Tavares v. Lawrence & Mem'l Hosp.

LORI TAVARES, Plaintiff, v. LAWRENCE & MEMORIAL HOSPITAL, Defendant.

3: 11 - CV - 770 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Date: September 20, 2012

RULING ON MOTION TO QUASH SUBPOENA DUCES TECUM

HAIGHT, Senior District Judge:

I. INTRODUCTION

Plaintiff Lori Tavares ("plaintiff") brings the present action for wrongful termination of her employment as a nurse by defendant Lawrence & Memorial Hospital ("L&M" or "defendant") in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Specifically, plaintiff sets forth two counts in her Complaint: (1) violation of the FMLA, in terminating plaintiff during her approved three-month leave from employment to care for her husband during his recuperation from spinal fusion surgery; and (2) "negligent infringement of emotional distress," by wrongfully terminating plaintiff and thereby "caus[ing] Plaintiff [to suffer] severe emotional distress, anxiety, sleeplessness and depression."¹ Doc. #1, ¶ 42. Plaintiff further alleges thatdefendant "should have realized that [such] distress, if it were caused, might result in illness and bodily harm."² Id., ¶ 41.

In describing her alleged wrongful termination, plaintiff states that she was terminated in response to a vacation she took with her husband to Cancun, Mexico on April 14 - 21, 2010, "following [her husband's] doctor's recommendation that a warmer climate would promote healing after surgery." Id., ¶ 25. Plaintiff asserts that as early as December of 2009, she informed her direct supervisor, Karen Stone, of her vacation plans to travel to Mexico from April 10 - 17, 2010. Id., ¶¶ 10-11. Plaintiff alleges that in response to Stone's initial denial of approval because "staffing was poor for the [original] dates requested," plaintiff moved the dates of her planned trip by four days (to April 14 - 21, 2010) to accommodate the needs of her employer's nursing unit. Id., ¶¶ 10-13. Plaintiff ultimately chose April 14 - 21, 2010, for the trip because on those dates "[p]laintiff would already be off duty." Id., ¶ 12. Due to her husband's accidental injury at work and resulting spinal fusion surgery on February 5, 2010, plaintiff's vacation week ultimately fell during her FMLA leave period of February 1, 2010, to May 1, 2010. Id., ¶¶ 15, 19-21. Plaintiff elected to go through with the April trip to Mexico because her husband's physician deemed the trip beneficial to her husband's recovery.³ Id., ¶ 25. On April 27, 2010 - four days before plaintiff's FMLA leave was scheduledto expire - she was terminated for the stated reason of "taking a vacation under the guise of FMLA after being denied vacation time." Id., ¶ 16.

II. JURISDICTION

Plaintiff invokes the subject matter jurisdiction of the Court pursuant to 28 U.S.C. § 1331, "federal claim" jurisdiction, with respect to her FMLA claim.⁴ Doc. #1, ¶ 3. She also "requests this Court to invoke its supplemental jurisdiction pursuant to 28 U.S.C. § 1367 with respect to all causes of action based on Connecticut common law that arise from the same facts as the federal claim" - i.e., her "negligent infringement of emotional distress claim" at Count Two.⁵ Id. In requesting the Court to invoke supplemental jurisdiction, plaintiff essentially concedes that her federal FMLA claim and state negligent infliction of emotional distress claim are "so related" that they "form part of thesame case or controversy." 28 U.S.C.§ 1367(a). See also Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989) (district court has "jurisdiction to hear claims under state law whenever (1) there is a claim arising under the constitution or federal laws; (2) the relationship between the federal claim and the state claim permits the conclusion that the entire action comprises but one constitutional case; (3) the federal claim has substance sufficient to confer subject matter jurisdiction on the court; and (4) the state and federal claims derive from a common nucleus of operative fact") (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)) .

