Sexual Harassment Plaintiffs’ Assertion of “Garden Variety” Emotional Distress Damages Does Not Authorize Extensive Medical Discovery

In Misas v. N.-Shore Long Island Jewish Health Sys., No. 14-cv-8787, 2016 WL 4082718 (S.D.N.Y. July 25, 2016), the court reaffirmed that an employment discrimination/sexual harassment plaintiff seeking only so-called “garden variety” emotional distress damages does not put their medical condition in issue for discovery purposes.

In this case, plaintiffs assert claims of, inter alia, sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law.

Defendants made a motion to compel plaintiffs to identify all of their healthcare providers and execute related releases.

While plaintiffs “identified and produced authorizations for those healthcare providers whom they had seen for the sole purpose of receiving treatment for the emotional distress injuries alleged in this action,” defendants “argued that they were entitled to information on all of Plaintiffs’ healthcare providers in order to investigate whether other medical conditions or circumstances may have caused (or contributed to) their purported emotional distress.”

Magistrate Judge Freeman denied defendants’ motion, and the court (per District Judge Andrew Carter) upheld that decision as being neither “clearly erroneous nor contrary to law.”

Judge Carter explained:

Under [Federal Rule of Civil Procedure] 26(b), parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case …[]. Thus, though a party does have a privacy interest in her medical records, she waives that privacy interest in any relevant medical records when she puts her physical or mental condition into issue in the litigation. [] The question then becomes at what point a plaintiff has put her physical or mental condition into issue. In this Circuit, courts have held that where a plaintiff seeks damages for ‘garden-variety’ emotional distress, the plaintiff has not put his medical history in issue, nor has he waived his physician-patient privilege. [] “Garden variety” claims are those where:the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or the consequences of the injury. Such claims typically lack extraordinary circumstances and are not supported by any medical corroboration. [] Because of the limited nature of the emotional distress alleged in such cases, it follows that there is no need to examine plaintiff’s full medical history or require a waiver of all physician-patient or psychotherapist-patient confidentiality. [] In such cases, even if medical records may reveal some alternative explanation for the emotional distress allegedly suffered by the claimants, defendants’ contention that any physical malady might cause emotional distress scarcely gives defendants a license to rummage through all aspects of the plaintiff’s life in search of a possible source of stress or distress. [] It is clear, then, that Judge Freeman’s Order was appropriate so long as the Plaintiffs only seek garden variety damages. If Plaintiffs seek only garden variety damages, then they need not provide medical corroboration for any alleged injury, nor can they be said to have put their entire physical and mental condition at issue. Defendants’ argument to the contrary, and in particular their assertion that they have the right to discover any possible alternate sources of emotional distress in Plaintiffs’ lives, highlights the concerns expressed by earlier courts about allowing intrusive discovery of limited relevance in cases of this type. Defendants, in their own words, seek to discover events like sexual assaults, miscarriages, and incidents of sexually transmitted diseases in Plaintiffs’ past—exactly the kind of painful or potentially embarrassing events for which Defendants may not “rummage through” Plaintiffs’ lives. (Emphasis added.)

The court did, however, note that defendants would be permitted to renew their motion to compel if, at a later date, plaintiffs seek more than garden variety emotional distress damages.

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