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Gunzinger v. John Lucas Tree Experts Co.

United States District Court, D. Maine

November 12, 2017

JOHN LUCAS TREE EXPERTS CO., et al., Defendants


          John H. Rich III United States Magistrate Judge.

         In this employment action, the defendants seek to compel the production of records generated during the course of the plaintiff's psychotherapy treatment by a licensed social worker on the bases that the plaintiff expressly waived his psychotherapist-patient privilege and, in any event, the denial of access to those records would be unfairly prejudicial. In the alternative, the defendants seek an order clarifying that certain damages do not qualify as “garden-variety” emotional distress damages. Finally, they seek to depose the plaintiff's treating social worker regardless of whether access to her records is granted.

         Treating the discovery dispute as a motion to compel, and with the benefit of letter briefs and responses that I directed the parties to submit, see ECF No. 20, I deny the motion for the reasons that follow.

         I. Applicable Legal Standard

         Rule 26(b) of the Federal Rules of Civil Procedure outlines the general scope of permissible discovery in a civil action.

Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         “[A] party resisting discovery has the burden of showing some sufficient reason why discovery should not be allowed[.]” Flag Fables, Inc. v. Jean Ann's Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1186 (D. Mass. 1989) (citation and internal quotation marks omitted). In addition, the proponent of a privilege bears the burden of demonstrating entitlement to its protection. See, e.g., In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“Despite a grand jury's vaunted right to every man's evidence, it must, nevertheless, respect a valid claim of privilege. But the party who invokes the privilege bears the burden of establishing that it applies to the communications at issue and that it has not been waived.”) (citations omitted).

         II. Factual Background

         As relevant here, the plaintiff's complaint alleges the following:

         The plaintiff began working for the defendant John Lucas Tree Experts Co. (“Lucas Tree”) as a laborer on August 15, 2011. See Complaint and Request for Jury Trial and Injunctive Relief (“Complaint”) (ECF No. 1) ¶ 17. On February 27, 2015, the plaintiff went home after working a full day and woke up in the emergency room after passing out from dehydration. See Id. ¶ 19. The next day, he informed his supervisor of his condition, and was told to remain home and rest. See Id. ¶ 20. On March 2, 2015, the plaintiff returned to work but did not feel well, and he called out of work on March 3, 2015. See Id. ¶¶ 21-22. He never returned to work. See Id. ¶¶ 23-89.

         On March 26, 2015, the plaintiff's doctor cleared him to return to work after treating him for potential liver and pancreas ailments. See Id. ¶¶ 26, 29. Lucas Tree refused to allow the plaintiff to return to work until he received an additional evaluation by defendant Concentra Medical Centers (“Concentra”). See Id. ¶ 31. Concentra never cleared the plaintiff to return to work, see Id. ¶¶ 38-40, 54-70, and he was terminated by Lucas Tree on May 27, 2015, see Id. ¶ 83.

         The plaintiff alleges that Lucas Tree violated his rights pursuant to the Americans with Disabilities Act (“ADA”), the ADA Amendments Act of 2008 (“ADAAA”), the Maine Human Rights Act (“MHRA”), the Family and Medical Leave Act (“FMLA”), and the Maine Family Medical Leave Requirements Act (“MFMLR”), and that Concentra violated his rights pursuant to the ADA, ADAAA, and MHRA.[1] See Id. ¶¶ 91-183. As to several of these claims, the plaintiff seeks damages for, inter alia, “severe emotional pain and suffering, mental anguish, humiliation, [and] loss of enjoyment of life[.]” Id. ¶¶ 101, 114, 125, 137.

         During the course of written discovery, the plaintiff was asked to identify the health care providers who provided treatment in relation to the incident at issue in the suit. See Letter Brief dated October 19, 2017, from Katherine I. Rand, Esq. to Hon. John H. Rich III (“Defendants' Brief”) at 2.[2] In response to that interrogatory, the plaintiff disclosed that he had seen Catherine Ouellette beginning in September 2015 “for assistance in dealing with the impact of his termination, the fact that [his] parents had to support him now and the financial and emotional impact on them having to do that.” See id. (quoting the plaintiff's response to Lucas Tree's Interrogatory Number 10). In his responses to requests for production of documents that sought records from his health care providers, he noted that he had requested Ouellette's records and would produce them to the defendants when he received them. See id.

         On July 24, 2017, the plaintiff notified the defendants that he was designating Ouellette as a treating expert witness. See Id. at 3. At the same time, he provided the defendants with a letter from Ouellette outlining and describing her treatment of him. See Id. The letter described, inter alia, conditions that the plaintiff alleged stemmed from his firing by Lucas Tree. See Id. The letter also noted Ouellette's assessment that the plaintiff's termination had specific detrimental effects on his mental health. See id.

         On September 21, 2017, the plaintiff's counsel confirmed to opposing counsel that she had received the plaintiff's medical file from Ouellette, but she refused to provide it to the defendants because she had determined that it contained sensitive information about the plaintiff's children. See Id. She stated that the plaintiff would withdraw his designation of Ouellette as an expert witness and seek only “garden variety” emotional distress damages. See Id. Counsel for defendants Lucas Tree and Buxton suggested that, instead, the plaintiff's counsel redact portions of the records discussing the plaintiff's children. See Id. In a letter dated September 22, 2017, the plaintiff's counsel declined to do so, reiterating that the plaintiff would not produce Ouellette's records, invoking the psychotherapist-patient privilege, and stating that the plaintiff agreed to adopt the four limitations on emotional distress damages set forth in Doe v. Brunswick Sch. Dep't, No. 2:15-cv-257-DBH, 2016 WL 8732370, at *4 (D. Me. Apr. 29, 2016). See Id. at 3. Those limitations are:

1. The plaintiff[] do[es] not pursue any claims for damages due to a medically diagnosable mental health condition.
2. The plaintiff[] do[es] not rely on any medical or mental health experts, providers, or records to prove damages.
3. The plaintiff[] do[es] not seek any damages based on hospitalizations or medical or mental health ...

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