UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KYLA THURSTON, Plaintiff, Civil Action No. 24-2824 (JDB) v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
MEMORANDUM ORDER
The Washington Metropolitan Area Transit Authority (WMATA) requested discovery
related to Thurston’s mental health records. Thurston objected, invoking the psychotherapist-
patient privilege. The parties disagree about whether Thurston has waived privilege by placing
her mental health at issue in this litigation by claiming emotional damages. The parties briefed
their positions and presented them before the Court. The Court now holds that Thurston has not
waived privilege by seeking damages for emotional distress.
LEGAL STANDARD
In Jaffee v. Redmond, the Supreme Court held that “confidential communications between
a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected
from compelled disclosure . . . .” 518 U.S. 1, 15 (1996). “Like other testimonial privileges, the
patient may of course waive the protection.” Id. at 15 n.14. The standard for determining waiver
in the D.C. Circuit is by “analogizing the psychotherapist-patient privilege to the attorney-client
and spousal privileges.” Koch v. Cox, 489 F.3d 384, 390 (D.C. Cir. 2007). For example, much
like with attorney-client privilege, a party waives psychotherapist-patient privilege when they sue
the practitioner for malpractice, base a claim or defense upon the practitioner’s advice, or
1 selectively disclose part of a privileged communication to gain advantage in litigation. Id. at 390.
Importantly, the waiver determination is not subject to “balanc[ing] the need for the relevant
information” against “the invasion of a patient’s privacy” that discovery would cause. Id. at 389–
90. And “a plaintiff does not put his mental state in issue merely by acknowledging he suffers
from [a mental condition] for which he is not seeking recompense; nor may a defendant overcome
the privilege by putting the plaintiff’s mental state in issue.” Id. at 391.
Some judges in this district have evaluated waiver using a set of five factors from Turner
v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995). See, e.g., St. John v. Napolitano, 274 F.R.D.
12, 19–20 (D.D.C. 2011). The Turner court held that a plaintiff puts their mental state at issue,
thereby waiving privilege, when they plead “(1) a cause of action for intentional or negligent
infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or
disorder; (3) a claim of unusually severe emotional distress; (4) [or offer] expert testimony to
support a claim of emotional distress; and/or (5) [offer the] concession that his or her mental
condition is in controversy. . . .” Turner, 161 F.R.D. at 95 (citation modified). The D.C. Circuit
has not adopted this test, but the Turner factors may be helpful insofar as they track the types of
circumstances when attorney-client privilege or spousal privilege might also be waived, such as
by offering expert testimony on a privileged issue (factor 4).
ANALYSIS
Thurston has not waived privilege because she has not put her mental health diagnosis and
treatment at issue. As an initial matter, Thurston has not “base[d] a claim or defense upon [a
therapist’s] advice.” Koch, 489 F.3d at 390. She asserts claims for negligence and vicarious
liability, not intentional or negligent infliction of emotional distress. Although Thurston does seek
emotional distress damages, her asserted entitlement does not rely upon a psychiatrist’s treating
2 statement. Nothing in her complaint hinges on a specific mental health diagnosis like depression
on anxiety. Nor is there any reason to believe that her asserted injuries are grounded in an theory
of emotional distress that will necessarily require her to rely on treating statements. To the
contrary, her complaint only includes two anodyne references to emotional distress. Compl. ¶¶
46, 54. And during the October 15, 2025, conference, Thurston’s counsel disclaimed any argument
that Thurston suffered “severe” emotional distress.
Importantly, there is no indication that Thurston seeks to “selectively disclose” confidential
communications to impermissibly “gain an advantage in litigation.” Koch, 489 F.3d at 390.
Attorney-client and spousal privilege can be waived when a litigant seeks to use privilege as both
“a sword and as a shield” by disclosing privileged communications and then preventing their
opponents from examining related materials. Id. (citation modified). That is not the case here.
Thurston does not allege any specific mental health diagnosis caused by WMATA’s behavior that
would rely on a treating therapist’s communication. Quite the opposite, the types of emotional
damages she alleges that she suffered are “isolation, anger, humiliation, fright, and anguish,”
which are not the province of any specialized expertise. Compl. ¶¶ 46, 54. And during the October
15, 2025, conference, Thurston’s counsel disclaimed any intent to use treating records or introduce
any experts related to her mental health. See St. John, 274 F.R.D. at 20 (finding no waiver of
privilege where the plaintiff did not assert a cause of action for emotional distress and indicated
he would not offer expert testimony or rely on medical records as evidence of emotional distress).
