Swanger et al v. Warrior Run School District et al
MEMORANDUM OPINION - For the foregoing reasons, the Court will deny Plaintiffs' Motion for In Camera Review (Doc. 124), A separate Order follows.Signed by Honorable Robert D. Mariani on 12/31/14. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELAINE AND VICTOR SWANGER,
as parents and legal guardians of
B.J.S., and B.J.S.
SCHOOL DISTRICT, et aI.,
I. INTRODUCTION AND PROCEDURAL HISTORY
Presently before the Court is a Motion for In Camera Review (Doc. 124) filed by
Plaintiffs, Elaine and Victor Swanger and their child, B.J.S. On June 30,2014, in response
to Plaintiffs' motion, the Court issued an Order requiring Defendant, Diversified Treatment
Alternatives, Inc. ("DTA"), to produce the specific documents contained in the Philadelphia
Diversified Treatment Claim File Privilege Log identified by Plaintiffs in their motion (see
Doc. 124, Ex. B, C, D) for an in camera inspection by this Court and deferring a
determination of Plaintiffs' motion until the Court received the requested documents. (Doc.
138).1 DTA promptly produced the documents at issue. As a result, the Court issued an
1 While the Court's June 30, 2014 Order deferred a determination of Plaintiffs' motion for in camera
review until we had received the documents at issue from DTA and could determine whether "compelling
evidence" that the psychotherapist-patient privilege had been waived with respect to any of the requested
documents, the Order also stated that Plaintiffs' motion was granted. (Doc. 138). Since we have
determined in the present opinion that the psychotherapist-patient privilege has not been waived except for
Order confirming that the information outlined by DTA in the Privilege Log accurately
reflected the contents of the records, but requesting supplemental briefs by the parties
detailing whether any of the documents were subject to any confidentiality protections or
privileges under federal or state statute or at common law, other than the psychotherapistpatient privilege provided under 42 PA. CONS. STAT. ANN § 5944, and how any, or all, of the
documents were, or were not, relevant to Plaintiffs' claims. (Doc. 144).
Plaintiffs' motion for in camera review enumerated specific documents, or categories
of documents, listed in the Philadelphia Diversified Treatment Claim File Privilege Log.
Specifically, Plaintiffs requested the listed (1) Psychological Evaluations, Psychiatric
Evaluations, Neuropsychological Assessments, and Psychological/Psychiatric Evaluations,
arguing that "at the very least, these documents contain non-privileged portions as
determined with respect to the October 25, 2010 Psychological Evaluation"; (2) Case Notes
and Summaries, claiming that these documents "would largely contain information other
than communications between Defendant Mattison and his psychiatrist, such as opinions,
observations, or diagnosis, which is not protected by the [psychotherapist-patient] privilege";
and (3) an email from Erik Cummings to Karen Bloom, because "the document is not likely
to contain communications between Defendant Mattison and his psychiatrist and therefore
not protected by the privilege." (Doc. 125, at 4).
portions of the October 25, 2010 psychological evaluation and further that the documents in question are
protected from disclosure under the Mental Health Procedures Act, our Order is vacated to the extent that it
indicated that Plaintiffs' motion (Doc. 124) was granted.
As we previously stated in the Court's Memorandum Opinion denying Plaintiffs'
Motion for Reconsideration of our March 17,2014 Order (Doc. 120), a psychotherapist may
not invoke the federal psychotherapist-patient privilege on behalf of his or her patient.
However, while DTA alone may not invoke this privilege on behalf of Mattison, absent a
waiver by Mattison or a decision by this Court that one of more of the documents at issue,
or portions of those documents, are not protected by the psychotherapist-patient privilege or
any other applicable federal or state statute or at common law, DTA has a legal and ethical
duty to deny the Swangers access to the requested documents listed within the Privilege
Log. It is undisputed that Mattison never signed a written waiver releasing any treatment
records or documents in DTA's possession to Plaintiffs. Therefore, the issues before this
Court are what protections, if any, apply to the requested documents and whether Mattison
can be deemed to have waived by implication those protections with respect to some, or all,
of his treatment records. For the reasons that follow, we have determined that all of the
documents requested by Plaintiffs are protected from disclosure by the psychotherapist
patient privilege and/or the Mental Health Procedures Act and that Mattison did not waive
any privilege such as to compel DTAto provide Plaintiffs with any of the requested
documents. Accordingly, we will deny Plaintiffs' motion for in camera review.
