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VANN v. LONE STAR STEAKHOUSE & SALOON

June 25, 1997

MARY T. VANN, PLAINTIFF,
v.
LONE STAR STEAKHOUSE & SALOON OF SPRINGFIELD, INC., LONE STAR STEAKHOUSE & SALOON, INC., AND KIRK A. TREGONING, GENERAL MANAGER, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge.

OPINION

Disclosed expert witness for plaintiff refuses to produce plaintiffs records on the basis of psychotherapist-patient privilege.

But plaintiff has waived that privilege.

The subpoena must be enforced.

I. ALLEGED FACTS

Mary Vann, a former server at the Lone Star Steakhouse & Saloon in Springfield, filed a two-count First Amended Complaint.

Count I, a Title VII claim against Lone Star Steakhouse & Saloon of Springfield, Inc. and Lone Star Steakhouse & Saloon, Inc. (referred to collectively as "the Lone Star Defendants"), alleges that Kirk Tregoning, the general manager at Lone Star, engaged in offensive and unwelcome touching and made sexually suggestive comments to Vann and other female employees. Vann claims that she was unable to work due to the physical and emotional injury caused by Tregoning's conduct, which resulted in her being constructively discharged from her position. She alleges that the Lone Star Defendants discriminated against her because of her sex by constructively discharging her, by tolerating and failing to prevent the sexual harassment, and by failing to take affirmative action to correct the unlawful employment practices.

Count II, a battery claim against Tregoning, alleges that on February 2, 1994, as Vann entered the kitchen at Lone Star, Tregoning grabbed her in a sexual fashion and when she resisted, knocked her to the floor, causing her injury. Vann also alleges that on other occasions, Tregoning intentionally, maliciously, repeatedly and offensively had physical contact with her. Vann further claims that as a direct result of Tregoning's conduct, she lost her job and suffered personal and emotional injury.

II. PROCEDURAL ISSUE

Dr. Deborah Townsend, the psychotherapist who treated Plaintiff after the incidents in question, was disclosed by Plaintiff as an expert. Plaintiff stated in her Rule 26 Disclosure that Dr. Townsend would testify and make "assessment of Plaintiff's psychological response to the events surrounding this cause of action."

The Lone Star Defendants requested Plaintiff sign a Release authorizing Dr. Townsend to release to Defendants any and all psychiatric, psychological, and medical records relating to Plaintiff. Plaintiff did so. The Release had a paragraph that stated:

  Under the provisions of the Mental Health and
  Developmental Confidentiality Act, you may not
  redisclose any of this information unless the
  person who consented to this disclosure
  specifically consents to such redisclosure.
Plaintiff claims this demonstrates that the Release was drafted
in conformity with the Illinois Mental Health and Developmental
Disabilities Confidentiality Act, 740 ILCS 110/1 et seq., which
also provides that the:

   . . personal notes of a therapist are the work
  product and the personal property of the therapist
  and shall not be subject to discovery in any
  ...

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