decision & Order sent by First Class Mail to plaintiff Patrick Michael Mitchell on 7/14/2017 to his address of record. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICK MICHAEL MITCHELL,
DECISION & ORDER
ROBERT SIERSMA, et al.,
On September 7, 2016, plaintiff Patrick Mitchell (“Mitchell”) moved to preclude
discovery of his mental health history and treatment.1 (Docket # 52). Defendants opposed the
motion. (Docket ## 55, 56). Following oral argument on October 27, 2016, and in accordance
with the Court’s directions at argument, the parties submitted supplemental affidavits, which this
Court has reviewed. (Docket ## 58-60). For the reasons explained below, Mitchell’s motion is
Mitchell filed this action on July 15, 2013, under 42 U.S.C. § 1983, asserting
claims against all of the defendants for unlawful arrest and imprisonment, illegal entry into his
dwelling, and falsification of an arrest report, and claims against defendants Dunham, Donovan
and the Village of Penn Yan for malicious prosecution. (Docket # 30). Mitchell alleges that
defendants Siersma and Soprano, Investigators with the Monroe County District Attorney’s
Office, and defendant Dunham, a Sergeant with the Penn Yan Police Department, entered his
In addition to the pending motion, Mitchell also moved to compel depositions. (Docket # 41). That
motion was denied. (Docket # 57).
apartment in Yates County without his permission, representing that they had a warrant, although
they did not produce it. (Id. at 4). He was handcuffed and transported from Yates County to
Monroe County, where he was incarcerated for three days before being released on bail. (Id.).
Mitchell further alleges that Siersma falsified the arrest report by indicating that Mitchell had
been arrested in Rochester. (Id.). He claims that Donovan, an Investigator with the PennYan
Police Department, threatened him with unlawful arrest and provided incomplete information to
defendant Siersma that led to Mitchell’s unlawful arrest. (Id.). In his second claim, Mitchell
alleges that the Village of Penn Yan failed to adequately train Dunham and Donovan. (Id. at 4).
Mitchell claims that he suffered emotional distress as a result of the events at
issue in this lawsuit. (Docket # 52 at 1). During his deposition, Mitchell testified that he had
treated with a psychiatrist for emotional injuries he sustained as a result of defendants’ conduct.
(Docket # 55 at ¶ 6). He refused to answer follow-up questions relating to the matters he
discussed with his psychiatrist. (Docket ## 55 at ¶ 6; 55-1). He did testify that since his arrest,
he “always, always, always [has to] make sure the outside door [to his apartment] is latched.”
(Docket # 55-1 at 3).
Following his deposition, Mitchell filed the pending motion for an order
precluding further discovery, including production of his mental health records, on the grounds
that such evidence is protected by the psychotherapist-patient privilege. (Docket # 52). In his
motion, he represents that he “does not plan to present any expert witness [testimony] regarding
claims for mental or emotional [distress].” (Docket # 52). At oral argument, Mitchell stated that
he was only seeking “garden variety” emotional distress damages. (Docket # 60). Following
argument, Mitchell submitted a signed statement, representing:
I understand that my claim for emotional distress damages
is limited to “garden variety” emotional distress damages,
meaning nothing more than the distress that any healthy,
well-adjusted person would likely feel as a result of the
I will not claim at trial that I suffered severe emotional
distress or a diagnosed mental health condition;
I will not offer at trial any psychological or medical
testimony or records to support my clams of emotional
distress, including my own testimony that I sought
treatment from a mental health professional; and,
I withdraw any prior claim for physical injury or
non-garden variety emotional distress damages.
Defendants oppose Mitchell’s motion for a protective order, arguing that
Mitchell’s claimed emotional distress is more severe than garden variety distress – a fact that
results in a waiver of the psychotherapist-patient privilege. (Docket # 59). They argue that the
changes in his behavior following his arrest and incarceration that persist to the present day –
“most notabl[y] his continuing to lock doors” – are inconsistent with garden variety distress. (Id.
at 2). In other words, defendants contend that Mitchell, despite his representation to the
contrary, is indeed seeking to recover damages for emotional distress beyond “garden variety”
distress, thus entitling defendants to pursue discovery relating to his mental health treatment.
I addressed and thoroughly discussed the applicability and contours of the
psychotherapist privilege to emotional distress claims in E.E.O.C. v. Nichols Gas & Oil, Inc.,
256 F.R.D. 114, 118-21 (W.D.N.Y. 2009). I continue to adhere to the reasoning articulated in
Nichols. See also Misas v. North-Shore Long Island Jewish Health Sys., 2016 WL 4082718,
*3-5 (S.D.N.Y. 2016) (citing Nichols with approval); Briganti v. Conn. Tech. High Sch. Sys.,
2015 WL 728518, *4-5 (D. Conn. 2015) (same); Jacobs v. Conn. Cmty. Tech. Coll., 258 F.R.D.
192, 195-97 (D. Conn. 2009) (same). As in Nichols, plaintiff “has explicitly disavowed any
emotional distress claims other than garden variety claims”2 and “does not intend to offer at trial
any psychological or medical testimony or records to support [his] claims of emotional distress.”