As athreshold issue, the Court is governed by Federal Rule of Evidence 501 which
The common law - as interpreted by United States courts in the light of
reason and experience - governs a claim of privilege unless any of the
following provides otherwise: the United States Constitution; a federal statute;
or rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for
which state law supplies the rule of decision.
FED. R. EVID. 501. Consequently, while federal law recognizes a psychotherapist-patient
privilege, see Jaffee v. Redmond, 518 U.S. 1,116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the
extent and specific contours of this established privilege are dictated by Pennsylvania law,
subject to the Supreme Court's delineation that the alleged privileged communications were
made (1) confidentially, (2) between a licensed psychotherapist and her patient, and (3) in
the course of diagnosis or treatment, id. at 15. In light of these requirements, the Supreme
Court also expressly rejected the necessity of a balancing analysis of the evidentiary need
for disclosure of the psychotherapist-patient communications against the patient's privacy
interests. Id. at 7,17.
Psychotherapist·Patient Privilege Under 42 PA. CONS. STAT. ANN. § 5944
In the Commonwealth of Pennsylvania, the psychotherapist-patient privilege statute
No psychiatrist or person who has been licensed under the act of March 23,
1972 (P.L. 136, No. 52), to practice psychology shall be, without the written
consent of his client, examined in any civil or criminal matter as to any
information acquired in the course of his professional services in behalf of
such client. The confidential relations and communications between a
psychologist or psychiatrist and his client shall be on the same basis as those
provided or prescribed by law between an attorney and client.
42 PA. CONS. STAT. ANN. § 5944.
While exceptions exist to the patient-psychotherapist privilege, "[tJhe law in
[PennsylvaniaJ makes clear that the privilege accorded confidential communications
between the client and the psychotherapist must prevail under most circumstances." Com.
Simmons, 719 A.2d 336, 341 (Pa. Super. ct. 1998). Cf. Jaffee, 518 U.S. at 18 n.19
("Although it would be premature to speculate about most future developments in the
federal psychotherapist privilege, we do not doubt that there are situations in which the
privilege must give way, for example, if a serious threat of harm to the patient or to others
can be averted only by means of a disclosure by the therapist"}.2 Pennsylvania Courts
therefore look at several factors in determining what information contained in the psychiatric
reports is protected by the psychotherapist-patient privilege.
[IJt is clear that the privilege is designed to protect confidential
communications made and information given by the client to the
psychotherapist in the course of treatment. The psychiatric file is imbued with
the privilege because it might contain such confidential information. However,
2 For example,
the psychotherapist-patient privilege:
[D]oes not extend to information regarding the occurrence of treatment, including "whether
a psychotherapist treated [him], the dates of such treatment, and the length of treatment
on each date." United States v. Sturman, No. 96 CR. 318, 1998 WL 126066, at *4 n. 6
(S.D.N.Y. Mar. 20, 1998). See also Jackson v. Chubb Corp., 193 F.R.D. 216, 219 n. 4
(D.N.J. 2000) (identity of health care provider and dates of treatment not
privileged); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 230 (D. Mass. 1997) ("Facts
regarding the very occurrence of psychotherapy, such as the dates of treatment, are not
Perry v. City of New Haven, 2012 WL 3887061, at *2 (D. Conn. Sept. 6, 2012).
Here, while the Swangers may be entitled to this category of basic information, they have not
stated adesire or need for such disclosure to the extent that they do not already have the information.
Furthermore, there is no indication that "a serious threat of harm to the patient or to others can be averted
only by means of a disclosure by the therapist", as suggested would be necessary by the Supreme Court,
see Jaffee, 518 U.S. at 18 n.19.
