Opinion
CIVIL NO. 17-00571 HG-WRP
2021-11-05
Elizabeth A. MUELLER, Plaintiff, v. State of Hawaii DEPARTMENT OF PUBLIC SAFETY; Freddie Carabbacan; Nolan Espinda, Defendants.
Margery S. Bronster, Lanson K. Kupau, Matthew John Terry, Bronster Fujichaku Robbins, Honolulu, HI, for Plaintiff. Kanoelani Seumanu Kane, Hawaiian Electric Co., Inc., Marie Manuele Gavigan, Department of the Attorney General, Honolulu, HI, for Defendant Freddie Carabbacan. David N. Matsumiya, Marie Manuele Gavigan, Caron M. Inagaki, Department of the Attorney General, Honolulu, HI, for Defendant Nolan Espinda.
Margery S. Bronster, Lanson K. Kupau, Matthew John Terry, Bronster Fujichaku Robbins, Honolulu, HI, for Plaintiff.
Kanoelani Seumanu Kane, Hawaiian Electric Co., Inc., Marie Manuele Gavigan, Department of the Attorney General, Honolulu, HI, for Defendant Freddie Carabbacan.
David N. Matsumiya, Marie Manuele Gavigan, Caron M. Inagaki, Department of the Attorney General, Honolulu, HI, for Defendant Nolan Espinda.
ORDER REGARDING PLAINTIFF'S MEDICAL RECORDS AT EXHIBITS 1037-1189
Helen Gillmor, United States District Judge
Defendants Department of Public Safety and Nolan Espinda seek to introduce 153 medical records of Plaintiff Mueller, which are marked as Exhibits 1037-1189. (Defs.’ Third Am. Ex. List at pp. 4-16, ECF No. 446).
The medical records are from the various Department of Public Safety correctional institutions Plaintiff was in over a five year period. The voluminous records contain both physical and mental health information. There are numerous references to private, personal health information that has no relevance to the claims before the Court.
The records start in July 2014, the month in which the encounter with Defendant Carabbacan took place, and continue through the following five years to July 2019. The records are each authored by whomever Plaintiff saw on the date for treatment. They are made by a wide variety of providers; individuals such as nurses, doctors in various specialties, and many different psychiatric social workers. Many records contain abbreviated references to previous diagnoses, treatments, and procedures without sufficient context for an understanding of the material.
The records frequently contain hearsay without attribution to the origin of the information.
Plaintiff objects to their admission. (ECF No. 454).
ANALYSIS
I. Psychotherapist-Patient Privilege
Defendants seek to introduce into evidence Plaintiff's medical records for the treatment she received while she was in the custody of the Department of Public Safety.
Plaintiff argues that the medical records are privileged and are inadmissible.
Defendant argues that the privilege has been waived.
A. Medical Records Between A Psychotherapist And A Patient Are Privileged
In Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the United States Supreme Court found that confidential communications between a psychotherapist and her patients, in the course of diagnosis and treatment, are protected by the psychotherapist-patient privilege. The Court stated that the privilege could be waived. Id. at 15 n.14, 116 S.Ct. 1923.
Here, Defendants claim that Plaintiff has waived the privilege under two theories.
First, Defendants claim that Plaintiff signed a waiver that allowed for her medical records to be disclosed to the Defendants’ counsel. The waiver that allowed Plaintiff's medical records to be disclosed in discovery does not constitute a waiver for her records to be admitted at trial or discussed by her treating physician during testimony at trial. Rather, the waiver is limited to the production of the documents during discovery and the possibility that the records could be admissible if relevant and more probative than prejudicial. Defendants’ reliance on the waiver for discovery purposes is misplaced.
Second, Defendants claim that Plaintiff waived the privilege by placing emotional distress at issue in the case.
B. Waiver Of The Psychotherapist-Patient Privilege Is Narrowly Construed
Courts in the Ninth Circuit have found that a waiver of the psychotherapist-patient privilege should be narrowly construed, particularly in civil rights cases where Congress has placed much importance on litigants’ access to the courts and the remedial nature of such suits. Fitzgerald v. Cassil, 216 F.R.D. 632, 639-40 (N.D. Cal. 2003).
Plaintiff has raised state law claims for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress, for which her mental health is an issue. Plaintiff's mental health history is relevant for trial due to the claims she has asserted, but the claims do not require the unlimited exposure of Plaintiff's physical and mental health history.
In this case, Plaintiff has waived the psychotherapist-patient privilege for communications in Plaintiff's medical records that are directly related to her state law claims for which her emotional distress is at issue. See Dixon v. City of Lawton, 898 F.2d 1443, 1450-51 (10th Cir. 1990) (explaining that claims of emotional distress do not authorize unlimited exposure of a plaintiff's previous mental health condition but are limited to the communications related to issues necessarily injected into the lawsuit by the plaintiff).
