In the Matter of the Complaint of SDS Lumber Co as owner or owner pro hac vice and operator of the tug DAUBY ON 641327 for Limitation of Liability, No. 3:2020cv05767 - Document 69 (W.D. Wash. 2021)
Court Description: ORDER granting Petitioner's 49 Motion to Compel. Having found that the discovery at issue is relevant and proportional to the needs of the case and that Claimants have waived whatever privileges they have, the Court ORDERS Claimants to co mply with the discovery requests as stated in this order. Nevertheless, finding good cause, the Court GRANTS Claimants' request for a protective order limiting the use of any medical-or mental health-related information or records to this proceeding. Signed by Judge Marsha J. Pechman.(PM)
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In the Matter of the Complaint of SDS Lumber Co as owner or own...641327 for Limitation of Liability Doc. 69 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 S.D.S. LUMBER CO., Petitioner, 11 12 13 14 15 16 17 18 19 20 21 22 23 CASE NO. C20-5767 MJP ORDER GRANTING MOTION TO COMPEL v. KEVIN GREGORY ET AL., Claimants. The matter before the Court is Petitioner’s motion to compel. Having considered the motion and all related papers, (Dkt. Nos. 43, 49, 50, 56, 57, 58), the Court GRANTS the motion to the extent set forth in this Order. Claimants are ORDERED to answer, without objection, Petitioner’s Interrogatories 2 and 3 and to produce all responsive documentation to Petitioner’s Requests for Production 21 and 22 within 10 days of this Order. (See Dkt. No. 43, Declaration of Matthew C. Crane (“Crane Decl.”), Exs. 1 & 2.) The period subject to discovery is five years before the collision at issue in this proceeding to now. The Court also GRANTS Claimants’ request for a protective order and ORDERS that the use of all medical- and mental health-related records and information is limited to this proceeding. 24 ORDER GRANTING MOTION TO COMPEL - 1 Dockets.Justia.com 1 BACKGROUND 2 SDS Lumber Co. commenced this action under the Limitation of Liability Act (“the 3 Act”), 46 U.S.C. §§ 30501–30512, and Supplemental Admiralty and Maritime Claims Rule F, to 4 limit any liability for damages caused by a collision between its tugboat and a recreational boat 5 owned and occupied by Claimants Kevin and Jacob Gregory. (Dkt. No. 1.) Additional 6 background is contained in the Court’s previous orders. (See Dkt. Nos. 29, 60.) Claimants seek compensatory and punitive damages for physical pain and suffering and 7 8 emotional distress caused by the collision. (Dkt. No. 57, Declaration of James P. Jacobsen 9 (“Jacobsen Decl.”), Exs. A & B.) Claimants state they are limiting their claims to “garden 10 variety” emotional distress and seek no compensation for physical injury, medical treatment, lost 11 wages, or lost earning capacity. Id. Nevertheless, they have previously demanded Petitioner pay 12 $2.9 million to settle their claims. (Crane Decl. at 1.) Petitioner moves to compel Claimants to 13 produce medical, psychological, and pharmaceutical information and documents from before and 14 after the incident. (Dkt. No. 49.) Specifically, Petitioner seeks answers to two interrogatories 15 and two requests for production. (See Crane Decl., Exs. 1 & 2; see also Jacobsen Decl., Exs. A 16 & B.) 17 Petitioner argues such discovery is relevant to determining the cause of any physical pain 18 or emotional distress Claimants experienced and that Claimants have waived whatever privileges 19 apply by putting their physical and mental condition at issue. (Dkt. Nos. 49, 58.) Claimants 20 oppose on several grounds. (Dkt. Nos. 56, 57.) They argue Petitioner’s counsel did not meet 21 and confer. They also argue that the discovery sought is not relevant because (a) they intend to 22 pursue their claims in state court, not this proceeding, and (b) they do not seek damages for 23 physical injury or diagnosable mental-health conditions and will not rely on any such records to 24 ORDER GRANTING MOTION TO COMPEL - 2 1 prove their claims. They also argue that the discovery is protected by federal or Washington 2 privileges. In the event discovery is granted, they seek a protective order to limit the use of such 3 records and information to this proceeding. Petitioner does not oppose such a protective order. 