Ricciardi v. Sylvester CV-94-101-L 04/07/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tina Marie Ricciardi

v. #C-94-101-L

Sylvester Sheet Metal Corp, et al.

ORDER

Before the court are three motions for the court's

consideration. The first is a motion, submitted by plaintiff,

for clarification and to compel answers to an interrogatory.

Doc. 30. The second motion, submitted by defendants, seeks to

compel production of plaintiff's medical records. Docs. 22, 24

and 26. The third motion, submitted by defendant Henry

Sylvester, seeks to exclude plaintiff's expert testimony. Doc.

29.

BACKGROUND

The plaintiff was employed as a welder at the Sylvester

Sheet Metal Corporation from July 11, 1989 until March 6, 1991.

Except for the secretary, the plaintiff was the only female

worker for the corporation. During her time of employment at the

Sylvester Sheet Metal Corporation, plaintiff alleges she was the

victim of sexual harassment. Specifically, plaintiff maintains

the defendants engaged in behavior which created a hostile environment and that during the course of her employment she

received a lower pay raise than the male welders because of her

gender status.

As indicia of her claim for sexual harassment, the plaintiff

alleges that John Jay Sylvester freguently used obscene language

in the presence of the plaintiff and Mike Sylvester freguently

reguested that the plaintiff try on a bikini which he kept in his

desk. The most egregious allegations made by the plaintiff are

against Henry Sylvester. The plaintiff claims Henry Sylvester

made repeated suggestions that he was interested in having a

sexual relationship with the plaintiff, despite her statements to

the contrary. The plaintiff alleges Henry Sylvester's behavior

went so far as to include a trip to her home in the middle of the

night and an incident in which he pursued the plaintiff

throughout the building, cornered her and grabbed her around the

waist only to release her when another employee entered the room.

The plaintiff also maintains that on September 13, 1990 Henry

Sylvester stalked her in his truck, and such action eventually

resulted in police intervention. The plaintiff asserts that she

informed Mike Sylvester of the various incidents involving Henry

Sylvester, but such reporting was of no avail.

On March 6, 1991, Mike Sylvester terminated plaintiff's

employment at the corporation, stating the amount of work

2 performed by her had decreased and was less than adequate. The

plaintiff filed suit against defendants on March 4, 1994,

claiming violations of the Civil Rights Act of 1964, the Equal

Pay Act, the Fair Labor Standards Act as well as pendent state

law claims. There are five defendants named in this action:

Sylvester Sheet Metal Corporation; Mike Sylvester, President and

shareholder of Sylvester Sheet Metal Corporation; Glenn

Sylvester, John Jay Sylvester and Henry Sylvester all of whom

were shareholders of Sylvester Sheet Metal Corporation and

employees with supervisory responsibility.

I. Motion for clarification and to compel answers (Doc. 30)

In interrogatories, dated May 16, 1994, submitted to Mike,

John Jay, and Glenn Sylvester, plaintiff asked the following:

Do you have any knowledge of Henry (Buzz) Sylvester ever abusing alcohol (for example, drinking during working hours or drinking inordinate amounts), using controlled substances of any sort, or exhibiting any other irresponsible or inappropriate behavior? If so, provide the following:

a) The exact dates and nature of such behaviors, b) The names, addresses and affiliations of any other persons who might have knowledge of, or witnessed such behaviors, c) The dates, times, locations, nature and content of any conversations that you know of, or took part in, at all relevant to such behaviors, and the names, addresses, and affiliations of any person (s) who either witnessed or took part in such conversations.

3 In response to plaintiff's interrogatory, defendants

objected to the question and claimed the interrogatory was not

likely to lead to the discovery of admissible evidence and would

result in invasion of privacy rights. Subsequent to defendants'

failure to respond to the interrogatory, plaintiff filed a motion

to compel.

By order dated November 14, 1994 this court addressed

certain discovery matters raised by plaintiff, including the

particular interrogatory now at issue. In addressing the

interrogatory requesting information pertaining to Henry

Sylvester's use of alcohol and controlled substances, this court

held that

[p]laintiff's complaint and motion to compel both specifically and factually allege knowledge on the part of the three defendants of Henry Sylvester's alcohol use and the effect his use had on the workplace environment.

Doc. 2 0.

Plaintiff now moves for a motion for clarification of the

November 14, 1994 order. Specifically, plaintiff maintains

defendants have reworded the interrogatory to exclude any

reference to use of controlled substances by Henry Sylvester.

Plaintiff seeks to compel defendants to provide information

relating not only to Henry Sylvester's alcohol use, but also

concerning any use of controlled drugs by him.