the privilege is not designed to specifically protect the psychotherapist's own
opinion, observations, diagnosis, or treatment alternatives particularly when
such information finds its way beyond the client's personal file. While such
information may be protected from disclosure by some other privilege, we
decide that the § 5944 privilege is designed to protect disclosures made by
the client. Having said this, we need to look to the precise nature of the files
[the treatment facility] seeks to protect, and their actual role in the treatment
Simmons, 719 A.2d at 341. Plaintiffs rely on this well-established case law in Pennsylvania,
and state that "the psychiatric-patient privilege is a testimonial privilege that does not protect
opinions, observations or diagnoses", to assert that certain documents listed in the
Philadelphia Diversified Treatment Claim File Privilege Log are not subject to the asserted
privilege. (Doc. 125, at 2). This statement seemingly concedes that certain documents, or
portions thereof, are privileged to the extent they contain confidential communications
made, and information given, by Mattison to his psychotherapist(s) in the course of his
Of critical importance, the Psychological Evaluations, Psychiatric Evaluations,
Neuropsychological Assessments, and Psychological/Psychiatric Evaluations, as well as the
case notes and summaries produced by DTA were beyond any serious doubt completed in
the course of diagnosis or treatment. And, while the case law indicates that the opinions,
observations, diagnosis, and treatment alternatives outlined by the psychotherapists
who interviewed and spoke with Mattison during his treatment at DTA may not be privileged
under Section 5944, such documents, and the information contained therein, as well as all
other documents Plaintiffs request be reviewed in camera by this Court, are nevertheless
entirely protected from disclosure by a different privilege, specifically, the Mental Health
Procedures Act, 50 P.S. § 7101, et seq.3
B. Protection Under The Mental Health Procedures Act
In Defendants DTA and Alvin Weaver's supplemental brief, Defendants argue that
"even if this Court finds that the documents are not protected by the psychotherapist-patient
privilege, they are still protected from disclosure under the [Mental Health Procedures Act]".
(Doc. 145, at 12).
The Mental Health Procedures Act ("MHPA") "establishes rigl1ts and procedures for
all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all
voluntary inpatient treatment of mentally ill persons." 50 P.S. § 7103. The MHPA provides
broad protection for the confidentiality of records, specifically:
All documents concerning persons in treatment shall be kept confidential and,
without the person's written consent, may not be released or their contents
disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of
patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or
oral, be disclosed to anyone without such written consent.
3 To the extent that Plaintiffs argue that all, or part, of the Psychological Evaluations, Psychiatric
Evaluations, Neuropsychological Assessments, and Psychological/Psychiatric Evaluations have been
waived due to DTA's disclosure of the October 25, 2010 report, we refer back to the Court's initial
determination in its March 17, 2014 and June 3,2014 Orders (Docs. 109, 120) in which we strictly limited
any waiver of the privilege to the October 25 Psychological Evaluation, and only to the extent to which the
information in the evaluation pertained to historical information that was also addressed in Mattison's prior
deposition testimony; as well as the fact that DTA alone could not waive the privilege absent a waiver by
50 P.S. § 7111 (a). See also Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 465 (3d Cir.
1996W[U]nlike conventional privileges that apply only to certain communications, section
111 of the MHPA creates a much broader protection, forbidding the disclosure of any
document 'concerning persons in treatment' regardless of the contents of that
document. '}(emphasis in original); Zane v. Friends Hosp., 836 A.2d 25, 32 (Pa.
2003)(Section 7111 "applies to all documents regarding one's treatment, not just medical
records.")(emphasis in original). The Act therefore creates "an absolute confidentiality
privilege against the disclosure of documents that 'concern persons in treatment.'"
Hahnemann, 74 F.3d at 465. "All documents relating to a person in treatment are
confidential unless one of the statutory exceptions applies or the patient has consented in
writing to the release of the documents." Christy ex reI. Christy V. Wordsworth-at-Shawnee,
749 A.2d 557, 559-560 (Pa. Cmwlth. 2000)(citing Johnsonbaugh
Oep't of Public
Welfare, 665 A.2d 20 (Pa. Cmwlth. 1995), aff'd, 701 A.2d 1357 (Pa. 1997)). "In fact, with
the exception of cases in which the statutory privilege has been waived by the patient, it
seems that a Pennsylvania court has found in only one case that the protection conferred
by section 7111 of the MHPA should give way."4 Hahnemann, 74 F.3d at 464. Plaintiff
properly does not attempt to argue that one of the four statutory exceptions listed in 50
exception is not relevant to the present case. In the case discussed in Hahnemann, "the
[Pennsylvania Superior Court] essentially held that a therapist who learns of child abuse during therapy and
is compelled to testify at a criminal trial will not be permitted to invoke the MHPA confidentiality privilege,
given the competing statutory interests in the reporting of child abuse, and the statutory immunity from suit
granted to those making such reports." Hahnemann, 74 F.3d at 464.