E.E.O.C v. Nichols Gas & Oil, Inc., 256 F.R.D. at 121. As described above, Mitchell has
submitted a signed statement to the Court explicitly limiting his emotional distress claims to
those for “garden variety” emotional distress, agreeing that he will not offer psychological or
medical testimony or records to support his claim and will not offer testimony that he treated
with a mental health provider, and disavowing and withdrawing any claims for physical or
non-garden variety emotional distress damages. (Docket # 60).
Despite these representations, defendants contend that Mitchell’s anticipated
testimony is consistent with a claim for significant, non-garden variety, emotional distress.
(Docket # 59). Defendants’ concern is apparently grounded in Mitchell’s testimony that he
continues to compulsively lock his apartment door. (Id.). Although most cases involving garden
variety emotional distress claims do not involve allegations of ongoing distress, the fact that a
plaintiff continues to experience ongoing symptoms does not necessarily elevate the claim
beyond garden variety. See, e.g., MacCluskey v. Univ. of Conn. Health Ctr., 2017 WL 684440,
*15 (D. Conn. 2017) (characterizing plaintiff’s claim as “fall[ing] in the garden variety category”
where it was based on her own testimony “describ[ing] how the experience had affected and
continues to affect her,” resulting in a continuing inability to trust others); Makinen v. City of
New York, 167 F. Supp. 3d 472, 497 (S.D.N.Y. 2016) (characterizing plaintiff’s claim as one for
So-called garden variety emotional distress claims generally “are simple and usual, do not refer to any
specific psychiatric disorder, and are the types of distress that any healthy, well-adjusted person would likely feel as
a result of being victimized.” Misas v. North-Shore Long Island Jewish Health Sys., 2016 WL 4082718 at *4.
“garden-variety” emotional distress damages where it was based on her testimony that “she
suffers from continuing anxiety, depression, restless legs, sleeplessness, and panic attacks as a
result of [d]efendants’ conduct . . . [and] ha[s] been prescribed anti-anxiety medication to treat
her symptoms[, which] she continues to take”).
In this case, I do not find that Mitchell’s expected testimony about his emotional
distress amounts to a claim for more than garden variety distress, particularly because it will not
be accompanied by medical evidence or testimony, evidence that he was diagnosed with a
psychiatric disorder, or evidence that his distress resulted in physical manifestations. See, e.g.,
MacCluskey v. Univ. of Conn. Health Ctr., 2014 WL 7404565, *1 (D. Conn. 2014) (“[a]n
allegation that a plaintiff suffers from and is claiming damages for a specific mental disorder or
condition may also elevate the claim beyond the garden variety type and waive the privilege”);
Menghi v. Hart, 745 F. Supp. 2d 89, 107-08 (E.D.N.Y. 2010) (plaintiff’s claim was more severe
than garden variety emotional distress where it was based on testimony of her mother and friend
regarding “the changes to her personality and behavior as a result of the events underlying this
case” and her psychologist’s testimony that “she will have residual anxiety for the rest of her
life”), aff’d, 478 F. Appx. 716 (2d. Cir. 2012); Kuper v. Empire Blue Cross & Blue Shield, 2003
WL 359462, *13 (S.D.N.Y. 2003) (rejecting defendant’s contention that plaintiff suffered no
more than garden variety distress where evidence established, among other things, that plaintiff
continued to suffer ongoing distress and “experienced a physical manifestation [of the distress]
in his significant weight loss”).
Of course, defendants are entitled to rely on Mitchell’s representations. In other
words, Mitchell may not offer evidence in this lawsuit, including his own testimony, that is
inconsistent with those representations and his claim for garden variety emotional distress
damages. See MacCluskey v. Univ. of Conn. Health Ctr., 2014 WL 7404565 at *2 (“at trial,
[plaintiff] will be bound by her representations to the [c]ourt that she will not offer evidence
regarding any mental or emotional disorders, severe emotional distress, or anything beyond the
so-called ‘garden variety’ emotional distress . . . ; [she] is also bound to her representation that
she will not be seeking to recover any costs for therapy”). Indeed, the district court may elect to
charge the jury that Mitchell is seeking only garden variety emotional distress damages and any
award for emotional distress damages must be limited to garden variety distress only.
For the foregoing reasons, plaintiff’s motion for a protective order precluding
discovery of Mitchell’s mental health history and treatment (Docket # 52) is GRANTED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
July 14, 2017
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