4 Within the November 14, 1994 order, this court alluded to

the fact that plaintiff's pleadings are barren of any indications

of controlled substance use by defendants Mike, John Jay and

Glenn Sylvester. Likewise, although plaintiff did specifically

allege facts pertaining to Henry Sylvester's use of alcohol,

there were no allegations or references pertaining to Henry

Sylvester's use of controlled substances. This being the case,

it was and continues to be the intendment of this court to limit

fishing expeditions during the discovery process. Most notably,

an interrogating party "ought not to be permitted to use

broadswords where scalpels will suffice, nor to undertake wholly

exploratory operations in the vague hope the something helpful

will turn up." Mack v. Great Atlantic and Pacific Tea Co.,

(1st Cir. 1989). Discovery will be allowed into

matters which are reasonably averred within pleadings, but will

not be allowed in instances where the information reguested is

based on nothing more than generalities, suppositions or

premonitions. See Le Barron v. Haverhill Cooperative School

Dist.,

(D.N.H. 1989).

Therefore, as there are no indications or allegations within

plaintiff's pleadings that Henry Sylvester used controlled

substances or that such use may have contributed to plaintiff's

sexual harassment or wrongful termination, plaintiff's reguest to

5 compel defendants to provide answers to the interrogatory in

question is denied. Allowing such broad discovery into matters

which were not sufficiently alluded to within pleadings would

have a potential effect akin to letting a sideshow take over a

circus.

Plaintiff's motion for clarification and to compel answer to

interrogatory (Doc. 30) is denied.

II. Motion to compel medical records (Docs. 22, 24 and 26)

Defendants propounded interrogatories, dated October 7,

1994, to plaintiff requesting information and documentation

concerning plaintiff's emotional distress and medical history.

Specifically, defendants requested the name and address of health

care providers seen by the plaintiff previous to and following

the alleged sexual harassment. The interrogatories also

requested plaintiff to complete medical authorizations for each

provider identified.

Plaintiff objected to defendants' requests, maintaining the

interrogatories are overly broad and not reasonably calculated to

lead to the discovery of admissible evidence.

Defendants now contend that as a result of plaintiff putting

both her physical and mental health at issue, the medical records

requested are within the realm of permissible discovery.

6 The underlying purpose of the "modern discovery doctrine" is

to allow parties to obtain "the fullest possible knowledge of the

issues and facts before trial." Le Barron,

(citing 8 C. Wright & A. Miller, Federal Practice and Procedure:

Civil § 2001 at 13) . Fed. R. Civ. P. 26(b) (1) was added to

tailor discovery to the issues involved in the particular case

and prevent over discovery. See Mack,

(citing

Fed. R. Civ. P. 26 advisory committee's notes (1983 amendments)).

A "court should develop the parameters of . . . discovery . . .

by carefully weighing the interests involved, balancing the

importance of [any] privilege asserted against the defending

party's need for the information to construct its most effective

defense." Greater Newburyport Clamshell Alliance v. Public

Service C o .,

(1st Cir. 1988). In weighing all

interests involved, a court must consider therelevance of the

reguested information and whether the information will aid in the

defense of the case.

Against the aforementioned backdrop. New Hampshire law

recognizes the importance of a physician-patient privilege.

Specifically, RSA 329:26 provides, in pertinent part, that:

The confidential relations and communications between a physician or surgeon . . . and his patient are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be reguired to disclose such privileged communications.

7

(1994).

Although RSA 329:26 provides substantial protection to

patient communications, the physician-patient privilege is "not

absolute and must yield when disclosure of the information

concerned is considered essential." State v. Kupchun,

(1977); Opinion of Justices,

(1977)

("Even a statutory privilege is not fixed and unbending and must

yield to countervailing considerations . . . . " ) As support for

the theory concerning waiver of the privilege, the NewHampshire

Supreme Court has noted that "[t]he legislature certainly did not

intend to prevent just resolution of such claims by giving the

plaintiff the right to deprive the defendant of relevant

information." Nelson v. Lewis,

(1987).

Turning attention to the case at hand, within her complaint

plaintiff specifically alleges the following:

As a result of the actions of all Defendants, the Plaintiff suffered loss of employment, wages and benefits, damage to her career and reputation, emotional and physical harm, pain and suffering . . . .

Doc. 1. Emphasis added.

Further, the counts contained within the complaint make repeated

mention of mental pain and suffering experienced by the plaintiff

and these allegations irrefragably gave rise to plaintiff's

prayer for relief for compensatory, enhanced, or punitive damages

8 in the amount of $450,000.00.

Given these facts, it is clear to the court that plaintiff

has directly alleged that her emotional and physical well-being

were adversely affected by defendants' actions. Thus, plaintiff

will not be permitted to avoid defendants' discovery reguests

pertaining to her mental and physical well-being by asserting a

physician-patient privilege. Fundamental to this conclusion, the

court accepts the reasoning enunciated in Lowe v. Philadelphia

Newspapers, Inc.,

(E.D.Pa. 1983).