Likewise, none of the Turner factors apply to Thurston. She does not (1) plead a cause of
action for intentional or negligent infliction of emotional distress. She does not (2) allege a specific
mental or psychiatric injury or disorder. She does not (3) claim unusually severe emotional
distress. WMATA argues that Thurston pleads “ongoing” emotional distress, but this ordinary-
3 course language is not enough to waive privilege, especially when Thurston has clarified that she
does not seek damages for “severe” emotional distress, her arguments do not involve a specific
mental health diagnosis, and she will not rely on confidential communications in making her case.
See St. John, F.R.D. at 20 (finding plaintiff’s emotional damages not “severe” when plaintiff
alleged “humiliation, embarrassment, emotional distress, economic loss, and deprivation of his
right to equal employment opportunity.”). Finally, Thurston will not (4) offer expert testimony on
emotional distress and has not (5) conceded that her mental health is in controversy.
WMATA asks this Court to conclude that Thurston’s mental health records are so
intertwined in her case that they are nevertheless at issue. It argues that Thurston has seen several
therapists since the accident and that those records are necessary for WMATA to mount a viable
defense to any emotional damages claim. The Court is mindful that overbroad constructions of
evidentiary privileges risk tying litigants’ hands, thereby “derogat[ing] the search for truth.”
United States v. Nixon, 418 U.S. 683, 710 (1974). But that is not the case here. For one,
WMATA’s rule would “eviscerate the privilege,” Koch, 489 F.3d at 390, by allowing for discovery
whenever a litigant pleads ongoing emotional harm (as they often do). For another, WMATA
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KYLA THURSTON, Plaintiff, Civil Action No. 24-2824 (JDB) v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
MEMORANDUM ORDER
The Washington Metropolitan Area Transit Authority (WMATA) requested discovery
related to Thurston’s mental health records. Thurston objected, invoking the psychotherapist-
patient privilege. The parties disagree about whether Thurston has waived privilege by placing
her mental health at issue in this litigation by claiming emotional damages. The parties briefed
their positions and presented them before the Court. The Court now holds that Thurston has not
waived privilege by seeking damages for emotional distress.
LEGAL STANDARD
In Jaffee v. Redmond, the Supreme Court held that “confidential communications between
a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected
from compelled disclosure . . . .” 518 U.S. 1, 15 (1996). “Like other testimonial privileges, the
patient may of course waive the protection.” Id. at 15 n.14. The standard for determining waiver
in the D.C. Circuit is by “analogizing the psychotherapist-patient privilege to the attorney-client
and spousal privileges.” Koch v. Cox, 489 F.3d 384, 390 (D.C. Cir. 2007). For example, much
like with attorney-client privilege, a party waives psychotherapist-patient privilege when they sue
the practitioner for malpractice, base a claim or defense upon the practitioner’s advice, or
1 selectively disclose part of a privileged communication to gain advantage in litigation. Id. at 390.
Importantly, the waiver determination is not subject to “balanc[ing] the need for the relevant
information” against “the invasion of a patient’s privacy” that discovery would cause. Id. at 389–
90. And “a plaintiff does not put his mental state in issue merely by acknowledging he suffers
from [a mental condition] for which he is not seeking recompense; nor may a defendant overcome
the privilege by putting the plaintiff’s mental state in issue.” Id. at 391.
Some judges in this district have evaluated waiver using a set of five factors from Turner
v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995). See, e.g., St. John v. Napolitano, 274 F.R.D.
12, 19–20 (D.D.C. 2011). The Turner court held that a plaintiff puts their mental state at issue,
thereby waiving privilege, when they plead “(1) a cause of action for intentional or negligent
infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or
disorder; (3) a claim of unusually severe emotional distress; (4) [or offer] expert testimony to
support a claim of emotional distress; and/or (5) [offer the] concession that his or her mental
condition is in controversy. . . .” Turner, 161 F.R.D. at 95 (citation modified). The D.C. Circuit
has not adopted this test, but the Turner factors may be helpful insofar as they track the types of
circumstances when attorney-client privilege or spousal privilege might also be waived, such as
by offering expert testimony on a privileged issue (factor 4).
