UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Barden Culbreth, Executor of the Estate of William Charles Rowan

v. Civil No. 19-cv-31-JD Opinion No.

Edmond I. Macri, Jr.

O R D E R

Barden Culbreth, as the executor of the estate of William

Charles Rowan, is pursuing a wrongful death action against

Edmond L. Macri, Jr. that arises from a boating accident.

Culbreth moves to compel Macri to provide treatment records from

his psychiatrist.1 Macri objects and asserts that the records

are protected by the psychiatrist-patient privilege and that the

records are not relevant in the absence of an expert witness.

Culbreth contends that Macri has waived the privilege and that

the privileged information is essential.

Standard of Review

“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.” Fed. R. Civ. P.

1 Although Culbreth included a title in the caption of his motion “ORAL ARGUMENT REQUESTED,” he provided no written statement as to why oral argument on this motion would be of assistance to the court. LR 7.1(d). Therefore, that request is denied. 26(b)(1). If a party objects to a discovery request, the

requesting party may move to compel and bears the initial burden

of showing the relevance of the information sought. Fed. R.

Civ. P. 37(a)(3)(B); Aghamehdi v. OSRAM Sylvania, Inc.,

,

, at *1 (D.N.H. Feb. 25, 2019). When a party

objects to discovery based on privilege, that party bears the

burden of showing that the asserted privilege applies to protect

the information sought and has not been waived. See XYZ Corp.

v. United States (In re Keeper of the Records),

, 22

(1st Cir. 2003).

Discussion

Culbreth is seeking Macri’s treatment records that relate

to an allegedly severe condition of stress and anxiety in the

days just before the boating accident in which Rowan was killed.

Through other discovery, Culbreth has learned that Macri

experienced anxiety or a panic attack and was being treated by a

psychiatrist. Culbreth contends that Macri’s mental health and

condition are relevant to his decision and ability to operate

the boat at the time of the accident.

Macri contends that Culbreth has exaggerated the nature of

his anxiety before the accident. He argues that the anxiety he

experienced, which required an increase in the dosage of his

medication, was related to travel and was not a factor in the

2 accident. Macri contends that the psychiatrist-patient

privilege protects his medical records from discovery, that he

has not waived the privilege, and that the records are not

essential or even relevant in the case. Macri further contends

that because Culbreth has not disclosed an expert witness who

could give an opinion about the effect of the medications he was

taking, that information is not relevant. Macri asserts that

Culbreth is engaging in a fishing expedition.

A. Relevance

“Evidence is relevant if: (a) it has any tendency to make a

fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the

action.” Fed. R. Evid. 401. In the amended complaint, Culbreth

alleges that Macri was negligent in operating the boat because

he “fail[ed] to adequately familiarize himself with the boat’s

controls prior to operating it, [he failed] to operate the boat

in a safe and controlled manner, and [he collided] with the

concrete wall.” Am. Compl. ¶ 18. Culbreth represents that one

of his theories of Macri’s liability is that he was not

medically or emotionally fit to operate the boat. Culbreth

intends to use that theory to counter Macri’s defense that

Rowan’s death was a pure accident without any negligence on his

part.

3 In support, Culbreth cites Macri’s son’s statement to

marine patrol officers after the accident that his father had

had a panic attack days before the accident. Culbreth also

cites Sandra Macri’s deposition testimony about Macri’s mental

health but most of the cited pages were not included in the

exhibit that provided excerpts from her deposition. On the

included page, Sandra Macri testified that her husband had had

anxiety when traveling, although not to the extent he

experienced during the trip when the boating accident occurred.

Macri testified during his deposition that he felt a little

uneasy, not relaxed, which was something he had experienced

before due to being away from home. He testified that his anti-

anxiety medication dosage was doubled during the trip and before

the boating accident because he felt uneasy. He also testified

about not wanting to drive the boat during the trip.

Arguably, Macri’s mental health and emotional state prior

to the boat accident are relevant to whether he acted

negligently in deciding to operate the boat. The relevance of

that information, however, would depend on what causal

relationship could be shown between any diagnoses or medication

and the actions that resulted in the accident.2

2 Culbreth also argues that Macri has created a misimpression that his symptoms were mild, mere uneasiness, and that the records would be relevant to rebut that impression. Relevance, however, still requires a causal relationship between the symptoms of the condition or medication and Macri’s actions.

4 As Macri points out, Culbreth lacks an expert witness to

testify about the causal connections between any mental

condition or medication and the accident. The deadline for

expert disclosure has passed. Macri contends that no causal

relationship can be determined based on common knowledge without

the assistance of medical expertise. In response, Culbreth

argues that the information could be within the common knowledge

of the jury and that the other circumstances could justify a

late disclosure of an expert witness.