III. PENDING MOTION

Pending before the Court is the motion to quash of non-party marital and family therapist Nina Rossomando, Ph. D., who seeks to quash a subpoena duces tecum dated May 10, 2012, and served by defendant on May 22, 2012. Doc. #26, #26-1. That subpoena commanded Rossomando to appear at a deposition to be held at her office in Waterford, Connecticut, and to produce "[a]ny and all records, notes and other documents, including any documents maintained or created electronically, relating to the treatment of Lori Tavares and Joseph Tavares since January 2005." Doc. #26-1. Dr. Rossomando moves this Court to quash the subpoena on the grounds that, absent an express waiver from both Lori and Joseph Tavares, Connecticut General Statute § 52-146p bars her from disclosing communications with and between patients during the course of marital or family counseling. See Conn. Gen. Stat. § 52-146p(b) ("all [marital therapy] communications shall be privileged and a marital and family therapist shall not disclose any such communications unless the person or his authorized representative consents to waive the privilege and allow such disclosure").

In contrast, defendant L&M urges the Court to apply federal common in this federal action with respect to potentially privileged psychotherapist/patient communications. L&M points out that plaintiff expressly consented to Dr. Rossomando's production of the marital therapy records at issue by "sign[ing] an authorization to release medical information in response to L&M's [applicable] discovery request." Doc. #34, p. 4. Moreover, L&M asserts that plaintiff also "placed her treatment with Dr. Rossomando . . . in issue in this litigation by virtue of the allegations she has made in her complaint, her discovery responses and the evidence she voluntarily disclosed (with her husband's consent) in the prior arbitration and in connection with her complaint to the Connecticut Department of Labor." Doc. #34, p. 4. Consequently, defendant asserts that plaintiff has both expressly and impliedly waived the federal common law psychotherapist-patient privilege with respect to the marital therapy records at issue.⁶ Id., p. 9-10.

With respect to Mr. Tavares, defendant concedes that he "is not a party to this litigation" and has signed no medical authorization. Doc. #34, p. 4. Defendant has thus presented the Court with a proposed protective order to ensure appropriate confidentiality of the Tavares's marital therapy records. Doc. #34-1, p. 2-4.

For the reasons set forth below, the Court holds that it must apply federal common law to the asserted privilege as to psychotherapist/patient communications and plaintiff has expressly and impliedly waived that privilege as to the marital therapy records at issue. Plaintiff's husband, however, as a non-party who executed no waiver, will, along with his wife and to the extent feasible, be afforded limited protection with respect to the records sought via entry of a protective order.

IV. DISCUSSION

A. Standards of Law

1. Relevance

In general, parties may obtain discovery regarding any non-privileged matter that is relevant to the subject matter involved in the pending litigation. Fed. R. Civ. P. 26(b)(1).⁷ The information sought "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.

For purposes of discovery, "relevance" has been defined broadly to include "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The party who resists discovery bears the burden of showing why a discovery request should be denied. Jacobs v. Connecticut Comty. Technical Colls., 258 F.R.D. 192, 195 (D.Conn. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)); EDO Corp. v. Newark Ins. Co., 145 F.R.D. 18, 24 (D.Conn. 1992).

2. Subpoenas

With respect to subpoenas of witnesses and documents, a party may "command each personto whom [the particular subpoena] is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises." Fed. R. Civ. P. 45 (a)(1)(A)(iii). A party who seeks to quash such a subpoena may then, "[o]n timely motion," request the Court to quash or modify the subpoena as specified under Federal Rule 45 (c)(3). One such recognized ground for quashing is when the subpoena "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Id. (c)(3)(A)(iii).

3. Privilege and Waiver at Federal Common Law

Federal Rule of Evidence 501 dictates that, in general, "privilege" is interpreted pursuant to federal common law except that "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." See Fed. R. Evid. 501.⁸ At federal common law, one recognized privilege is the privilege which exists between a licensedpsychotherapist and his or her patient in the course of diagnosing or treating said patient. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996) ("psychotherapist-patient privilege is rooted in the imperative need for [the patient's] confidence and trust" in privacy and thus patient's "confidential communications made to licensed psychiatrists and psychologists" are rightfully protected from disclosure under Fed. R. Evid. 501).⁹

In holding confidential communications between a licensed psychotherapist and patient in the course of diagnosis or treatment as protected from compelled disclosure under Rule 501, the United States Supreme Court in Jaffee v. Redmond specifically rejected any "balancing component of the privilege," observing that "[m]aking the promise of...