United States District Court, D. Maine
CAROL A. DAVIS, Plaintiff
GLOBAL MONTELLO GROUP CORP., Defendant
MEMORANDUM DECISION AND ORDER ON DISCOVERY
H. RICH III UNITED STATES MAGISTRATE JUDGE.
defendant's request, I held a telephone conference in
this employment action to resolve a dispute over the
plaintiff's refusal to respond to discovery regarding her
medical, psychiatric, psychological, and other health care,
on the basis of the physician-patient and
psychotherapist-patient privileges. For the reasons that
follow, I deny the defendant's bid for the discovery in
plaintiff has sued the defendant, her prior employer, for
unlawful retaliation, gender discrimination, and sexual
harassment/hostile work environment, seeking damages for,
inter alia, mental anguish. See Complaint
and Jury Trial Demand (ECF No. 1) ¶¶ 23-29, 33-49.
parties' dispute, as clarified during the teleconference,
turned on whether the plaintiff had forfeited the
psychotherapist-patient privilege by seeking damages for
mental anguish in circumstances in which she has testified
that she continues to suffer severe mental distress as a
result of alleged sexual harassment to which she was
subjected by a different employer.
sides recognized, this court has held that “the mere
assertion of a damages claim for ‘garden variety'
or ‘incidental' emotional distress is not
sufficient to constitute waiver of the
psychotherapist-patient privilege.” Morrisette v.
Kennebec County, No. Civ. 01-01-B-S, 2001 WL 969014, at
*1 (D. Me. Aug. 21, 2001). See also Doe v. Brunswick Sch.
Dep't, No. 2:15-cv-257-DBH, 2016 U.S. Dist. LEXIS
59107, at *7-*11 (D. Me. Apr. 29, 2016); Stark v. Hartt
Transp. Sys., Inc., No. 2:12-CV-195-NT, 2013 WL 358266,
at *9-*10 (D. Me. Jan. 28, 2013).
court has explained that “[g]arden variety claims refer
to claims for compensation for nothing more than the distress
that any healthy, well-adjusted person would likely feel as a
result of being so victimized[, ]” whereas
“claims for serious distress refer to claims for the
inducement or aggravation of a diagnosable dysfunction or
equivalent injury.” Stark, 2013 WL 358266, at
*9 (citation and internal quotation marks omitted).
passing, the defendant challenged this court's ruling
that the assertion of a garden-variety emotional distress
claim does not waive the privilege. However, in the main, it
argued that this case is distinguishable because the
plaintiff, by her own testimony, has suffered more than
garden-variety emotional distress. The defendant contended
that, in fairness, it ought to be permitted to examine the
requested records, which would be produced subject to an
existing confidentiality order, and reopen the
plaintiff's deposition for a period of up to an hour,
regardless of whether such evidence ultimately might be
alternative, the defendant requested that, if the court were
inclined to deny its request, it do so upon the same four
conditions imposed in Doe, in which the court
recognized that, on the facts alleged in that complaint,
“the plaintiff and her son may well have experienced
emotional injuries that were, given their personal
characteristics and pre-existing conditions, in excess of
those that would be likely to have been experienced by
‘any healthy, well-adjusted person' who found
himself in either plaintiff's alleged position.”
Doe, 2016 U.S. Dist. LEXIS 59107, at *10.
plaintiff argued that she seeks only garden-variety emotional
distress damages, and thus the privilege has not been waived.
She disputed, as a factual matter, that she suffered more
than garden-variety emotional distress from the
defendant's alleged conduct, pointing to portions of her
deposition testimony indicating that she suffered the
distress at issue primarily as a result of the loss of her
job and income. She stated that, precisely because she does
not claim greater than garden-variety emotional distress, she
would be willing to abide by the four Doe
the defendant's request for the court's assistance as
an oral motion to compel the production of the discovery at
issue, and taking into consideration the plaintiff's
unequivocal statement that she was willing to abide by the
Doe conditions, I DENIED the motion
on condition that:
1. The plaintiff does not pursue any claims for damages due
to a medically diagnosable mental health condition.
2. The plaintiff does not rely on any medical or mental
health experts, providers, or records to prove damages.
3. The plaintiff does not seek any damages based on
hospitalizations or medical or mental health treatment or
4. The plaintiff does not seek damages for emotional distress
beyond that which would likely be felt by any healthy,
well-adjusted person as a result of the causes of action that