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Elizabeth Awalt, As Administrator of the Estate of Robert Awalt v. Terry Marketti

October 29, 2012

ELIZABETH AWALT, AS ADMINISTRATOR OF THE ESTATE OF ROBERT AWALT, PLAINTIFF,
v.
TERRY MARKETTI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff Elizabeth Awalt brought this suit against certain personnel who worked at or supervised the Grundy County Jail (collectively "the Grundy County Defendants"), as well as certain medical care providers who serviced the Jail (collectively "the Medical Care Defendants") after her husband died at the Jail as a result of the Defendants' alleged violations of his constitutional rights or their alleged murder of him. (Doc. 28; First Amended Complaint).

The Grundy County Defendants now move to compel discovery against Mrs. Awalt (Doc. 72), and she asserts the psychotherapist-patient privilege in response.*fn1

The Defendants seek documents obtained by Mrs. Awalt concerning Mr. Awalt's mental health care provided by the Illinois Department of Corrections and waivers for those documents, they also seek documents and waivers related to psychological evaluations of Mr. Awalt conducted by the Social Security Administration, waivers for Mr. Awalt's records at Provena St. Joseph's Hospital Mental Facilities and Fort Logan Mental Hospital, and waivers and records relating to Mrs. Awalt's treatment received at Guardian Angel Community Services, a counseling center, and documents and waivers from the hospital where Mrs. Awalt allegedly sought medical treatment for domestic abuse by Mr. Awalt.*fn2

The manner in which Mr. Awalt died is of critical importance to Mrs. Awalt's theories of liability in this case. The Grundy County Coroner determined that Mr. Awalt's death was caused by suffocation from the presence of a sock in his mouth, presumably in anticipation of a seizure. Mrs. Awalt has alleged two alternative theories of death in this case. First, she alleges that Mr. Awalt's seizure was caused by the Defendants' failure to provide him with adequate medical care in violation of his constitutional rights secured by the Eighth and Fourteenth Amendments to the Constitution. Alternatively, she alleges that the Grundy County Defendants murdered Mr. Awalt by asphyxiating him when they allegedly stuffed a sock down his throat. Defendants argue that Mrs. Awalt's first theory is contrary to the evidence, which they allege proves that anti-seizure medication was administered to Mr. Awalt and was in his system at the time of his death. Defendants also contend that the murder theory is refuted by evidence that Mr. Awalt allegedly committed suicide. The Defendants argue that Morris Hospital records disclosed by Mrs. Awalt state that on the night of Mr. Awalt's death she told hospital staff that her husband suffered from bi-polar disorder and manic depression. Mrs. Awalt also disclosed a treatment record which states that in 2008 Mr. Awalt was prescribed Prozac, a psychiatric medication, as well as Social Security Administration documents that claim manic depression, bi-polar disorder, and seizures as grounds for disability applications that Mr. Awalt filed with the agency in 2008, 2009, and 2010.

The Defendants argue that Mrs. Awalt's continuing denial of Mr. Awalt's history of mental health conditions, coupled with her disclosure of documents evidencing potentially long-standing and sporadically medicated mental health conditions, leave them with no choice but to subpoena Mr. Awalt's mental health records to investigate the possibility that Mr. Awalt's death was indeed caused by suicide. In her Amended Complaint, Mrs. Awalt alleges as one of her theories pertaining to the cause of Mr. Awalt's death that one or more of the Grundy County Defendants intentionally put a sock in Mr. Awalt's throat causing him to asphyxiate. The Defendants argue that they must be permitted to investigate every possible cause of death to refute this claim, including the possibility that Mr. Awalt took his own life. They argue that this includes discovery of Mr. Awalt's mental health records kept by the Illinois Department of Corrections, the Social Security Administration, and Provena St. Joseph's Hospital Mental Facilities and Fort Logan Mental Hospital. The Defendants assert that in light of the evidence disclosed so far and Mrs. Awalt's alternative theory of liability concerning the cause of her husband's death they must be permitted to examine Mr. Awalt's psychological records to discover the nature and extent of any mental illnesses he may have had in the period before his death to present the defense that suicide was the actual cause of his death.

In addition, the Defendants seek records pertaining to Mrs. Awalts alleged treatment for domestic abuse by Mr. Awalt so that they can paint a picture of the Awalt's relationship that undermines Mrs. Awalt's claim of damages for loss of consortium and severe emotional distress. To these ends the Defendants seek records from Guardian Angel Community Services, a counseling center, as well as medical records from treaters who may have treated Mrs. Awalt for domestic abuse by Mr. Awalt. For the reasons stated herein, the Defendants' Motion to Compel all of Mr. Awalt's psychological records as well as Mrs. Awalt's Guardian Angel records is denied because these documents that they seek discovery of from Mrs. Awalt are protected from compelled disclosure by the federal common law psychotherapist-patient privilege. The Defendants' Motion is granted with respect to medical records pertaining to Mrs. Awalt's treatment for domestic abuse, and Mrs. Awalt is hereby ordered to sign a waiver permitting the Defendants to subpoena records from treaters relating to her treatment for domestic abuse by Mr. Awalt.

