Simpson v. Braider

104 F.R.D. 512, 1985 U.S. Dist. LEXIS 22826
CourtDistrict Court, District of Columbia
DecidedFebruary 5, 1985
DocketCiv. A. No. 84-0977
StatusPublished
Cited by8 cases

This text of 104 F.R.D. 512 (Simpson v. Braider) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simpson v. Braider, 104 F.R.D. 512, 1985 U.S. Dist. LEXIS 22826 (D.D.C. 1985).

Opinion

MEMORANDUM OPINION AND ORDER

ARTHUR L. BURNETT, Sr., United States Magistrate.

On March 28, 1984 plaintiff, Charles W. Simpson, filed suit in this court, based on diversity of citizenship, against Justin Braider, and his parents, Frank and Edna Braider, arising out of an alleged incident of April 25, 1983 involving Justin Braider’s shooting of a BB pellet gun from a window of an apartment on M Street, N.W. near Georgetown University, where he was a student, resulting in the projectile striking Mr. Simpson in the back of the neck. In addition to alleging causes of action against Justin Braider for assault and battery and alternatively, for negligence, the plaintiff also alleged a cause of action of negligence against the parents. Specifically plaintiff averred:

“Due to a long history of violent acts which included the shooting of rifles and pellet guns at members of the general public who were walking on the street, Defendants Frank Braider and Mrs. Frank Braider knew or should have known that Defendant Justin Braider posed a danger to members of the public at large; he especially posed the danger of his indiscriminate firing of firearms at members of the public. Although Defendants Frank Braider and Mrs. Frank Braider had Defendant Justin Braider within their dominion and control, supported him and knew, or should have known of the danger to the public which Justin Braider represented, Defendants Frank Braider and Mrs. Frank Braider failed to exercise any degree of care whatsoever in their control of Justin Braider. Such failure to exercise care in their control of Justin Braider constituted negligence on the part of Defendants Frank Braider and Mrs. Frank Braider.” (Complaint, Paragraph 12.)

Plaintiff has demanded judgment against Mr. and Mrs. Frank Braider, jointly and severally, for the sum of $1,000,000 as compensatory damages, plus interest and costs. Plaintiff has demanded trial by jury on all issues.

During the course of pretrial discovery, depositions of Frank and Edna Braider of September 4, 1984 were terminated because of defendants Frank and Edna Braid-er’s refusal to answer what plaintiff has characterized as “several critical questions propounded by Plaintiff’s counsel” concerning their knowledge prior to April 25, 1983 of Justin Braider’s “dangerous tendencies.” In a motion to compel discovery and for sanctions, filed October 4, 1984, plaintiff asserted:

“In order to establish the factual background indicating that Defendants Frank and Edna Braider knew or should have known of the dangerous tendencies of Defendant Justin Braider, Plaintiff attempted to inquire at the depositions of Defendants Frank and Edna Braider into the history of psychological treatment of Defendant Justin Braider. Plaintiff also sought to inquire into the knowledge of Defendants Frank and Edna Braider of any prior arrests of Justin Braider. After first acknowledging that Justin Braider had been under the care of a psychologist and had at some time been hospitalized, Defendants refused to answer any questions regarding the psychological or psychiatric treatment or confinement of Defendant Justin Braid-er. The ground asserted for the refusal was the physician-patient privilege. Defendants also refused to answer any questions regarding prior arrests of Justin Braider on the grounds that such information was irrelevant.”

Counsel for the plaintiff in his motion to compel further observed that Justin Braid-er had been prosecuted for the shooting of the plaintiff in Criminal Case No. F-2427-83 in the Superior Court for the District of Columbia and that in the course of that case the history of Justin Braider’s psychological, mental or emotional disorders, which allegedly had contributed to the [515]*515shooting, had been placed on the record by his defense counsel in mitigation at the time of sentencing to misdemeanor disposition of the case.1 Subsequently, counsel for the plaintiff argued that this action by defense counsel for Justin Braider in the criminal case constituted a waiver of the physician-patient privilege.

In support of the motion to compel plaintiff argued that Federal Rules of Evidence 501 triggers local law in a circumstance such as this, and thus, in the District of Columbia, the privilege is governed by section 14-307 of the District of Columbia Code. Based on a literal reading of the terms of the section, plaintiffs counsel urged that the privilege only applies to prevent disclosure by the physician without the consent of the patient. He thus contended that Section 14-307 had no application to third parties such as Frank and Edna Braider and therefore their knowledge with respect to the psychological and psychiatric history of Justin Braider was clearly not subject to the physician-patient privilege.2

The defendants opposed the motion to compel discovery and for sanctions, asserting that the physician-patient privilege had been properly invoked by Justin Braider himself and that under the statute, while he is alive, only he can waive it, citing In re Estate of Wilson, 416 A.2d 228 (D.C.App.1980). Thus, counsel for the defendants contended that Frank and Edna Braider, under Section 14-307, did not have the power to waive the privilege; they could only do so if Justin Braider were deceased and they were his legal representatives. Further, counsel suggested that Mr. and Mrs. Frank Braider were third-parties involved in the relationship between Justin Braider and his doctors and psychologists, and thus they were in a position to be aware of facts concerning Justin Braider’s treatment, which, if revealed, would violate Justin Braider’s statutory privilege, citing Pollitt v. Mobay Chemical Corp., 95 F.R.D. 101, 104 (S.D.Ohio 1982), for the proposition that “in some limited circumstances third-parties to the relationship may raise the privilege.”

After a review of the court record, and preliminary research having disclosed no judicial precedent by any court in the District of Columbia, the Magistrate ordered the defendants Frank and Edna Braider to appear before the Magistrate for the resumption of their respective depositions—

“to testify further as to their knowledge as of April 25, 1983 concerning the existence of mental or emotional disorder of their son, Justin Braider, and his tendencies to engage in violent acts, with a decision on the question of whether counsel for the plaintiff can inquire into any course of treatment by a psychiatrist or medical doctor and as to any conversations with psychiatrists or medical doctors by the parents, Frank and Edna Braider, in view of the statutory physician-patient privilege of D.C.Code § 14-307 (1981), being reserved until the supplemental depositions before the Magistrate.”

Further, the Magistrate directed counsel for the plaintiff to file a supplemental memorandum “on the issue whether the parents can be required to disclose what a psychiatrist may have told them about their child, while a minor, notwithstanding the child, who has since become an adult, refusing to waive the physician-patient [516]*516privilege”3 and counsel for the defendants was required to file a responsive supplemental memorandum.

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Cite This Page — Counsel Stack

Bluebook (online)
104 F.R.D. 512, 1985 U.S. Dist. LEXIS 22826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-braider-dcd-1985.