Koppel v. Moses

1

JAMES KOPPEL, Plaintiff, v. WILLIAM MOSES, Defendant.

No. 20-cv-11479-LTS

United States District Court, D. Massachusetts

November 8, 2022

MEMORANDUM AND ORDER ON THE DEFENDANT'S MOTION TO COMPEL THE PLAINITFF'S TREATMENT RECORDS

DONALD L. CABELL, U.S.M.J.

The defendant William Moses (“the defendant”) moves to compel the plaintiff James Koppel (“the plaintiff”) to produce treatment records from two licensed psychotherapists he saw while living in Boston.^[1] (D. 114) (D. 116-1, ¶¶ 2, 4). Among other arguments, the plaintiff submits that the psychotherapist-patient privilege codified in Massachusetts General Laws chapter 233, section 20B (“section 20B”), bars production. (D. 116). The defendant maintains the plaintiff waived the privilege by placing his mental condition at issue, a theory that corresponds to a statutory exception in section 20B, namely, section 20B(c). For reasons stated below, the motion (D. 114) is denied without prejudice.

I. BACKGROUND

By virtue of prior rulings (D. 98, 101), the operative amended complaint asserts just a single claim for defamation. (D 54). Familiarity with the record is presumed inasmuch as a Report and Recommendation sets out the factual allegations in the amended complaint. (D. 98, pp. 2-3). Briefly stated, the defendant's transmission of purportedly false and defamatory emails about the plaintiff on February 27 and March 2, 2020, provides the basis for the defamation claim. (D. 54, ¶¶ 31-35, 38, 82). A March 12, 2020, purported retraction repeats the March 2 defamatory communication. (D. 54, ¶¶ 36, 82).

The amended complaint alleges the March 2 email “caused at least $500,000” in damages consisting of injuries to the plaintiff's professional reputation and a loss of employment opportunities. (D. 54, ¶ 80). The pleading also seeks “noneconomic harms,” specifically “damages appropriate to compensate [the] plaintiff for anguish, humiliation, [and] opprobrium.” (D. 54, ¶¶ 80, 83). The plaintiff seeks “a six-figure payment” of damages for emotional distress. (D. 115-3, p. 4).

The plaintiff's affidavit, interrogatory answers, and deposition testimony assert the following. In September 2015, the plaintiff began attending psychotherapy sessions. (D. 115-3, p. 5) (D. 116-1). A “breakup” in a relationship precipitated the therapy. (D. 115-3, p. 5). Between the time he began therapy to “[s]ometime in 2021,” the plaintiff saw one or either of these psychotherapists “every week.” (D. 115-3, pp. 5-7). As time passed, the frequency of visits became sporadic. (D. 115-3, p. 6). By the time of the March 2, 2020 email, the plaintiff was attending therapy sessions “about once every three months.” (D. 115-3, p. 5).

After the March 2 email, the visits increased “for a time” to once a week. (D. 115-3, p. 6) (D. 116-1). Shortly after the email, the plaintiff began experiencing “sudden feelings of a ‘need to hide'” in public, ruminations, anger, loss of focus or concentration, and anxiety.^[2] (D. 115-3, pp. 7, 10) (D. 115-1, p. 8). His emotional distress manifested with symptoms of insomnia, “unpleasant dreams,” “trembling at some points during” ruminations, and a “loss of libido.” (D. 115-3, pp. 8-11, 13) (D. 115-1, p. 8). “At some point,” however, the plaintiff's insomnia resolved insofar as he began “sleeping better.”^[3] (D. 115-3, p. 9). His loss of libido lasted to approximately June 2020. (D. 115-3, pp. 10-11). More broadly, as this “case progressed, [the plaintiff's] emotions improved.” (D. 115-3, p. 7). There is no indication of a permanent inability to work. (D. 116, p. 8). He did not receive any new medication after the March 2020 emails and is unaware of any new diagnosis. (D. 116-1).

By affidavit, the plaintiff states he “will not call any therapist as a witness” or “attempt to rely on mental health treatment records” at trial. (D. 116-1). A response to a document request confirms he will not use any mental health treatment records. (D. 115-2, p. 11, No. 37). He also states he will not testify about mental health treatment. (D. 115-1, p. 8). As represented in his opposition memorandum, the plaintiff will not rely on expert testimony. (D. 116, p. 8).

II. DISCUSSION

In seeking production of the treatment records, the defendant argues the records are relevant and proportional to the needs of this case under Fed.R.Civ.P. 26(b)(5) (“Rule 26(b)(5)”). (D. 115, pp. 3-4). Focusing more on waiver than the initial application of the privilege, the defendant maintains the plaintiff “waived the psychologist-patient privilege” by “placing his mental condition at issue.” (D. 115, pp. 5-7). Moreover, allowing the plaintiff to seek emotional distress damages while denying the defendant an opportunity to obtain mental health treatment records is “‘contrary to'” a “‘basic sense of fairness and justice,'” according to the defendant. (D. 115, p. 7) (quoting Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997)).

