Sarko v. Penn-Del Directory Co.

170 F.R.D. 127, 7 Am. Disabilities Cas. (BNA) 195, 46 Fed. R. Serv. 671, 37 Fed. R. Serv. 3d 889, 1997 U.S. Dist. LEXIS 589
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 22, 1997
DocketCivil Action No. 96-4428
StatusPublished
Cited by50 cases

This text of 170 F.R.D. 127 (Sarko v. Penn-Del Directory Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 7 Am. Disabilities Cas. (BNA) 195, 46 Fed. R. Serv. 671, 37 Fed. R. Serv. 3d 889, 1997 U.S. Dist. LEXIS 589 (E.D. Pa. 1997).

Opinion

[129]*129MEMORANDUM

JOYNER, District Judge.

Before the Court is Defendant’s Motion to Compel Independent Medical Examination of Plaintiff and to Compel Plaintiff to Authorize Release of Medical Records. For the following reasons, the Motion is granted in part and denied in part.

BACKGROUND

Plaintiff Sharon H. Sarko was employed by Defendant Penn-Del Directory Company from June 10,1991 until June 29, 1994, when Defendant discharged her allegedly for chronic tardiness. Plaintiff claims in this action, however, that her discharge violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq„ Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Plaintiff seeks compensatory and punitive damages, injunctive relief and attorney’s fees for these alleged violations.

The instant motion concerns Plaintiffs ADA claim. Plaintiff alleges that, while she was employed by Defendant, she suffered from clinical depression requiring medication, that this medication caused her difficulty waking up in the morning, that Defendant was aware of her condition, and that, despite her request for a reasonable accommodation of this condition, Defendant unlawfully fired her. In an effort to obtain discovery concerning these allegations, Defendant requested that Plaintiff (1) submit to a psychiatric examination by Defendant’s expert, and (2) authorize the release of her medical providers’ records, including those of her primary treating psychiatrist. Plaintiff refused both requests and the instant motion resulted.

DISCUSSION

I. The Medical Records

Defendant seeks the records of “each of Sarko’s medical providers that had been identified in response to Sarko’s interrogatories.” (Def.’s Mem. at 3.) Defendant seeks the records of Plaintiffs primary treating psychiatrist in particular, but does not specify which other providers its motion concerns. Still, to the extent that the records of any of the providers contain information relating to the nature of Plaintiffs alleged disability, her need for medication, or the side effects of the medication, they are clearly relevant under Rule 26(b)(1) to Plaintiffs ADA claim. The questions for present purposes are whether these records are privileged from discovery and, if so, whether any applicable privileges have been waived.

Plaintiff argues that the records are privileged under the Pennsylvania statute providing that “[t]he confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.” Pa.Cons. StatAnn. § 5944. It is well-settled, however, that, under Federal Rule of Evidence 501, the federal common law of privileges applies to federal question cases such as this. Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3d. Cir.1982); Bayges v. S.E.P.T.A., 144 F.R.D. 269, 271 (E.D.Pa.1992).1 Under a Supreme Court decision handed down just last year, the federal common law now uniformly embraces a psychotherapist-patient privilege. The Court held in Jaffee v. Redmond that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under [Rule 501].” — U.S.-,-, 116 S.Ct. 1923, 1931, 135 L.Ed.2d 337 (1996). This privilege covers confidential communications to “licensed psychiatrists and psychologists” and is not “contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the eviden-tiary need for disclosure.” Id. at-- -, 116 S.Ct. at 1931-32. It therefore clearly covers the records of Plaintiffs psychiatrist at issue here.

[130]*130Defendant responds that Plaintiff has waived any applicable privilege by placing her mental condition directly at issue in this action. Defendant cites Whitbeck v. Vital Signs, Inc., 163 F.R.D. 398 (D.D.C.1995), for the proposition that the privilege may be waived in such a manner, but this decision rests on District of Columbia law. The Supreme Court did not address waiver of the federal common law privilege in Jaffee, however, explicitly leaving the contours of the new privilege to be fleshed out over time on a case-by-case basis. Id. at-, 116 S.Ct. at 1932. We must therefore first ask whether placing one’s mental condition at issue in a civil action waives the federal common law psychotherapist-patient privilege, and, if so, whether the privilege has been so waived here. We answer both questions in the affirmative.

We find that a party waives the privilege by placing her mental condition at issue for several reasons. First, our Court, which recognized a qualified federal common law psychotherapist-patient privilege prior to Jaffee, see Mines v. City of Philadelphia, 158 F.R.D. 337 (E.D.Pa.1994); Siegfried v. City of Easton, 146 F.R.D. 98 (E.D.Pa.1992), has previously held that a litigant may waive the privilege in this manner. . See Topol v. Trustees of University of Pennsylvania, 160 F.R.D. 476, 477 (E.D.Pa.1995); see also Price v. County of San Diego, 165 F.R.D. 614, 622 (S.D.Cal.1996) (recognizing federal common law privilege for psychotherapist-patient communications but holding that litigant waived privilege by raising issue as to her psychological state). Second, the Supreme Court specifically analogized the policy considerations supporting recognition of the privilege in Jaffee to those underlying the attorney-client privilege, which is waived when the advice of counsel is placed at issue in litigation. See, e.g., Glenmede Trust Co. v. Thompson, 56 F.3d 476, 486 (3d Cir. 1995); Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir.1994); see also Rost v. State Bd. of Psychology, 659 A.2d 626, 629 (Pa.Cmwlth.1995) (reasoning that Pennsylvania’s statutory psychotherapist-patient privilege is waived by placing communications at issue by analogy to the state’s attorney-client privilege), app. denied, 543 Pa. 699, 670 A.2d 145 (1995); Premack v. J.C.J. Ogar, Inc., 148 F.R.D. 140, 144-45 (E.D.Pa.1993) (predicting that Pennsylvania Supreme Court would hold that placing mental condition at issue in civil action waives psychologist-patient privilege). Lastly, we agree that allowing a plaintiff “to hide ... behind a claim of privilege when that condition is placed directly at issue in a case would simply be contrary to the most basic sense of fairness and justice.”. Id. at 145.

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Bluebook (online)
170 F.R.D. 127, 7 Am. Disabilities Cas. (BNA) 195, 46 Fed. R. Serv. 671, 37 Fed. R. Serv. 3d 889, 1997 U.S. Dist. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarko-v-penn-del-directory-co-paed-1997.