II. Plaintiff's Medical Records Are Not Relevant For Plaintiff's Section 1983 Cruel And Unusual Punishment Causes Of Action
In addition to her state law tort claims, Plaintiff has alleged civil rights claims pursuant to 42 U.S.C. § 1983.
Specifically, Plaintiff has alleged violations of the Eighth and Fourteenth Amendments to the United States Constitution relating to a sexual assault she claims she suffered at the hands of Defendant Deputy Sheriff Freddie Carabbacan while she was in the custody of the Department of Public Safety.
Plaintiff's emotional distress is not an issue for her civil rights claims. The Ninth Circuit Court of Appeals has explained that an inmate need not prove that an injury resulted from sexual assault in order to maintain a cruel and unusual punishment claim pursuant to the Eighth Amendment. Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000).
III. Plaintiff's Medical Records May Be Relevant For Certain Issues Relating To Plaintiff's Emotional Distress Claims
Plaintiff has asserted state law tort claims where she claims she suffered emotional distress as a result of the negligent and intentional acts of the Defendants. The nature of Plaintiff's claims places her medical records and her emotional distress at issue for trial. Plaintiff's claims, however, do not allow any and all medical information to be introduced at trial. Rather, the Court must weigh the probative and prejudicial value of any information contained in Plaintiff's medical records pursuant to Federal Rule of Evidence 403.
In the lengthy pretrial proceedings, the Court repeatedly asked the Defendants to clarify the testimony sought by indicating which medical records they believe are relevant to the issues raised by the Plaintiff. Defendants have failed to provide any particularity, analysis, or explanation. Rather, Defendants have consistently stated that the entire content of all 153 of Plaintiff's medical records, spanning the five year history, are relevant and admissible.
The Court was forced to delay trial by one day to hold another pretrial conference on October 27, 2021, in order to settle the admissibility of the exhibits. The Court inquired with Defendants regarding the admissibility of the hundreds of pages of Plaintiff's medical records given that Defendants have not provided a medical expert to explain them. (Minutes from October 27, 2021 Hearing, ECF No. 474).
At the hearing, the Court asked Defendants’ counsel which specific medical records she was seeking to use at trial and what specific information in the records she believed was most relevant. Defendants’ counsel began listing numbers of the medical records. The Court stopped Defendants’ counsel's list, after 50, and again inquired as to the basis for the admission of the medical records. Given that the records came from various correctional centers, have dozens of different treatment providers, and concern a multitude of health issues, what are the topics of concern? Counsel repeatedly answered, "I want to refresh Plaintiff's recollection and question her about them." While there may be a basis for specific records to be used to refresh a witness's recollection, Defendants’ counsel would not articulate a reasonable basis for which she intended to use the documents.
Defendants’ counsel indicated that she wished to use each of the 50 plus documents to ask Plaintiff whether she told her medical provider at the specific medical appointments between July 2014 and July 2019 about the incident with Defendant Carabbacan.
The Court explained to Defendants’ counsel that certain medical records could be used to refresh Plaintiff's recollection, but that Plaintiff could not possibly remember what she said at each specific medical appointment she had over a five-year time span. The 50-plus medical records could not be "reasonably calculated to revive [Plaintiff's] present recollection." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 236, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). The Court will permit a writing to be used to refresh recollection only if it is satisfied that the witness will ultimately testify from her own recollection and not merely reiterate the writing just consulted. 4 Weinstein's Federal Evidence § 612.03[1] (2021). The hundreds of pages of medical records cannot possibly refresh Plaintiff's recollection as to what happened at each medical appointment, but would likely instead result in her testifying as to what is stated in the medical records rather than from her own recollection.
IV. The Court Is Unable To Balance The Probative Value Of Each Of The 153 Medical Records Against The Risk Of Unfair Prejudice Pursuant To Fed. R. Evid. 403
The Court finds that a limited waiver of the psychotherapist-patient privilege would be available to discuss specific medical records that are directly relevant to Plaintiff's claims for emotional distress. Defendants’ counsel, however, has failed to identify specific medical records that she believes would be admissible and relevant to Plaintiff's emotional distress claims. Defendants’ counsel refused to provide sufficient particularity as to which records she intended to use. Defendants have failed to provide any analysis or argument concerning the prejudicial value of the medical records despite numerous continuances and opportunities to file memoranda to address these issues that the Court has pointed out to Defendants. Defendants have failed to provide the Court with a basis to admit hundreds of pages of medical records that contain prejudicial material, irrelevant information, and inadmissible expert opinion that would cause undue delay and confuse the jury.
Defendants have prevented the Court from making an analysis as to the medical records’ probative value against the risk of unfair prejudice pursuant to Fed. R. Evid. 403. In addition, without identifying which portions of which records Defendants intend to use, the Court is unable to evaluate the records against other rules of inadmissibility such as foundation and hearsay.