The plaintiff maintains that Massachusetts law applies, i.e., section 20B, and protects the records. In any event, federal common law also deems the records privileged, according to the plaintiff. He further contends he did not waive the privilege under either Massachusetts or federal law. (D. 116). Relatedly, he asserts he is seeking only garden-variety emotional distress damages as opposed to compensation for an “extraordinary psychic injury.” (D. 116, pp. 8-10).

Where, as here, the action involves only state law claims grounded in diversity jurisdiction, Massachusetts law applies and undergirds the analysis of the psychotherapist-patient privilege. See Hache v. AIG Claims, Inc., Civil Action No. 20-CV-10652-PBS, 2022 WL 2161174, at *6 (D. Mass. June 15, 2022); Fertik v. Stevenson, Civil Action No. 12-10795-PBS, 2015 WL 13676687, at *2 (D. Mass. Mar. 3, 2015) (applying state law to medical peer review privilege because diversity jurisdiction applies and “only state claims are alleged”); Town of Grafton v. Pulte Homes of New England, LLC, Civil Action No. 12-10524-TSH, 2014 WL 2155035, at *6 (D. Mass. May 21, 2014) (“state law governs the question of privilege” in action “removed to federal court” based on diversity jurisdiction “involv[ing] no federal claims”).^[4]Cases relied on by the defendant setting out waiver of the psychotherapist-patient privilege under federal law^[5]are therefore distinguishable because they do not apply the two-pronged statutory analysis under section 20B(c). Compare Conklin v. Feitelberg, 146 F.Supp.3d 430, 43638 (D. Mass. 2015) (applying section 20B(c) and describing the interests of justice prong as a “balance of interests”), with Jaffee v. Redmond, 518 U.S. 1, 17 (1996) (“reject[ing] the balancing component of the [psychotherapist] privilege implemented by” lower court) (applying federal law).

In Massachusetts, “[a]ll communications between a licensed psychologist and the individuals with whom the psychologist engages in the practice of psychology are confidential.” Commonwealth v. Chesko, 486 Mass. 314, 323 (2020) (quoting M.G.L. c. 112, § 129A, and citing M.G.L. c. 233, § 20B). With respect to “any court proceeding,” section 20B dictates that “a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition.” M.G.L. c. 233, § 20B.

“The general policy of” section 20B is designed “to protect ‘the justifiable expectations of confidentiality that most individuals seeking psychotherapeutic treatment harbor.'” Dep't of Soc. Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 287 (1987) (citation omitted). That said, the text of section 20B does not “require the communication to be confidential.” Commonwealth v. Waweru, 480 Mass. 173, 183 (2018) (“Unlike many other States that require the communication to be confidential . . ., the Commonwealth has no such requirement in the text of [section 20B]”). As a testimonial privilege, section 20B is “strictly construed.” Walden Behav. Care v. K.I., 471 Mass. 150, 154 (2015) (citations omitted); Matter of M.S., 99 Mass.App.Ct. 247, 254 (2021) (citation omitted). The statute is also limited to “protect[ing] communications.” Matter of M.S., 99 Mass.App.Ct. at 254; see In re Adoption of Saul, 60 Mass.App.Ct. 546, 551 (2004).

Under the privilege, a patient, such as the plaintiff, has “the right to refuse to disclose, and to prevent another witness from disclosing, any communication between the patient and psychotherapist relative to diagnosis or treatment of a patient's mental condition.” Dep't of Soc. Servs. to Dispense with Consent to Adoption, 399 Mass. at 287 (emphasis added); accord Walden Behav. Care v. K.I., 471 Mass. 150, 153 (2015) (privilege in section 20B “exclude[s] from court proceedings . . . statements made by a patient to a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition”); M.G.L. c. 233, § 20B. The treatment records from the plaintiff's two psychotherapists therefore qualify for the privilege “if they contain the communications or notes of communications between the patient and a psychotherapist.” Dep't of Soc. Servs., 399 Mass. at 287 (emphasis added); see also Conklin, 146 F.Supp.3d at 434 n.2; Donovan v. Prussman, No. CIV. A. 99-175D, 2000 WL 1257463, at *2 (Mass. Super. Aug. 28, 2000) (determining that plaintiff's therapist was “psychotherapist” and records were “communications . . . ‘relative to diagnosis or treatment of'” plaintiff's “‘mental or emotional condition'” within meaning of section 20B, thus entitling plaintiff to “qualified privilege to refuse” disclosure under section 20B).

The statute defines a...