ANALYSIS
Thurston has not waived privilege because she has not put her mental health diagnosis and
treatment at issue. As an initial matter, Thurston has not “base[d] a claim or defense upon [a
therapist’s] advice.” Koch, 489 F.3d at 390. She asserts claims for negligence and vicarious
liability, not intentional or negligent infliction of emotional distress. Although Thurston does seek
emotional distress damages, her asserted entitlement does not rely upon a psychiatrist’s treating
2 statement. Nothing in her complaint hinges on a specific mental health diagnosis like depression
on anxiety. Nor is there any reason to believe that her asserted injuries are grounded in an theory
of emotional distress that will necessarily require her to rely on treating statements. To the
contrary, her complaint only includes two anodyne references to emotional distress. Compl. ¶¶
46, 54. And during the October 15, 2025, conference, Thurston’s counsel disclaimed any argument
that Thurston suffered “severe” emotional distress.
Importantly, there is no indication that Thurston seeks to “selectively disclose” confidential
communications to impermissibly “gain an advantage in litigation.” Koch, 489 F.3d at 390.
Attorney-client and spousal privilege can be waived when a litigant seeks to use privilege as both
“a sword and as a shield” by disclosing privileged communications and then preventing their
opponents from examining related materials. Id. (citation modified). That is not the case here.
Thurston does not allege any specific mental health diagnosis caused by WMATA’s behavior that
would rely on a treating therapist’s communication. Quite the opposite, the types of emotional
damages she alleges that she suffered are “isolation, anger, humiliation, fright, and anguish,”
which are not the province of any specialized expertise. Compl. ¶¶ 46, 54. And during the October
15, 2025, conference, Thurston’s counsel disclaimed any intent to use treating records or introduce
any experts related to her mental health. See St. John, 274 F.R.D. at 20 (finding no waiver of
privilege where the plaintiff did not assert a cause of action for emotional distress and indicated
he would not offer expert testimony or rely on medical records as evidence of emotional distress).
Likewise, none of the Turner factors apply to Thurston. She does not (1) plead a cause of
action for intentional or negligent infliction of emotional distress. She does not (2) allege a specific
mental or psychiatric injury or disorder. She does not (3) claim unusually severe emotional
distress. WMATA argues that Thurston pleads “ongoing” emotional distress, but this ordinary-
3 course language is not enough to waive privilege, especially when Thurston has clarified that she
does not seek damages for “severe” emotional distress, her arguments do not involve a specific
mental health diagnosis, and she will not rely on confidential communications in making her case.
See St. John, F.R.D. at 20 (finding plaintiff’s emotional damages not “severe” when plaintiff
alleged “humiliation, embarrassment, emotional distress, economic loss, and deprivation of his
right to equal employment opportunity.”). Finally, Thurston will not (4) offer expert testimony on
emotional distress and has not (5) conceded that her mental health is in controversy.
WMATA asks this Court to conclude that Thurston’s mental health records are so
intertwined in her case that they are nevertheless at issue. It argues that Thurston has seen several
therapists since the accident and that those records are necessary for WMATA to mount a viable
defense to any emotional damages claim. The Court is mindful that overbroad constructions of
evidentiary privileges risk tying litigants’ hands, thereby “derogat[ing] the search for truth.”
United States v. Nixon, 418 U.S. 683, 710 (1974). But that is not the case here. For one,
WMATA’s rule would “eviscerate the privilege,” Koch, 489 F.3d at 390, by allowing for discovery
whenever a litigant pleads ongoing emotional harm (as they often do). For another, WMATA
overstates their disadvantage because Thurston has committed to not using her mental health
records as a sword, by introducing mental health experts or otherwise disclosing confidential
communications. WMATA can litigate emotional distress just as any other defendant in the
absence of confidential communications—for example, by conducting depositions, making
arguments about causation, and presenting a narrow theory about the reasonable scope of
emotional harm. And finally, WMATA’s argument fails because it boils down to a request that
the Court conduct impermissible balancing of WMATA’s need for the information against
Thurston’s privacy interest. The Supreme Court and D.C. Circuit are clear that the bare fact that
4 the records are relevant to potential defense strategies is not enough to waive the privilege. See
Koch, 489 F.3d at 390 (citing Jaffee, 518 U.S. at 17).
CONCLUSION
Thurston has not waived the psychotherapist-patient privilege by seeking damages for
emotional distress. Her complaint reflects garden variety emotional distress claims, and she does
not allege any mental health diagnosis or intend on introducing experts to testify regarding her
mental health status. The Court will be watchful that Thurston hews to her representations and
does not impermissibly deploy her mental health history as both a sword and a shield as litigation
continues. But without more to suggest that Thurston will, for example, base her claims on
privileged treatment-related statements or selectively disclose mental health records, the D.C.
Circuit’s standard for waiver is not met.
/s/ JOHN D. BATES United States District Judge
Dated: October 15, 2025