The opinion of the court was delivered by: Magistrate Judge Jeffrey
MEMORANDUM OPINION AND ORDER INTRODUCTION AND FACTUAL BACKGROUND Mr. Flowers has sued the defendants under 42 U.S.C. §1983, claiming that in May 2007 he was beaten while in custody at the Will County Correctional Facility. The Complaint seeks compensatory and punitive damages for physical injuries and what is laconically described as "emotional[ ]" "suffer[ing]." (Complaint, ¶28). Mr. Flowers was seen for a time after the incident by a psychologist/social worker. A question arose during discovery regarding the effect of the claim for emotional damages on the psychotherapist-patient privilege, which shields from disclosure any confidential communications between a psychotherapist or social worker and a patient in the course of diagnosis or treatment. Jaffe v. Redmond, 518 U.S. 1, 15 (1996).
Counsel for the parties reached an agreement (or at least they thought they had) on the record at the plaintiff's deposition that he would not introduce any expert testimony at trial regarding his emotional suffering, and that he was limiting his claim to what is often called "garden variety" emotional damages. The parties agreed to abide by Judge Kennelly's formulation in Santelli v. Electro-Motive, 188 F.R.D. 306 (N.D.Ill. 1999), under which evidence of "garden variety" emotional damages is limited to "the negative emotions that [plaintiff] experienced as the intrinsic result of defendant's alleged conduct," such as "humiliation, embarrassment, and other similar emotions," but excluding "any resulting symptoms or conditions that [he] might have suffered," including "sleeplessness, nervousness, [and] depression...." Santelli, 188 F.R.D. at 309. No expert evidence is presented on the emotional damage issue, and there is no waiver of the privilege. (Plaintiff's Motion For Protective Order, Ex. A, Transcript of Deposition, 5/4/10, of Jeffrey Flowers at 165)("Motion"); (Response to Motion to Compel, Ex. A., at 465, 498, et seq.)("Response").*fn1
This sort of arrangement is not uncommon in this District, see e.g.,
Breunlin v. Village of Oak Park, 2008 WL 1924894, 2 (N.D.Ill. 2008);
Saket v. American Airlines, 2003 WL 685385 (N.D.Ill. 2003), and should
have settled the waiver and other related questions.*fn2
But as so often occurs in these cases, it became apparent
that the parties had very different notions of what could grow in the
The dispute surfaced when counsel for the defendants at the July 16, 2010 session of Mr. Flowers' deposition asked him whether he had problems leaving his home because of what occurred at the jail. Mr. Flowers said that he did and that he had "anxieties about it, yes." (Response, Ex. A at 466-467). When asked, "why do you not leave the house since May 2, 2007," Mr. Flowers responded that he feared "retaliation by the Will County Sheriff's Department, the Joliet Police Department, and any Will County law enforcement agency in my town." He went on to say that whenever he saw any of these people, it "[j]ust brings back what happened on May 2nd of 2007, and I'm not trying [sic] to deal with it. So that is why I'm limited to when I leave the house or who I go out the house with." (Response, Ex. A at 467). Mr. Flowers said he now feared "anybody with a gun," and went on to say that he meant that he feared law enforcement officers. He said that he was fearful of retaliation and that he is constantly "in fear of the people involved in this case." (Response, Ex. A at 472, 467).
Counsel for the plaintiff announced that he planned to introduce evidence at trial that plaintiff "does not want to leave his home because he's afraid of the defendants," whom he believes will retaliate against him. (Response, Ex. A at 502). He posed the issue as being whether the plaintiff's on-going fear that if he left his house he was going to be harmed by Joliet or Will County officers constituted "garden variety" emotional damages. (Response, Ex. A at 506-508). Mr. Horowitz thought it did; Mr. Moran disagreed. The plaintiff's Motion for Protective Order followed.