P.S. § 7111 (a) is applicable here 5, and it is undisputed that Mattison did not consent in
writing to the release of the documents. Therefore, the only issue is whether Mattison can
be deemed to have waived by implication the protections of the MHPA.
Plaintiffs briefly address § 7111, arguing that Mattison waived his privilege of
confidentiality by (1) testifying "in detail about his treatment at DTA, his sexually
inappropriate behavior not only with [Plaintiff] BJS but with prior special education students
and children in and outside of school"; (2) not asserting "any privilege of confidentiality when
he testified at his deposition or in his criminal hearing"; (3) not contesting "the Court's finding
that he waived the psychotherapist-patient privilege by producing Anderson's [October 25,
2010] report"; (4) not asserting any privilege of confidentiality when the Manifestation
Deterrnination Review ... was read into the record during the deposition of DTA employee
Shelly Diggan"; and (5) placing his own mental state at issue. (Doc. 147, at 8).
The Court has previously addressed several of Plaintiffs' arguments in prior Opinions
and Orders, and need not do so again in detail. With respect to Anderson's report, the
Court did not find, as Plaintiffs' repeatedly contend in each of their briefs submitted to this
Court since March, 2014, that Mattison "waived the psychotherapist-patient privilege by
producing Anderson's [October 25, 2010] report." Rather, the Court held that the
"erroneous" disclosure of the October, 2010 Psychological Evaluation amounted to an
admission of a failure to assert the psychologist/psychiatrist-patient privilege as to this
the extent that Plaintiffs were to argue that the third exception is applicable in this case, that
exception has been strictly construed by Pennsylvania courts to only include involuntary and voluntary
mental health commitment proceedings. Com. v. Moyer, 595 A.2d 1177, 1179 (Pa. Super. 1991).
document and that Mattison's prior deposition testimony addressed most, if not all, of the
historical information found in the evaluation at issue. (Doc. 109). The Court specifically
identified portions of the evaluation that addressed Mattison's treatment as to which the
privilege had not been waived and stated that these portions remained privileged. Id. Our
narrow finding renders Plaintiffs' argument that Defendants' failure to contest this ruling
somehow indicates that Mattison generally waived his privilege completely unavailing.
Plaintiffs heavily rely on the Superior Court of Pennsylvania's decision in Sprague v.
Walter, wherein the Court found that the admission into evidence of a defendant's
confidential medical and psychiatric records in a libel action against the defendant and the
newspaper that employed him was proper. Sprague v. Walter, 656 A.2d 890 (Pa. Super.
Ct. 1995). However, such reliance is inapposite given the facts of the present case.
Plaintiffs seemingly cite Sprague for two propositions: (1) Mattison's testimony, "in detail" at
his deposition, is somehow similar to that of the defendant in Sprague, and constitutes a
waiver of the confidential documents; and (2) by not asserting the privilege of confidentiality
during his discovery deposition, he waived the privilege. (See Doc. 147, at 7-8).
In Sprague, the Court rejected Defendant's argument that he had only testified "as to
basic general information about his treatment" and therefore not waived the privilege,
finding that the defendant "testified at a discovery deposition related to the instant case,
about the various medical/psychiatric treatments he had received from the age of ten
through 1979... [and] the record shows that [Defendant] testified at some length during his
deposition about many of the details of his treatment, including dates of treatment, reasons
for seeking it, physicians seen, and diagnoses made." Sprague, 656 A.2d at 911. With
respect to Plaintiffs' first argument, the facts here are significantly different. Mattison's
deposition testimony demonstrates that, wrlile he did testify in some detail as to the incident
with Plaintiff B.J.S., his discussion of what occurred at DTA, including his treatment and
diagnosis, is minimal and superficial at best. As a result, Plaintiffs' second argument that
Mattison's failure to assert the privilege of con'fldentiality amounts to a waiver of his privilege
is meritless. While U[a] privilege of non-disclosure must be asserted during a discovery
proceeding or it will be waived!!, Sprague, 656 A.2d at 911 (citing Com. v. Kauffman, 605
A.2d 1243 (Pa. Super. 1992)), Mattison was not presented with a situation which would
have necessitated that he invoke the privilege. Mattison was never asked about the
specifics of his treatment, activities, or diagnosis at DTA, such as to elicit testimony with
respect to these topics and to put him on notice that there was a need to assert the
privilege. See Black's Law Dictionary (9th ed. 2009)(An implied waiver is "evidenced by a
party's decisive, unequivocal conduct reasonably inferring the intent to waive. An
implied waiver may arise where a person has pursued such a course of conduct as to
evidence an intention to waive a right, or where his conduct is inconsistent with any other
intention than to waive it. Waiver may be inferred from conduct or acts putting one off his
guard and leading him to believe that a right has been waived.")(lnternal citations omitted).
