United States District Court, D. Rhode Island
JILL D. DAVIS, Plaintiff,
AMICA MUTUAL INSURANCE COMPANY, Defendant
For Jill D Davis, Plaintiff: Edward J. Denn, Robert J. Gilbert, PRO HAC VICE, Gilbert & Renton, LLC, Andover, MA; Melody A. Alger, Alger Law LLC, Providence, RI.
For AMICA Mutual Insurance Company, Defendant: John A. Donovan, III, LEAD ATTORNEY, Sloane & Walsh LLP, Boston, MA.
MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, United States Magistrate Judge.
This breach of contract case concerns the value of the claims of Plaintiff, Dr. Jill Davis, for uninsured motorist benefits under automobile and umbrella insurance policies issued by Defendant, Amica Mutual Insurance Company. Plaintiff was injured in a serious 2011 hit-and-run accident. Because of the psychological and behavioral limitations resulting from the physical injuries caused by the accident, particularly limitations on her ability to concentrate, focus and listen critically, she alleges that she is now indefinitely and permanently disabled, not only unable to work as a psychiatrist but effectively unemployable.
Discovery in this case revealed that Plaintiff has been treating for post-traumatic-stress-disorder (" PTSD") with Massachusetts psychiatrist Dr. Sara Bolton since 2004; from 2004 to the present, she has seen Dr. Bolton weekly. As soon as it became aware of this treatment, Defendant issued a subpoena duces tecum seeking production of Dr. Bolton's records for the three year period preceding the accident and continuing to the present. It contends that these privileged therapist-patient records are highly relevant because Plaintiff has placed her mental and emotional condition in issue by claiming total disability. To support its argument, Defendant points to Plaintiff's testimony that her injuries have impacted her ability to focus, concentrate and listen critically, which has made her work as a physician impossible. While Plaintiff maintains that her limitations were caused by undifferentiated nerve pain arising from her accident,  Defendant says Plaintiff's treatment with Dr. Bolton is directly probative on the issue of alternative causation. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1228 (9th Cir. 2010) (PTSD symptoms include difficulty concentrating); Lawler v. Astrue, No. 10-cv-3397, 2011 WL 5825781, at *2 (E.D.N.Y. Nov. 14, 2011) (diagnostic criteria for PTSD include difficulty concentrating); Nelsen v. Research Corp. of Univ. of Haw., 805 F.Supp. 837, 843 (D. Haw. 1992) (same). Therefore, Defendant contends, Dr. Bolton's records are relevant and the interests of justice require their disclosure.
Plaintiff has moved to quash (ECF No. 17); she argues that her injuries were physical and that her extremely high level of functioning (as a medical student and medical resident) prior to the accident demonstrates that she had no pre-existing mental health condition. She represents that she does not intend to call Dr. Bolton as a witness, and is willing to stipulate that she will pursue no claims of mental anguish, mental suffering or any similar condition, provided there is no discovery of her therapist-patient information. ECF No. 17 at 4, ECF No. 20 at 4. Accordingly, she contends that these mental health treatment records are irrelevant and privileged. Specifically, she invokes the Massachusetts statutory privilege,  which allows a patient to refuse to disclose communications with a psychotherapist regarding the diagnosis and treatment of the patient's mental or emotional condition. Mass. Gen. Laws ch. 233, § 20B.
Under Massachusetts law, " [p]rivileges exist to shield the substance of those communications necessary for effective mental health treatment." Sorenson v. H& R Block, Inc., 197 F.R.D. 199, 203 (D. Mass. 2000). " [T]he interests protected by the psychotherapist-patient privilege are extensive. They include the interests of the patient in obtaining treatment for mental illness as well as society's interests in the advancement of mental health." Sabree v. United Bhd. of Carpenters, 126 F.R.D. 422, 425 (D. Mass. 1989). On the other hand, the patient-therapist privilege is not absolute; it is a qualified privilege, subject to various exceptions, including that it:
shall not apply . . . [i]n any proceeding . . . in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.
Mass. Gen. Laws ch. 233, § 20B(c) (emphasis added). The party asserting this privilege (here Plaintiff) has the burden of showing its applicability. See Colonial Gas Co. v. Aetna Cas. & Sur. Co., 144 F.R.D. 600, 604 (D. Mass. 1992); Purcell v. Dist. Attorney for Suffolk Dist., 424 Mass. 109, 676 N.E.2d 436, 440 (Mass. 1997). However, once she satisfies the Court that privileged records are implicated, the burden of establishing that the conditions for disclosure are satisfied rests with the party who seeks access to the privileged material (here Defendant). Donovan v. Prussman, No. CIV. A. 99-175D, 2000 WL 1257463, at *7 n.5 (Mass. S.Ct. Aug. 28, 2000) (citing Cabrera v. Cabrera, 23 Conn.App. 330, 580 A.2d 1227, 1233 (Conn. App. Ct. 1990)). Because the privileged nature of Dr. Bolton's records is undisputed, the focus must therefore be on whether Defendant has demonstrated that this exception to the privilege applies.
