Estate of Emilie Grace Xiao Ying Olsen v. Fairfield City School District Board of Education

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Estate of Emilie Grace Xiao

Ying Olsen, deceased,

Plaintiff, Case No. 1:15cv787

v. Judge Michael R. Barrett

Fairfield City School District

Board of Education, et al.,

Defendant.

ORDER

This matter is before the Court upon two motions addressing the discoverability of

certain medical records: (1) the Motion to Compel Plaintiffs to Identify Decedent's Medical

Records filed by Defendants Candy Bader, Lincoln Butts, Allison Cline, John/Jane Doe

21, John/Jane Does 11-20, Fairfield City School District (Doc. 135); and (2) the Motion

for Protective Order filed by Plaintiffs, Estate of Emilie Grace Xiao Ying Olsen, deceased,

by and through Marc and Cynthia Olsen, as Co-administrators of the Estate, et al. (Doc.

142).

In the Second Amended Complaint, Plaintiffs claim that the bullying, harassment,

and sexual and racial discrimination suffered by Emilie Olsen at Fairfield Middle School

and Fairfield Intermediate School led to her suicide on December 11, 2014. (Doc. 92).

The current discovery dispute relates to the medical records of Emilie. Counsel for

Plaintiffs has described the procedural background leading up to the filing of these

motions:

On July 28, 2016, the Fairfield school defendants served the first set of

interrogatories request for production of documents on plaintiffs, Mark and

Cindy Olson.

…

The Fairfield School Defendants’ First Set of Interrogatories and Request

for Production of Documents requested all of Emilie’s medical care

providers and medical records including any mental health counseling or

psychiatric or psychological records for her entire lifetime without any

limitation.

…

The medical records produced by plaintiffs, Mark and Cindy Olson, span

half of Emilie’s fifth grade year (2012-2013), all of her sixth-grade year

(2013-2014), and the half of her seventh grade year (2014-2015)

immediately preceding her death on December 11, 2014.

(Doc. 142-1, Peter L. Ney Esq. Aff., filed under seal., paragraphs 2,4, & 6).

Plaintiffs seek a protective order finding that Plaintiffs are only required to produce

Emilie’s medical care providers and medical records for the two years prior to her death

(December 11, 2012 – December 11, 2014). Plaintiffs maintain that any medical records

outside this period of time are not causally related to the allegations contained in the

Second Amended Complaint because their claims are only based upon events during

Emilie’s sixth and seventh grade years. Plaintiffs also maintain that the medical records

are protected by the physician-patient privilege. Defendants seek an order compelling

Plaintiffs to produce these records, arguing that any conditions or health problems which

may have affected Emilie’s emotional state are relevant, and therefore, all of the medical

records should be produced.

In order to determine whether the remaining medical records should be produced,

the Court ordered that the records to be submitted to the Court for an in camera review.

Accord Mann v. Univ. of Cincinnati, 824 F. Supp. 1190, 1201 (S.D. Ohio), aff'd, 152 F.R.D.

119 (S.D. Ohio 1993) (explaining that “materials should be submitted to the Court for in

camera review, where the resisting party's claims of privilege and irrelevance can be

balanced against the opposing party's claims of relevance and need.”).

Federal Rule of Civil Procedure 26(b) permits parties to “obtain discovery

regarding any nonprivileged matter that is relevant to any party's claim or defense and

proportional to the needs of the case.” In federal court, evidentiary privileges are

governed by Rule 501 of the Federal Rules of Evidence. Where a plaintiff alleges federal

and state claims, the Sixth Circuit has held that federal common law controls under Rule

501. Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992).

“It is well-settled that, under the federal common law, there is no physician-patient

privilege.” Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio

2014) (citing Hancock, 958 F.2d at 1374). Because Plaintiffs have brought both federal

and state law claims in this case, the medical records are not covered by a physician-

patient privilege. However, the United States Supreme Court has recognized a

psychotherapist-patient privilege. Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D.

547, 551 (S.D. Ohio 2014) (citing in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135

L.Ed.2d 337 (1996)). Nevertheless, “placing one’s mental health at issue constitutes

waiver of the privilege.” Simon v. Cook, 261 F. App'x 873, 886 (6th Cir. 2008).

Even if the Court were to conclude that the physician-patient or psychotherapist-

patient privilege does not apply, this does not end the Court’s inquiry. The Court must

determine whether the medical records are relevant to Plaintiffs’ claims or Defendants’

defense that there are alternative causes for Emilie’s suicide. Accord White v. Honda of

Am. Mfg., Inc., No. 2:07-CV-216, 2008 WL 5431160, at *2 (S.D. Ohio Dec. 31, 2008).

Upon review of these records, the Court determines that the information it has

reviewed is not causally or temporarily related to the issues raised in the pleadings. The

documents do not include any references to difficulty in school, classmates, or internet

communications. Therefore, the Court determines said records shall remain sealed and

are not subject to disclosure at this time. However, the Court cautions Plaintiffs that this

determination may be revisited at the request of the parties or sua sponte, depending on

the content of deposition testimony, expert reports, or other issues raised in the discovery

process.

Accordingly, Defendants’ Motion to Compel Plaintiffs to Identify Decedent's

Medical Records (Doc. 135) is DENIED; and Plaintiffs’ Motion for Protective Order is

GRANTED (Doc. 142).

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Judge