II. Discussion

Mrs. Awalt argues that the requested discovery materials are covered by the federal common law psychotherapist-patient privilege recognized by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996), and thus are protected from compelled disclosure by the Defendants. The Defendants argue that Mrs. Awalt's assertion of privilege is overbroad and that such a blanket assertion of the psychotherapist-patient privilege is improper. Further, they argue that Mrs. Awalt has waived the protections of the psychotherapist-patient privilege in this case by, among other things, putting her emotional state at issue in the litigation by claiming damages for loss of consortium and sever emotional distress. They contend that Mr. and Mrs. Awalt's history of mental health issues, including records pertaining to Mrs. Awalt's counseling and treatment for domestic abuse, go to the heart of Mrs. Awalt's theory of liability in this case, as well as to the issue of damages to which she may be entitled. For these reasons, the Defendants ask this Court to compel disclosure of the requested documents as relevant and not protected by the psychotherapist-patient privilege.

The Defendants have not provided a single authority, and this Court is aware of none, which holds that the psychotherapist-patient privilege may be abrogated by a defendant's desire to present an alternative theory of liability to a jury. In particular, the Defendants here wish to argue that Mr. Awalt's death was the result of suicide, and that his psychological history as reflected in his medical records establishes that he was suicidal. The Defendants have not supplied any case which holds that psychological records are discoverable over the protections provided by the psychotherapist-patient privilege in order to present an alternative theory of suicide as the cause of death of the plaintiff, as represented by his estate. On the contrary, the Second Circuit and the District of Columbia Circuit have both concluded that the privilege is not overcome when the plaintiff's mental state is put into issue only by the defendants, which is the case here. See In re Sims, 534 F.3d 117, 134 (2nd Cir. 2008); Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007). In addition, the Eighth Circuit has held that a patient's suicidal tendencies and threats are not sufficient to waive the psychotherapist-patient privilege. See United States v. Ghane, 673 F.3d 771, 785 (8th Cir. 2012). Furthermore, in recognizing the psychotherapist-patient privilege, the Jaffee Court rejected a balancing approach to deciding whether the privilege applies, stating that "[m]aking the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege." Jaffee, 518 U.S. at 17. As the Second Circuit explained, "as confidentiality is a sine qua non, the Jaffee Court refused to endorse the proposition that a court could subject a claim of psychotherapist-patient privilege to a balancing test and deny protection if it found 'in the interests of justice, [that] the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests.'" See In re Sims, 534 F.3d at 131 (quoting Jaffee, 518 U.S. at 7). Thus, this Court may not balance the Defendants' need for Mr. Awalt's psychological records against Mr. Awalt's privacy interest in compelling mandated disclosure of those records.

i. Mr. Awalt's Illinois Department of Corrections Mental Health Records

The Defendants seek twenty-three pages of documents obtained by Mrs. Awalt from the Illinois Department of Corrections ("IDOC"), which she has withheld on the basis of the psychotherapist-patient privilege. In her initial Rule 26 disclosures Mrs. Awalt disclosed Mr. Awalt's medical records from the night of his death. Included in these records were notations by the hospital staff that Mrs. Awalt informed them that Mr. Awalt suffered from bi-polar disorder and manic depression. The discharge diagnosis in the hospital records was a possible suicide attempt. In response to the Defendants' discovery requests regarding these statements, Mrs. Awalt asserted that she was unaware that Mr. Awalt suffered from manic depression, bi-polar disorder, suicidal ideation or attempts, or other mental or psychological conditions prior to his death. Notwithstanding Mrs. Awalt's assertions that she was unaware that Mr. Awalt may have suffered from any mental health conditions, she disclosed records to the Defendants which indicate that the opposite is true.

Mrs. Awalt is aware that Mr. Awalt was evaluated by a psychologist or psychiatrist when he was incarcerated at the IDOC on an unknown date. She is also aware of the treatment because she has certain IDOC records in her possession which she has refused to produce, instead identifying them in her privilege log. The Defendants requested that Mrs. Awalt execute a waiver so they could obtain the records directly from the IDOC, which she has refused to do on the basis of the psychotherapist-patient privilege. Mrs. Awalt subpoenaed a copy of Mr. Awalt's IDOC file herself, including his medical and mental health records. She disclosed the documents received in response to the subpoena but withheld eight additional pages of documents, which are also identified in her privilege log. The Defendants assert that Mrs. Awalt should be compelled to disclose the documents she originally had in her ...


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