In construing the exception, the threshold inquiry is whether Plaintiff has placed her mental or emotional condition in issue. While Massachusetts courts routinely hold that a " garden-variety claim of emotional distress" does not make the party's mental or emotional condition an element of the claim, when a plaintiff claims to be suffering from a " psychic injury or psychiatric disorder, " the litigant's mental or emotional condition is considered to have been placed in issue so that privileged treatment communications are relevant.
Sabree, 126 F.R.D. at 426. Even when the injury is physical, if the sequelae are emotional, courts find that the patient's mental and emotional condition is in issue; for example, if stress, anxiety and depression are caused by a physical injury, resulting in the inability to work, mental health records related to those conditions are relevant. Martin ex rel. Martin v. Town of Upton, No. CAWO 200402162, 2007 WL 809818, at *3 (Mass. S.Ct. Feb. 2, 2007) (plaintiff makes mental or emotional condition element of claim by describing harm as depression or mood disorder); Robart v. Alamo Rent-A-Car, LLC, No. 034603J, 2005 WL 1009746, at *3 (Mass. S.Ct. Mar. 16, 2005) (plaintiff who alleges physical injuries and psychiatric sequelae from van accident, including difficulty focusing, impaired memory and inability to work, has made psychiatric disorder central element of claim); Donovan, 2000 WL 1257463, at *4 (although injury was physical, mental and emotional harms are central to damages; question is nature of injury and what damages resulted from it).
These cases make plain that, when a physical injury causes a mental impairment, resulting in the inability to function well enough to return to work, and the plaintiff makes it a central element of her claim, it is well settled that she has introduced her " mental or emotional condition as an element" of her claim. Donovan, 2000 WL 1257463, at *4. Accordingly, I find that Plaintiff's claim of disability has placed her mental and emotional health in issue by her allegation that she is disabled due to her inability to concentrate, focus or listen critically. Linscott v. Burns, No. 2003-00648, 2005 WL 351039, at *3 (Mass. S.Ct. Jan. 27, 2005) (mental health in issue based on claim of disability as a result of physical injury and emotional harm it caused).
This does not end the analysis -- even when a plaintiff has introduced psychic damage as an element of her claim, the records remain protected unless the court also finds that the interests of justice require that the defendant should have access.
Robart, 2005 WL 1009746, at *5 (defendant failed to show that its ability to defend would be impaired without records; its need did not outweigh plaintiff's significant interest in maintaining confidentiality). Put differently, the records remain shielded unless either the patient calls the psychotherapist as a witness or introduces evidence of the communication through her own testimony, or the party seeking access makes a specific showing that the truth-seeking function of the trial will be seriously impaired unless disclosure is ordered.
Linscott, 2005 WL 351039, at *3. Because Plaintiff has clearly stated that she does not intend to call Dr. Bolton or to place her communications with Dr. Bolton in evidence, the inquiry must focus on whether this Court's truth seeking function will be distorted because Defendant and its experts are unable to understand Plaintiff's pre-accident emotional health as it affects her ability to concentrate. To pierce the privilege, Defendant must demonstrate " a good faith, specific, and reasonable basis for believing that the records" contain such information.
Donovan, 2000 WL 1257463, at *7 n.4.
Massachusetts courts applying these principles consistently find that this prong is satisfied by a showing that the privileged records are plainly relevant to the defense of a civil claim voluntarily made by the patient who seeks to protect the records. For example, in Jacobs v. Vachon, 11 Mass. L. Rptr. 307, at *2 (Mass. S.Ct. 2000), the court found that it is more important to the interests of justice that the communication be disclosed than that the relationship be protected based on the defendant's showing that the impairment to the plaintiff's mental health may have been caused by circumstances not involving the defendant. Id. at *3 (ordering mental health treatment records to be produced). Thus, the interests of justice tip in favor of production of mental health records if the party seeking production makes a threshold showing that they may reveal that the claimant's mental and emotional distress was caused by prior, unrelated events. Riley v. Gen. Emp't Enters., No. CIV.A. 04-12318-RWZ, 2006 WL 1344085, at *1 (D. Mass. May 16, 2006) (to the extent records establish plaintiff's emotional distress resulted from pre-existing conditions and not from plaintiff's allegations, defendant's access " is in the interest of justice under Massachusetts law"); Guimares v. Prete, 5 Mass. L. Rptr. 180, at *2 (Mass. S.Ct. 1996) (ordering release of records under § 20B(c); " [i]n a civil case like this . . . plaintiff's mental and physical health is a critical issue placed in issue by the plaintiff herself, and medical records may reveal mental and emotional distress caused by prior, unrelated events.").
Plaintiff counters by citing to cases like Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997), which held that the facts presented established that the interests of justice tipped against the defendant's access to mental health evidence unless and until the plaintiff called the psychotherapist as a witness. Id. at 230 (interpreting federal common law privilege); see also
Robart, 2005 WL 1009746, at *3, *5 (party seeking access failed to make a showing of need sufficient to outweigh patient's interest in confidentiality). These cases make clear the importance of scrupulous respect for the patient's right of confidentiality, but they do not alter the power of the court to order production based on ...