4 (Dkt. No. 58.) 5 6 DISCUSSION A. Meet and Confer The Parties have an obligation to meet and confer in good faith to resolve discovery 7 8 disputes before moving to compel. Fed. R. Civ. P. 37(a)(1). It is undisputed that there were two 9 phone calls between counsel concerning the discovery at issue. (Dkt. No. 50, Declaration of 10 Meliha Jusupovic; Dkt. No. 56 at 2.) Nevertheless, Claimants argue Petitioner did not meet their 11 Rule 37 obligations because the Parties exchanged a proposed stipulation that Claimants contend 12 would have made this motion unnecessary. (Dkt. No. 56 at 2–3; Jacobsen Decl., Ex. C.) 13 However, Claimants rejected material terms of Petitioner’s proposal, which would have limited 14 Claimants’ claims and the evidence relied on to prove them but, in any case, would not have 15 addressed Petitioner’s discovery requests. (See Jacobsen Decl., Ex. C.) Claimants have 16 maintained their position denying discovery and have not proposed any way to close the gap 17 between the two sides. (See id., Exs. A & B.) Petitioner has met its obligations under Rule 37. 18 B. Relevance 19 A party “may obtain discovery regarding any nonprivileged matter that is relevant to any 20 party’s claim or defense and proportional to the needs of the case,” among other considerations. 21 Fed. R. Civ. P. 26(b)(1). Petitioner argues the discovery sought is relevant because Claimants 22 have put their physical and mental health at issue and that they need the discovery to assess 23 whether the injuries alleged were caused by the collision, or are due to other causes, as well as 24 ORDER GRANTING MOTION TO COMPEL - 3 1 the value of the claims. (Dkt. No. 49 at 5.) Claimants argue the discovery at issue is not 2 relevant, for two reasons. 3 Claimants first argue that this proceeding will not determine their claims, because they 4 have the right to pursue their claims in state court. (Dkt. No. 56.) Federal courts have exclusive 5 jurisdiction over cases in admiralty or maritime jurisdiction. 28 U.S.C. § 1333(1). That includes 6 determining whether a vessel owner is entitled to limitation of liability. 46 U.S.C. §§ 30501– 7 30512. Claimants do have the right to pursue “all other remedies to which they are otherwise 8 entitled.” 28 U.S.C. § 1333(1). However, that right is subject to Petitioner’s right to seek 9 limitation in federal court. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 453 (2001). 10 Once a vessel owner has filed a petition and complied with the procedural requirements of the 11 Act, “all claims and proceedings against the owner related to the matter in question shall cease.” 12 46 U.S.C. § 30507. Under the Act, if a court finds liability but grants limitation, it will apportion 13 losses among claimants. 46 U.S.C. § 30507. None of the exceptions to this procedure have 14 arisen at this stage. See Lewis, 531 U.S. at 454. The Gregorys’ claims are part of this 15 proceeding and subject to discovery. Second, Claimants argue that the discovery is not relevant because they seek only 16 17 damages for “garden variety” emotional distress and not for physical injury or diagnosable 18 mental illness. (Dkt. No. 56 at 3.) Damages totaling $2.9 million are not “garden variety.” See, 19 e.g., Lore v. City of Syracuse, 670 F.3d 127, 177–80 (2d Cir. 2012) (upholding award of 20 $150,000). 21 C. 22 23 Privilege While most of the briefing by the Parties on privilege is on federal law, Claimants also argue Washington law should govern because they intend to proceed on their claims in state 24 ORDER GRANTING MOTION TO COMPEL - 4 1 court. Whatever the merits of this argument, e.g., Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 2 323, 325 (N.D. Cal. 1985), the result is the same either way: they have waived whatever 3 privileges apply. 