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Coleman v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

December 23, 2019

NEVEST COLEMAN, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants. DERRELL FULTON, aka DARRYL FULTON, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Sunil R. Harjani, United States Magistrate Judge.

         Defendants' Joint Motion Challenging Plaintiffs' Psychotherapist-Patient Privilege Assertion [Coleman 165, Fulton 183][1] asks this Court to: (1) find that Plaintiffs have waived any psychotherapist-patient privilege over their mental health and substance abuse records; and (2) enter Defendants' proposed Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and Mental Health Protective Order. Doc [165] at 1.

         For the reasons stated below, Defendants' motion is granted.

         Background

         In 1994, Plaintiffs Derrell Fulton and Nevest Coleman were arrested and charged with rape and murder. Doc. [123] at 1. Plaintiffs were subsequently convicted and sentenced to lengthy prison terms. Id. After spending over 23 years in prison, DNA testing on the victim's fingernails and clothing allegedly exonerated Plaintiffs. Id.; Doc. [168] at 2.

         In the instant, parallel litigations, Plaintiffs allege that they were wrongfully convicted and incarcerated as a result of the individually-named defendants' conduct. Doc. [123] at 2. More specifically, Plaintiffs allege that the individually-named defendants physically and mentally coerced false confessions from them. Id. Plaintiffs accordingly assert causes of action under 42 U.S.C. § 1983 for fabrication of evidence, coerced confession, conspiracy, and failure to intervene. Id. Plaintiffs further allege related state-law claims for malicious prosecution, intentional infliction of emotional distress, and conspiracy. Id. Against Defendant City of Chicago, Plaintiffs allege Monell claims. Id.

         Discussion

         I. Psychotherapist-Patient Privilege Has Been Waived

         Defendants have issued document subpoenas seeking Plaintiffs' mental health records from multiple institutions, including prisons where Plaintiffs were incarcerated. Doc. [168] at 2. For example, the Hill Correctional Center subpoena at issue in the parties' briefing seeks “all medical and mental health treatment records” relating to Nevest Coleman. [168-1] at 1. Plaintiff Coleman asserts that Plaintiffs enjoy psychotherapist-patient privilege over such mental health records. Doc. [168] at 2. Defendants argue that Plaintiffs waived their psychotherapist-patient privilege when they “put their emotional and psychological injuries at the forefront of their damages claims.” Doc. [165] at 4.

         The federal common law psychotherapist-patient privilege prevents disclosure of confidential communications between a licensed psychotherapist or social worker and a patient in the course of diagnosis or treatment. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). “The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Id. at 11. Like other testimonial privileges, the holder may waive the psychotherapist-patient privilege. Id. at 15 n.14.

         Courts following Jaffee have devised three approaches to determine when a patient has waived psychotherapist-patient privilege: (1) a broad application of waiver; (2) a narrow application; and (3) a middle ground. See generally Laudicina v. City of Crystal Lake, 328 F.R.D. 510, 513 (N.D. Ill. 2018). Under the broad approach, a patient waives psychotherapist-patient privilege “by merely seeking damages for emotional distress.” Id. at 513 (citation omitted). With the narrow application, a patient waives the privilege “only when she affirmatively relies on her communications with the psychotherapist or calls the therapist as a witness.” Taylor v. Chicago, No. 14 C 737, 2016 WL 5404603, at *2 (N.D. Ill. Sept. 28, 2016). According to the “middle ground” approach, a waiver does not occur when the patient is only seeking “garden variety” damages. Id. (citation omitted). Although there is no single definition for “garden variety” damages, at least one court in this Circuit has defined “garden variety” damages as meaning: “the ‘negative emotions that [plaintiff] experienced essentially as the intrinsic result of the defendant's alleged conduct,' but not the ‘resulting symptoms or conditions that she might have suffered.'” Flowers v. Owens, 274 F.R.D. 218, 225 (N.D. Ill. 2011) (quoting Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999)).

         Defendants argue that the Seventh Circuit's decision in Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006), adopts the broad approach. Doc. [165] at 5-6. Defendants specifically highlight the Oberweis Court's statement that, “[i]f a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state.” Id. at 5 (internal quotation marks omitted) (quoting Oberweis, 456 F.3d at 718). Defendants are not alone in their reading of Oberweis. See Laudicina, 328 F.R.D. at 514 (finding Seventh Circuit adopted broad approach in Oberweis and collecting cases within and outside Seventh Circuit recognizing broad waiver of psychotherapist-patient privilege in Seventh Circuit); Taylor, 2016 WL 5404603, at *2-3 (holding Seventh Circuit employed the broad approach in Oberweis). However, numerous judges in this district have analyzed this issue, with no consensus as to what the Seventh Circuit truly meant with its brief statement, without much analysis, in Oberweis.

         Coleman apparently argues against the broad approach by stating that Plaintiffs' pleading of emotional damages, alone, does not establish that they have waived the privilege over their entire mental health histories. Doc. [168] at 4. He further argues that courts in this district read Oberweis more narrowly, and that the majority of courts have found that a party waives psychotherapist-patient privilege by claiming damages in situations in which the party plans to introduce evidence of psychological treatment at trial. Id. at 6-7 (citing Caine v. Burge, No. 11 CV 8996, 2012 WL 6720597, at *2 (N.D. Ill.Dec. 27, 2012)).

         On these facts, the Court need not decide which waiver approach applies in this Circuit because Coleman has waived psychotherapist-patient privilege under any approach. Beginning with the broad approach, Coleman has pleaded damages for emotional distress. Doc. [144] ¶¶ 139 (emotional distress from lack of fair trial), 146 (emotional distress caused by conspiracy to deprive Coleman of constitutional rights), 165 (emotional distress from civil conspiracy), 178 (damages for state law ...


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