The majority of the records include highly prejudicial information that was subject to a prior Motion in Limine ruling. (ECF No. 322). Defendants have made no effort to redact or limit the prejudice of the proposed medical records.
In addition, the records contain double and triple hearsay for which Defendants’ counsel has provided no explanation or argument as to why the records are otherwise admissible or subject to exceptions under hearsay. Defendants do not have a medical expert to testify about the records. The Court cannot properly assess the medical records’ admissibility pursuant to Fed. R. Evid. 403.
V. Apportionment Of Emotional Distress Damages
A. Apportionment Of Plaintiff's Emotional Distress Is Not Possible In This Case
Plaintiff seeks emotional distress damages for her state law tort claims. Defendants seek to introduce Plaintiff's medical records to argue apportionment to the jury. Defendants claim that Plaintiff's emotional distress should be subject to apportionment because Plaintiff has a history of mental illness and has been previously diagnosed with Post-Traumatic Stress Disorder.
Defendants rely on caselaw where courts have found that a prior physical injury could be apportioned from the damages that a plaintiff sustained from a subsequent accident resulting in different physical injuries.
There are no accidents or physical injuries alleged in this case. Defendants have not cited to, and the Court has been unable to locate, any cases where a court has found that apportionment is available where the harm is limited to emotional distress.
It is well-settled that the question of whether apportionment is reasonable is a legal one to be decided by the judge, not the jury. Hazle v. Crofoot, 727 F.3d 983, 994-95 (9th Cir. 2013). If a court finds it impossible to apportion damages between a prior injury and the damages claimed by the plaintiff, then the defendants are liable for the entire amount established by the plaintiff. McKinnon v. Kwong Wah Rest., 83 F.3d 498, 506 (1st Cir. 1996) ; see also Breazell v. Permian Trucking & Hot Shot, LLC, 2017 WL 3037432, *5 (W.D. Tex. July 18, 2017).
Here, there is no reasonable basis to attempt to apportion damages because of Plaintiff's pre-existing mental health issues. The jury must decide if Plaintiff is entitled to damages for any emotional distress trauma they find she experienced as a result of an action by a Defendant in this case. There are not distinct harms that could readily be apportioned out by the jury such as in a motor vehicle accident.
B. Hawaii Law Provides That A Defendant Is Liable For The Entire Damage Caused When Apportionment Is Not Possible
In Montalvo v. Lapez, 884 P.2d 345, 357 (Haw. 1994), the Hawaii Supreme Court adopted the holding in Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, 813 (1963), finding that a defendant who is the cause of the trauma is responsible for the entire damage when apportionment is not possible.
The court in Newbury explained that:
[W]here a pre-existing diseased condition exists, and where, after trauma aggravating the condition, disability and pain result, and no apportionment of the disability between that caused by the pre-existing condition and that caused by the trauma can be made, in such case, even though a portion of the present and future disability is directly attributable to the pre-existing condition, the defendant, whose act of negligence was the cause of the trauma, is responsible for the entire damage.
Id.
Hawaii courts look to the Restatement for guidance. Restatement (Second) of Torts provides for apportionment of damages in certain situations. Restatement (Second) of Torts § 433A. The comments explain that where two or more causes combine to produce a single result, incapable of division on any logical or reasonable basis, courts have refused to make an arbitrary apportionment and each of the causes is charged with responsibility for the entire harm. Id. at cmt. i, at 439.
Apportionment is akin to an affirmative defense and may only be asserted when damages are divisible. Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1293-94 (8th Cir. 1997). A defendant gets the benefit of apportionment of damages only if there is a reasonable basis for determining the contribution of each cause to a single harm, if not the defendant is liable for the whole. Stevens v. Bangor & Aroostook R. Co., 97 F.3d 594, 602 (1st Cir. 1996).
Here, no reasonable apportionment of emotional distress between Plaintiff's pre-existing mental health condition and any suffering caused by a Defendant in this case can be made. A defendant who is found to be the cause of emotional distress in this case is responsible that damage. Montalvo, 884 P.2d at 357.
Plaintiff's medical records are not relevant for apportionment. Defendants are precluded from arguing apportionment to the jury.
CONCLUSION
Refresh Recollection
A limited waiver of Plaintiff's psychotherapist-patient privilege applies for communications in Plaintiff's medical records that are directly related to her state law claims for which her emotional distress is at issue. They could be used to refresh Plaintiff's recollection, if necessary, but they must actually refresh her recollection and may not just provide a basis for Plaintiff to recite information contained in them rather than from her memory.
Admissibility
Defendants have not provided the Court with a sufficient basis to evaluate the admissibility of Plaintiff's medical records marked as Exhibits 1037-1189. The Court has insufficient information to balance the probative value of the records against unfair prejudice pursuant to Fed. R. Evid. 403.
Apportionment
Plaintiff's medical records are not relevant for apportionment as it is not available in this case.
IT IS SO ORDERED.