The Motion seeks to preclude defendants from obtaining discovery into plaintiff's mental health records and from deposing his psychologist/social worker. Finally, the Motion seeks to have returned any mental health records the defendants have already obtained in discovery.*fn3 As narrowly phrased in the Motion, the issue is whether testimony by Mr. Flowers at trial that as a result of his encounter with the defendants he has a "distrust of police and correctional officers" is outside the scope of garden variety damages. (Motion, at 1). The Motion answers the question in the negative by positing that the emotional damages claimed by Mr. Flowers "relat[e] only to 'the negative emotions that [he] experienced essentially as the intrinsic result of the defendants' alleged conduct,' i.e., the pain and suffering and the feelings of fear, humiliation and anxiety he experienced as a result of the Defendant Officers' misconduct." (Motion, at 2; Ex. A to Motion at 499-500). But this begs the question and understates the issue by neglecting much of the deposition testimony, which it is fair to assume, gives a preview of what is to come at trial.*fn4
The defendants are concerned that plaintiff's claim of persisting fear and anxiety about leaving the house is a subtle claim of agoraphobia and does not qualify as garden variety emotional damage. (Response, at 2, ¶ 4).*fn5 According to the Response, if plaintiff chooses to present the kind of evidence at trial about which he testified at the deposition, he should be deemed to have waived his psychotherapist-patient privilege as to his mental health treatment.
After review of the Motion, the Response, and the snippets of deposition testimony submitted by the defendants in response to the Motion, I asked the parties to provide me with any additional excerpts of the deposition that they thought bore on the question presented by the Motion. The additional pages of the deposition provided by the defendants some days ago are significant and revealing. What emerges from the plaintiff's testimony is a claim of emotional suffering that transcends garden variety emotional harm permitted by Santelli and scores of other cases.
During the deposition, plaintiff's counsel was emphatic that his client "suffers from a psychological condition" and has "psychological issues." (Supplement to Ex. A to Response, at 88, 138)(#139). Mr. Flowers' own portrayal of his emotional suffering -- even in its obstructed form (and taken as true) -- if not consistent with this assessment, is inconsistent with emotional damage that is "intrinsic" to what occurred on May 2, 2007.*fn6
Mr. Flowers said that he continues (three years later) to get depressed about what happened with the defendants. (Id. at 84-85). He said, in answer to the question "you told me earlier you don't leave your house much, right," "not like I used to." (Id. at 95). In fact, he said he hadn't gone fishing in the three years after his encounter with the defendants in May 2007. (Id.). He was, he said, still depressed, because of what occurred on May 2nd. (Id. at 86).*fn7 Mr. Flowers said that he had "anxieties" about leaving his house as a consequence of the defendants' conduct and his fear of retaliation by law enforcement officers. (Id. at 466-467). So significant were these anxieties, that he said he was "limited to when I leave the house or who I go out [sic] the house with." (Id. at 467). Before Mr. Flowers could answer the question whether his "anxiety prevent[ed] [him] from doing any activities right now," his lawyer interjected, saying "hold on," claiming that Mr. Flowers had just said "he doesn't have an anxiety," and accused defense counsel of engaging in a "form of manipulation pattern [sic]." (Id. at 469). Mr. Flowers ultimately testified that he was in constant fear of the people involved in the case, and referred to "what you call anxiety attacks" about the people involved in the case. (Id. at 472, 477).
Despite repeated interruptions of the questioning by defense counsel, Mr. Flowers said that he did stay at home "now more often than [he] ever did because of what occurred" on May 2nd. (Id. at 475). He also said that he was fearful of "any Will County law enforcement agency" -- that is where his home is -- and that he was comfortable leaving his home to go to places in Will County only if he was "with people that have never been in trouble, that are retired citizens that I know the Joliet police will not test and Christians that go to church every day...." (Id. at 476). In the end, when asked whether he was affected in any other way emotionally than what he had described, Mr. Flowers said:
"Sir, I'm going to be effected [sic] my whole life by this." A moment later he again said that "[d]ue to the abuse at the hands of Will County Sheriff and all people involved, I'll have to deal with this my whole life." (Id. at 483-484).
Shortly thereafter, he said that every time his back is hurting or he
sees a police car in Will County he experiences "anxieties," (id. at
486), which he went on to explain required him to deal with and to
think about the individuals who hurt him and to think about "that I
really don't know who they are face-to-face that would do this" --
"I'm talking about the people in Will County." (Id. at 489). He
concluded by saying that he, in fact, had ongoing emotional reactions
as a consequence of the events of May 2nd
but he could not state what they are "until I see them or address them
on a daily basis." (Id. at 489). But he was quite emphatic as to one
of those situations: "every time I go through Crest Hill I think how a
cop tried to put me in prison lying." (Id. at 490).*fn8
The deposition ended with Mr. Flowers saying that his
relationship with his daughter was not one of the causes of his
"emotional problems," and that he did not know whether he had any
"emotional problems" outside of what occurred on May
2nd. (Id. at 497).
The above excerpts from the deposition came from the materials provided by the defendants. The plaintiff did not file any additional transcript ...