Assuming that Macri’s treatment records would have some

relevance to Culbreth’s theory of liability, the court moves on

to consider the effect of the asserted psychotherapist-patient

privilege.

B. Psychiatrist-Patient Privilege3

The parties agree that New Hampshire law governs the

privilege asserted in this case. New Hampshire recognizes both

a physician-patient privilege, RSA 329:26, and a mental health

practitioner-patient privilege, RSA 330:A-32, and both are cited

3 Although Culbreth asserts that Macri has waived the marital privilege, it does not appear that a marital privilege has been claimed. To the extent Culbreth intended to argue that Macri waived the psychiatrist-patient privilege by discussing health matters with his wife and then waiving the marital privilege, that theory has not been sufficiently developed to provide support for waiver of the psychiatrist-patient privilege. Under the circumstances presented, Macri’s discussions with his wife about his health or his mental state did not waive the psychiatrist-patient privilege.

5 by Macri in support of his objection. The records at issue are

those generated by Macri’s psychiatrist, Dr. Jacobs.

A psychiatrist is not one of the mental health

practitioners listed in RSA 330-A:2, VII. Instead, a

psychiatrist appears to be included in the practice described in

RSA 329:1 and covered by RSA 329:26. Therefore, it would appear

that the protection provided in RSA 329:26 governs the privilege

asserted in this case. But see Desclos v. S. N.H. Med. Ctr.,

(2006) (applying RSA 330:32 as

“psychotherapist-patient privilege” to plaintiff’s psychiatric

and psychological records). Because both privileges provide

protection on the same basis as the attorney-client privilege

under New Hampshire law, it is not necessary in this case to

distinguish between them.4

4 RSA 329:26 provides: The confidential relations and communications between a physician or surgeon licensed under provisions of this chapter and the patient of such physician or surgeon 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 required to disclose such privileged communications. Confidential relations and communications between a patient and any person working under the supervision of a physician or surgeon that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising physician or surgeon.

RSA 330-A:32 provides: The confidential relations and communications between [a licensed mental health practitioner] and

6 Privileged information may be disclosed if the patient has

waived the privilege or if “the court orders a piercing of the

privilege.” Desclos,

. While the party

asserting the privilege bears the burden of showing that no

waiver has occurred, the party asking the court to pierce the

privilege bears the burden of showing that the privileged

information is essential. Zibolis-Sekella v. Ruehrwein,

,

, at *3 (D.N.H. July 17, 2013).

1. Waiver

The psychiatrist-patient privilege may be waived by the

patient “by putting the confidential communications at issue by

injecting the privileged material into the case.” Id. at 612.

If that has occurred and the privileged information “is actually

required for resolution of the issue, then the privilege-holder

must either waive the privilege as to that information or be

prevented from using the privileged information to establish the

elements of the case.” Id.

Macri contends that he has not injected any issue about his

psychiatric treatment into this case. He states that he does

not dispute that he was taking anxiety medication at the time of

such licensee's client are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order.

7 the accident or that he requested an increased dosage before the

accident. He also does not claim that his anxiety or his

medication had anything to do with the accident. Macri argues

that to the contrary Culbreth is pursuing the privileged

information for purposes of proving liability.

Culbreth asserts that protecting Macri’s medical records

would be unfair as Macri is likely to raise a defense later in

the case that he was not negligent because he sought treatment

for anxiety. He contends that the court “should not permit

Defendant to offensively use the fact that he received

treatment, while concurrently shielding his symptoms and [his

psychiatrist’s] impressions or concerns.”

Because Macri is not now asserting any defense based on his

medical or psychiatric records, he has not injected privileged

matters into this case. He chooses not to waive the privilege

that applies to his confidential records. Therefore, the

privilege protects the information, and he will not be allowed

to use any of the privileged information to establish any

element in the case.

2. Essential

Culbreth contends that the court should nevertheless pierce

the privilege because the information he seeks is essential to

his case. He argues that he needs the psychiatric records to

rebut the defense that Macri did not act negligently. He also

8 argues that the records are necessary to correct the

misimpression Macri has created that his anxiety was not

serious.

As the record demonstrates, Culbreth has ample evidence

about Macri’s anxiety and the treatment he received for that

condition. He has not shown that the privileged information is

essential. Therefore, he has not carried his burden to support

piercing the privilege here.

Conclusion

For the foregoing reasons, the plaintiff’s motion to compel

disclosure of confidential information (document no. 40) is

denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

July 9, 2020

cc: Counsel of record.

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