4 Washington protects psychotherapist-patient and physician-patient communications from 5 compelled disclosure. Wash. Rev. Code § 5.60.060(4) (physicians); Wash. Rev. Code 6 § 18.83.110 (psychologists). However, “[n]inety days after filing an action for personal injuries 7 or wrongful death, the claimant shall be deemed to waive the physician-patient privilege.” Wash. 8 Rev. Code § 5.60.060(4)(b). Claimants seek damages for “physical pain and suffering,” so they 9 have waived the privilege. (Jacobsen Decl., Exs. A & B.) Washington courts have applied this 10 statute to find the psychologist-patient privilege similarly waived in the context of emotional 11 distress claims. Lodis v. Corbis Holdings, Inc., 172 Wash.App. 835, 855 (2013). 12 Federal law protects confidential communications between a licensed psychotherapist 13 and patient during the course of diagnosis and treatment. Jaffee v. Redmond, 518 U.S. 1, 15 14 (1996). As an initial matter, even assuming there is no waiver, the privilege does not apply to 15 some of the records and information sought. It applies only to communications that occurred “in 16 the course of diagnosis or treatment.” Id. at 15. Therefore, it does even apply to parts of 17 Petitioner’s demands. (See Crane Decl., Exs. 1 & 2). 18 Where the psychotherapist-patient privilege does apply, it is waived when a plaintiff puts 19 their “emotional condition at issue.” Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 20 1994). The Ninth Circuit has not specified exactly what constitutes placing one’s emotional 21 condition “at issue,” so district courts have taken different approaches with respect to waiver 22 when it comes to “garden variety” emotional distress. E.g., EEOC v. Cheesecake Factory, Inc., 23 C16-1942-JLR, 2017 WL 3887460, at *4 (W.D. Wash. 2017). However, the Court need not 24 ORDER GRANTING MOTION TO COMPEL - 5 1 discuss these approaches in detail, as it is clear that, by seeking damages of $2.9 million, 2 Claimants are not alleging “garden variety” emotional distress. See Lore v. City of Syracuse, 3 670 F.3d 127, 177–80 (2d Cir. 2012). Therefore, they have put their emotional condition “at 4 issue” in this proceeding and have waived the privilege. 5 There is no physician-patient privilege under federal law. The Ninth Circuit has 6 recognized a constitutional right to the privacy of medical information in certain contexts. 7 Seaton v. Mayberg, 610 F.3d 530, 536–37 (9th Cir. 2010); United States v. Chase, 340 F.3d 978, 8 985 (9th Cir. 2003). The Ninth Circuit has not set out clear rules for waiver in the context of the 9 discovery at issue here. Even assuming it would apply, other district courts have held the right is 10 waived when a plaintiff puts their physical health “at issue.” See EEOC v. Cheesecake Factory, 11 Inc., C16-1942-JLR, 2017 WL 3887460, at *7 (W.D. Wash. 2017) (collecting cases). Claimants 12 have put their physical condition “at issue” because they seek damages for “physical pain and 13 suffering.” (Jacobsen Decl., Exs. A & B.) Therefore, they have waived the privilege. 14 Having found that the discovery at issue is relevant and proportional to the needs of the 15 case and that Claimants have waived whatever privileges they have, the Court ORDERS 16 Claimants to comply with the discovery requests as stated above. Nevertheless, finding good 17 cause, the Court GRANTS Claimants’ request for a protective order limiting the use of any 18 medical- or mental health-related information or records to this proceeding. 19 The clerk is ordered to provide copies of this order to all counsel. 20 Dated July 12, 2021. A 21 22 Marsha J. Pechman United States Senior District Judge 23 24 ORDER GRANTING MOTION TO COMPEL - 6
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