Shaffer et al v. Toyota Motor Corporation et al

Filing 75

ORDER denying 69 Toyota Defendants' Motion to Compel. If Plaintiffs attempt to introduce evidence of mental distress beyond the items of damage recoverable under the wrongful death statute, the Court will revisi t whether the exception outlined in § 2503(D) applies or whether Plaintiffs have waived the privilege. The Court reminds the parties of their obligation under LCvR37.1 to confer in good faith and make a sincere attempt to resolve discovery disputes before seeking court intervention. See Order for details. Signed by Judge David L. Russell on 03/26/2024. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NICK SHAFFER and CHARLA SHAFFER, )
Individually, and NICK AND CHARLA
)
SHAFFER, as Parents and Next Friends of )
HOPE SHAFFER, Deceased,
)
)
Plaintiffs,
)
)
v.
)
)
TOYOTA MOTOR CORPORATION,
)
TOYOTA MOTOR NORTH AMERICA, )
INC., TOYOTA MOTOR ENGINEERING )
& MANUFACTURING NORTH
)
AMERICA, INC., TOYOTA MOTOR
)
MANUFACTURING MISSISSIPPI, INC., )
TOYOTA MOTORSALES, U.S.A., INC., )
GULF STATES TOYOTA, INC., AND
)
BOB HOWARD MOTORS, INC., d/b/a
)
BOB HOWARD TOYOTA,
)
)
Defendants.
)

Case No. 5:22-cv-00151-R

ORDER
This action arises from a vehicle collision that resulted in the death of Plaintiffs’
daughter, Hope Shaffer. In their operative pleading [Doc. No. 1-1], Plaintiffs allege that
Hope was riding in the back seat of a 2020 Toyota Corolla when the vehicle was rearended, causing the front passenger seat to collapse backwards and the front passenger’s
head to collide with Hope’s head. Plaintiffs assert claims for strict products liability and
negligence and seek damages pursuant to Oklahoma’s wrongful death statute, Okla. Stat.
tit. 12, §§ 1053, 1055.
Now before the Court is the Toyota Defendants’ Motion to Compel [Doc. No. 69]
seeking responses to requests for two categories of information: (1) Hope’s dental
providers and records and (2) Plaintiffs’ pre- and post-accident mental health records. In
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their response brief [Doc. No. 71], Plaintiffs state they are agreeable to producing Hope’s
dental records, and that issue is therefore moot. Plaintiffs object to producing their mental
health records, claiming they are privileged under Oklahoma law.
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case[.]” Confidential communications between
a patient and the patient’s psychotherapist for the purpose of diagnosis and treatment are
privileged under Oklahoma law. Okla. Stat. tit. 12, § 2503. However, an exception to this
privilege exists where “the patient relies upon” their mental or emotional condition “as an
element of the patient’s claim or defense[.]” Id. at § 2503(D)(3). The Toyota Defendants
argue that Plaintiffs’ psychotherapy records fall into this exception or, alternatively, that
Plaintiffs’ have waived the privilege by requesting more than garden-variety damages for
mental and emotional distress. Neither of these arguments is persuasive under the
circumstances of this case.
First, the exception to the psychotherapist-patient privilege codified in § 2503(D)
does not apply because “grief and loss of companionship are items of recovery in a
statutory wrongful death action, not elements of a claim or cause of action.” Ellis v. Gurich,
73 P.3d 860, 860 (Okla. 2003). Thus, in Ellis, the Oklahoma Supreme Court refused to
permit discovery into the plaintiffs’ mental health records where the plaintiffs sought
“recovery on only those items of damage which are allowed by [the wrongful death]
statute” and no expert witness was expected to testify. Id. Similarly, here, Plaintiffs have
stipulated that they are only seeking damages for the items of recovery listed in the
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wrongful death statute and will not present expert or other testimony that Hope’s death
exacerbated Plaintiffs’ mental health issues. Because Plaintiffs have limited their claim to
the items of recovery listed in the wrongful death statute, Plaintiffs’ psychotherapy records
are privileged and the exception in § 2503(D) does not apply. Id.; see also Shreck v. N. Am.
Van Lines, Inc., No. 05-CV-601-TCK-PJC, 2006 WL 1720545, at *1 (N.D. Okla. June 19,
2006) (holding that “where a parent’s claim for grief and emotional distress from the loss
of a child is limited to that flowing from the loss of love and companionship of the child
and the destruction of the parent-child relationship, the exception contained in §
2503(D)(3) does not apply”); Moody v. Ford Motor Company, Case No. 03-CV-784-JOEPJC, at 3 (N.D. Okla. Aug. 10, 2003) (“Plaintiffs’ claim for grief and emotional distress is
limited to that flowing from the loss of the love and companionship of their son and the
destruction of the parent-child relationship. The emotional distress suffered by the Plaintiff
parents is thus an item of recovery under § 1055, not an element of their claim.”)
Second, and for similar reasons, Plaintiffs have not waived the privilege that applies
to their psychotherapy records. “Where a Plaintiff claims ‘garden variety’ or ‘generic’
mental distress of the sort that would be suffered by an ordinary person in similar
circumstances, courts have held there is no waiver of the privilege.” Shreck, 2006 WL
1720545 at *2. Given Plaintiffs’ representation that they will not elicit testimony regarding
the impact of Hope’s death on their mental health, Plaintiffs appear to be seeking only
“garden variety” emotional distress damages and have not put their psychotherapy records
at issue in the case. Id.; see also Ellis, 73 P.3d at 860 (holding that “the filing of a wrongful
death action is not ipso facto a waiver of the psychotherapist-patient privilege held by a
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plaintiff”); Moody, Case No. 03-CV-784-JOE-PJC at 4 (finding that plaintiffs’ claim for
grief did not constitute a waiver of the psychotherapist-patient privilege where they did not
plan to introduce “any evidence of counseling or treatment, special mental or emotional
disability, or worsening of any pre-existing condition”). Of course, if Plaintiffs attempt to
introduce evidence of mental distress beyond the items of damage recoverable under the
wrongful death statute, the Court will revisit whether the exception outlined in § 2503(D)
applies or whether Plaintiffs have waived the privilege.
Accordingly, the Toyota Defendants’ Motion to Compel [Doc. No. 69] is DENIED.
Additionally, given that the parties’ briefing entirely resolved the first issue raised by
Defendants’ motion, the Court reminds the parties of their obligation under LCvR37.1 to
confer in good faith and make a sincere attempt to resolve discovery disputes before
seeking court intervention.
IT IS SO ORDERED this 26th day of March, 2024.

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