With respect to Plaintiffs' argument that Mattison waived any privilege of confidentiality by
not asserting it "when the Manifestation Determination Review ... was read into the record
during the deposition of DTA employee Shelly Diggan" (Doc. 147, at 8), the same analysis
applies. A review of the Manifestation Determination reveals no details of Mattison's
treatment, activities, programs, or diagnosis while at DTA, only broadly referencing the fact
that he is under the care of DTA and Alvin Weaver, and had previously been in the DTA
program and discharged because he had "met all of [DTAIMLC]'s requirements to exit the
residential program." (See Doc. 147, Ex. 2). Such broad and brief assertions, read into the
record during another person's deposition, are grossly insufficient to put Mattison on notice
such that his failure to assert the privilege amounts to a waiver that privilege.
Plaintiffs' argument that Mattison's failure to assert "any privilege of confidentiality
when he testified ... in his criminal hearing" is equally unavailing and this general principal
has been expressly rejected by Pennsylvania state courts. See Christy, 749 A.2d at 559
560 ("Here, [Defendant] has not executed a release and none of the statutory exceptions
permit disclosure of his records. We see no basis in law or in logic for the proposition that a
patient waives confidentiality to his or her mental health records simply because he or she
admitted guilt in ajuvenile proceeding.").
Plaintiffs' assertion that Mattison has put his mental state at issue because he
"asserted the affirmative defense that he lacked the requisite 'malice or reckless indifference
to any federally protected right of Plaintiffs' and did not 'otherwise meet the requirements of
outrageousness, maliciousness, or recklessness needed to support an award of punitive
damages'" as well as providing Anderson's October 25, 2010 evaluation as an expert report
(Doc. 147, at 4-5) is tenuous at best. While Mattison does assert such an affirmative
defense, on the state of the record thus far, we see no indication that Mattison's defense is
an assertion of a mental defect or infirmity that exonerates him or mitigates his conduct.
Consequently, to the extent that the opinions, observations, diagnosis, and treatment
notes stated in the Psychological Evaluations, Psychiatric Evaluations, Neuropsychological
Assessments, Psychological/Psychiatric Evaluations, and Case Notes and Summaries are
not privileged under the federal psychotherapist-patient privilege and 42 PA. CONS.
STAT. ANN. § 5944, they are covered by the MHPA's broad protections, wherein the
disclosure of any document IIconcerning persons in treatment," regardless of the contents of
that document, is forbidden. 6 In light of Hahnemann and its progeny, the Court will
therefore not conduct an in camera inspection as we could have done so only having first
determined that Mattison explicitly or impliedly waived his privilege such as to prevent him
from invoking the protections of 42 PA. CONS. STAT. ANN. § 5944 and the MHPAJ
6 With respect to Plaintiffs' contention that they are "seeking records maintained by DTA regarding
Mattison which will likely reveal the extent of their knowledge and communications with Warrior Run and
third parties regarding Mattison's history of repeated and dangerous behavior" (Doc. 147, at 10), we agree
that correspondence between DTA and Warrior Run is presumptively relevant and may be discoverable if
its contents is not otherwise privileged.
7 Any review of the documents provided to the Court by DTA has been strictly limited to
determining that the documents were in fact "documents concerning persons in treatment" and therefore
subject to the protections of the MHPA.
For the foregoing reasons, the Court will deny Plaintiffs' Motion for In Camera
Review (Doc. 124), A separate Order follows.
United States District Court Judge
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