United States District Court, E.D. Missouri, Eastern Division
TANYA M. BURT, Plaintiff,
CHARTER COMMUNICATIONS, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs Motion to Quash
Amended Subpoena to Dr. Daniel Kramer (ECF No. 78) and
Defendant's Motion to Compel Production of Plaintiff s
Medical Records (ECF No. 80). The motions are fully briefed
and ready for disposition.
case stems from the termination of Plaintiff s employment as
a Human Resources Director for Defendant Charter
Communications, Inc. ("Charter") in the Spectrum
Reach Business Unit. On March 28, 2018, Plaintiff filed her
First Amended Complaint alleging discrimination and
retaliation under the Family and Medical Leave Act
("FMLA"), 29 U.S.C. §§ 2601, et
seq.\ discrimination under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§
12101, er seq.; and discrimination under the
Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat.
§§213.010, et seq.
March 23, 2018, Plaintiff filed a motion to quash a subpoena
issued to Dr. Daniel Kramer because her First Amended
Complaint withdrew her claims for emotional distress damages
under the ADA and MHRA. The subpoena directed Dr. Kramer to
testify at a deposition regarding Plaintiffs medical
treatment. Plaintiff also claims that communications with Dr.
Kramer regarding mental health issues are protected by
privilege. Defendant responds that it seeks unprivileged fact
testimony from Dr. Kramer regarding Plaintiffs medical
treatment leading to her FMLA leave. Defendant also asserts
that Plaintiff has waived any privilege because she placed
her mental health and ability to work at issue in this case.
In addition, Defendant has filed a motion to compel
Plaintiffs medical records.
review of the motions and related memoranda, the Court finds
that Plaintiffs medical records are relevant and proportional
to the needs of the case. Fed.R.Civ.P. 26(b)(1). Plaintiffs
medical history is clearly at issue in her claims that
Defendant discriminated against her for taking
medical leave under the FLMA and on the basis of her
medical condition under the ADA. See Lutzeier v.
Citigroup Inc., No. 4;I4CVI83 RLW, 2015 WL 1853820, at
*2 (E.D. Mo. Apr. 22, 2015) (finding medical information
could shed light on plaintiffs ability to work);
Hemminghaus v. Missouri, No. 4:1 ICV736 CDP, 2012 WL
2154522, at *5 (E.D. Mo. June 13, 2012) (ordering plaintiff
to execute medical releases from doctors with whom plaintiff
met during the relevant time period pertaining to medical
leave in FMLA case); Calder v. TCI Cablevision of
Missouri, Inc., No. 4:99-CV-01005(CEJ), 2001 WL 991459,
at *1 (E.D. Mo. July 21, 2001) (finding plaintiffs medical
history relevant where her cause of action was based in part
on the ADA).
while Plaintiff claims that her medical records are protected
by the federal psychotherapist-patient privilege, the Court
agrees with Defendant that Plaintiffs medical records with
her primary care physician are not privileged. The Supreme
Court has held "that confidential communications between
a licensed psychotherapist and her patients in the course of
diagnosis or treatment are protected from compelled
disclosure." Jaffee v. Redmond, 518 U.S. 1, 15
(1996). The Supreme Court also extended this federal
privilege to "confidential communications made to
licensed social workers in the course of psychotherapy."
Id. However, in the instant case. Dr. Kramer is
Plaintiffs primary care physician, not a psychotherapist.
While Missouri law recognizes the physician-patient
privilege. Plaintiffs' claims arise primarily from
federal law under the FMLA and the ADA. As such, federal law
applies, and this Court is not required to recognize state
law privileges. Evantigroup, LLC v. Mangia Mobile,
LLC, No. 4:11-CV-1328 CEJ, 2013 WL 141605, at *1 (E.D.
Mo. Jan. 11, 2013) ("[I]n a fundamentally federal
proceeding, the court may not recognize a state-created
privilege."). In addition, to the extent that Dr. Kramer
treated Plaintiff specifically for mental health reasons,
"the facts regarding the occurrence of psychotherapy,
such as the identities of the providers or the dates of
treatment, are not privileged and thus are subject to
disclosure." Jiang v. Porter, No. 4:15-CV-1008
(CEJ), 2016 WL 3015163, at *5 (E.D. Mo. May 26, 2016).
the Court finds that Plaintiff has waived the
psychotherapist-patient privilege. Plaintiff states in her
complaint that she experienced emotional difficulties and
felt like she was falling apart, for which her doctor placed
her on FMLA leave. (First Am. Compl. ["FAC"] ¶
19, ECF No. 84) Further, this medical condition forms the
basis of Plaintiff s ADA claim. (Id. at ¶ 36)
"[W]hen a party puts [her] mental state in issue through
some action of [her] own designed to advance [her] interests
in the case (such as by claiming a disability involving [her]
mental state, by basing [her] claim upon the
psychotherapist's communications with [her], or
selectively disclosing part of a privileged communication)
that the privilege is waived." Kronenberg v. Baker
& McKenzie LLP, IM F.Supp.2d 983, 986 (N.D. 111.
2010) (citation omitted); see also Langenfeld v.
Armstrong World Indus., Inc., 299 F.R.D. 547, 553 (S.D.
Ohio 2014) (Tmding plaintiff waived psychotherapist-patient
privilege where she alleged a specific mental disorder in her
the Court finds that Defendant is entitled to responses to
Requests for Production Numbers 20 and 22, including the
execution of medical release forms. The Court is mindful that
"[t]he psychotherapist privilege serves the public
interest by facilitating the provision of appropriate
treatment for individuals suffering the effects of a mental
or emotional problem" and that rejection of this
privilege could have a chilling effect on confidential
conversations between psychotherapists and their patients.
Jaffe, 518 U.S. at 11-12. However, specific to the
facts of this case, Plaintiffs medical records, including
mental health treatment during the applicable time, are
central to her claims that Defendant terminated her
employment based on unlawful discrimination for exercising
her FMLA rights and based on her disability under the ADA.
The Court also notes that any confidentiality concerns should
be eliminated by the Consent Protective Order.
IT IS HEREBY ORDERED that Plaintiffs Motion
to Quash Amended Subpoena to Dr. Daniel Kramer (ECF No. 78)
IS FURTHER ORDERED that Defendant's Motion to
Compel Production of Plaintiffs Medical Records (ECF No. 80)
IS FINALLY ORDERED that the parties' Consent
Motion for Extension of Deadlines (ECF No. 94) is
GRANTED as follows: The parties shall
complete discovery no later than May 2,
2018. Dispositive motions shall be filed no
later than May 14, 2018. Opposition
briefs shall be filed no later ...