As long as plaintiff seeks either or both compensatory and punitive damages by reason of physical, mental or emotional harm or distress, defendant is entitled to inguire during discovery of witnesses, including physicians and psychiatrists as to plaintiff's past history whether or not directly related to her job or job performance.

.

Other courts have taken a substantially similar approach to

that in Lowe. Specifically, "courts and commentators alike have

consistently taken the view that when a party places his or her

physical or mental condition in issue, the privacy right is

waived." Ferrell v. Glen-Gery Brick, 678 F. Supp. Ill, 112-13

(E.D.Pa. 1987); see, e.g. Caesar v. Mountanos,

(9th

Cir. 1976), cert, denied,

,

,

(1977) (California Evidence Code § 1016 providing for psycho-

therapist-patient privilege is waived under the "patient- litigation" exception); Evenly v. United Parcel Services, Inc.,

No. 89 C 1712,

, at *2 (N.D. 111. Feb.

4, 1991) ("Plaintiff has placed her mental condition in

controversy by specifically alleging in her sexual discrimination

complaint a count on an intentional infliction of emotional

distress.")

To recapitulate, this court is extremely cognizant that a

plaintiff, wishing to receive the benefits of the judicial

system, should not be permitted to impose substantial burdens on

the process by withholding information central to or reflective

of her claim. In light of the fact that plaintiff has placed

directly at issue her mental, emotional or physical health by

alleging causes of action involving sexual harassment,

intentional infliction of emotional distress, negligence and

assault, defendants will be permitted, subject to one caveat, to

conduct discovery pertaining to plaintiff's medical history. The

one caveat is that defendants may only reguest information and

documentation regarding plaintiff's medical history back to and

including the year 1985.

III. Motion to exclude expert testimony (Doc. 29)

Pursuant to Fed. R. Civ. P. 37(b), defendant Henry Sylvester

moves to exclude the plaintiff's expert's, Ms. Patricia Isopo,

10 testimony for failure to comply with the Court's Pretrial order

regarding expert disclosure. Defendant maintains the plaintiff's

failure to comply with the Pretrial order has significantly

prejudiced him by denying information including, without

limitation, Ms. Isopo's curriculum vitae, treatment records, a

complete statement of all applicable opinions, and the grounds

therefore. Defendant maintains that today, six months after the

deadline, the plaintiff still has not provided adeguate

disclosure.

Plaintiff counters defendant's motion by maintaining that

she did comply with the scheduling order, in good faith, and to

the best of her ability.

Without delving into the arguments proffered by the parties,

the court notes that discovery in the case is not scheduled to

close until May 15, 1995. Thus, with approximately six weeks

left to conduct discovery, defendant cannot reasonably maintain

he has been prejudiced. After all, there is ample time remaining

for the plaintiff to comply, if she has not done so already, and

for the defendant to acguire the reguested information. At this

juncture, the court will not infer or speculate as to whether

either party has fully cooperated or acted in good faith during

discovery. Within the next six weeks, defendant is entitled to

obtain discovery regarding Ms. Isopo's curriculum vitae.

11 treatment records, and various opinions. If, after close of the

discovery deadline, defendant still has not received requested

information, defendant shall again have the option of filing a

motion to exclude plaintiff's expert testimony. Until such time

as discovery is closed, the court will be hesitant to involve

itself in issues more appropriately resolved by the parties.

Absent such court intervention, counsel are encouraged and

expected to exercise reasonable restraint in discovery matters

and to engage in good faith communications with each other to

settle discovery disputes through cooperation and agreement.

Counsel also have an obligation to tailor interrogatories to suit

the particular exigencies of the litigation.

Accordingly, defendant's motion to exclude plaintiff's

expert testimony (Doc. 29) is denied.

CONCLUSION

Subject to the aforementioned discussion, plaintiff's motion

(Doc. 30) to compel information pertaining to Henry Sylvester's

use of controlled substances is denied.

Further, based on the relationship between the discovery

sought by defendants and the allegations set forth in plaintiff's

complaint, the defendants' motion (Docs. 22, 24 and 26) to compel

information pertaining to plaintiff's medical history is granted

12 subject to the stated caveat.

In relation to defendant's motion (Doc. 29) to exclude

plaintiff's expert, the request is denied.

Finally, as to the request for attorney's fees associated

with defendants' motion to compel (Doc. 22), the request is

denied. Plaintiff's hesitation in providinq information

reflectinq her medical history was with reasonable justification.

April 7, 1995

Martin F. Louqhlin Senior Judqe

Bryn N. Pasternak, Esq. Andrea K. Johnsone, Esq. Jill K. Blackmer, Esq.

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