Opposition Brief — Voskuil v. Environmental Health Center-Dallas

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No. 00-1044 |__OFRICE OF THE CLERx

NENG Ni On eetinetlieentieee eee

IN THE

Supreme Court of the United States

CARYN VOSKUILL,

Petitioner,

v.

ENVIRONMENTAL HEALTH CENTER - DALLAS,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

Untrep STATES Court OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

STEPHEN A. COKE

WESNER COKE & CLYMER, P.C.

Attorneys for Respondent

One Galleria Tower, Suite 2020

13355 Noel Road

Dallas, Texas 75240

(972) 770-2600

164763 @) Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

~ Respondent Environmental Health Center-Dallas, Inc.

(“EHC”) has no parent corporation and no publicly held

company owns ten percent (10%) or more of the stock of

EHC.

it

TABLE OF CONTENTS

Corporate Disclosure Statement Pursuant To

Supreme Court Role 29.6 0.6... ee cc ive ics ves

Thble of Comeels |. So eee ee

Table of Citet AmiOrs ; cs. k oe Wes Bh ae

Seateunent of the (eet ono i ies ar ee

A. Voskuil Is Not Asserting Merely A “Garden

Variety” Claim of Discrimination .........

1. Wookonil’s PRSUIIIIIR. Ak 55 ec kis KR

2. Evidence Obtained During Discovery of

Documents Concerning Voskuil’s

Montel Com. ios. 5 os WER ES.

3. Voskuil’s Pleadings And Discovery

Responses Placed Mental Condition at

EK Ee See eee roe

4. Voskuil Introduced Medical Evidence As

a Sword In Administrative and Legal

Hearings While Asserting Psycho-

— therapist Privilege As a Shidd. ......

B. This Is Not a Case In Which Vostuil Simply

Stood In Contempt To Preserve the

Psychotherapist Privilege. ...............

Page

iii

Contents

Reasons for Denying the Writ ................. 12

I. The Courts Below Correctly Applied the

Correct Analysis on Waiver of the

/ Psychotherapist/Patient Privilege (Question

PORNO INDE) ies Sees es 12

II. The Courts Below Did Not Abuse Their

Discretion (Question Presented No.2) .... 15

Ill. The Courts Below Correctly Held That

Voskuil Was Not Legally Justified In —

Resisting Discovery And Seeking Appellate

Review (Question Presented No. 3) ....... 17

IV. Other Considerations Justifying Denial of the

SI a6 os Sid eS 6 SR Sue ese ss 19

A. Certiorari Should Be Denied Since There

—Is No Conflict Among The Circuit Courts

cls ss a ey a ane yi <*> 19

B. The Alleged Conflict Between The

Circuits Results From a Single

Massachusetts District Court ........ 20

C. The Alleged Narrower View Identified

In Vanderbilt Has Been Discredited ... 22

D. Supreme Court Consideration of This

Evolving, Unsettled Area is Premature

lv

Contents

1. The Jaffee Case Was Decided Only

Five Veue@Ago............

2. Only a Single Circuit Court of

Appeals, the Fighth Circuit, Has

Even Reached the Question

Presented by Petitioner. ......___

3. Even the Decisions of the Courts

Below Were Unpublished and/or

Failed to Fully Elaborate and

Develop Their Analysis of the

Psychotherapist/Patient Privilege.

4. This Court Should Wisely Allow

These Issues to Percolate In the

Lower Courts And Be Resolved by

Additional Courts of Appeal Before

Granting Certiorari. .........

Voskuil Failed to Properly Raise, Perfect

and Preserve Her Claim of an Inability

to Pay the Monetary Sanctions ....___

- / Certiorari Should Be Denied Because

This Case Is Properly Decided on More

Narrow Grounds Than the Psycho-

therapist WO oe ia

Page

22

22

23

23

24

26

Contents

Page

G Certiorari Should be Denied Since this

Case Presents No Compelling National

2 ea et Pe fee ree 26

H. Voskuil’s Petition for Writ of Certiorari

Should be Denied Because it Turns

Solely Upon an Analysis of the Particular

and Unique Facts Involved .......... 27

emu Tt Pre ae ee 28

vi

TABLE OF CITED AUTHORITIES

Cases:

Arizonans For Official English v. Arizona, 520 U.S.

43, 127 &. Ce. 2G Ce e565 rk hh ea wey

Baker v. Ace Advertisers Service, 153 F.R.D 38

UL! OPP PEP eee ie es cere ee eee

Castillo v. Frank, 70 F.3d 382 (Sth Cir. 1995) ....

Delta Airlines v. August, 450 U.S. 346, 101 S. Ct.

LISG CIGEL) oii cv oicuncct¥eckswerseneereute

Dick v. New York Life Ins. Co., 359 U.S. 437, 79

oR ies. Prt rr ee

Doolittle v. Ruffo, 1997 WL 151799 (N.D. N.Y.) ..

E.I. du Pont de Nemours & Co. v. Train, 430 U.S.

112, 135, 97 FS Ce Pee are vc xkiweaiweie.

F-D.1.C v. Connor, 20 F.3d 1376 (Sth Cir. 1994) ...

FDIC v. LeGrand, 43 F.3d 163-€Sth Cir. 1995) ....

Fritsch v. City of Chula Vista, 187 F.R.D. 614 (S.D.

Cal. 1999), opinion modified by, 196 F.R.D. 562

tee Se DBA Hea ore

Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951

CRDGTE 5 5 cigiwsc0cc¥e 4d ben acess

Page

vii

Cited Authorities

Page

Goodman v. Lukens Steel Company, 482 U.S. 656,

OF RACE FEED: kate cbuewecéantenvess 27

Huber v. Marine Midland Bank, 51 F.3d 5 (2d Cir. |

SGN cxtans awa tieecced eb scoters 24, 25

Jackson v. Chubb Corporation, 193 F.R.D. 216

CD. Pert ee Sab eek bias cee asthe eleva 21

Jaffe v. Redmond, 116 S. Ct. 1923, 135 L. Ed. 2d

ripe ich Ro | BP ole 12, 13, 19, 20, 22

Kerman v. City of New York, 1997 WL 666261

BS eS PER Sen penta g arpa be 13

Landscape Properties, Inc. v. Whisenhunt, 127 F.3d

I PED od ohare is asease sucess 25

Lanning v. Southeastern Penn. Transp. Auth., 1997

2S gs 8k 8 ee ee err 13, 14

McCray v. New York, 461 U.S. 961, 103 S. Ct. 2438

t- _. SEPaS epee: Oe ig aE Ors eee 23

NHL v. Metropolitan Hockey Club, Inc., 96 S. Ct.

a ee iis a ko untk oa bee den 16, 18

Patrick v. Burget, 486 U.S. 94, 99, 108 S. Ct. 1658

i: RS rn 25

vill

Cited Authorities

Page

Prince v. Poulos, 876 F.2d 30 (Sth Cir. 1989) ..... 16

Rice v. Sioux City Memorial Park Cemetery, Inc.,

349 U.S. 70, 75 S. Ct. 614 (1955) ............ 26, 27

RTC v. Sands, 151 F.R.D. 616 (N.D. Tex. 1993)... 16

Sabree v. United Brothers of Carpenters & Joiners

126 F.R.D. 422 (D. Mass. 1989) ............. 14, 15

Sarko v. Penn-Del Directory Co., 170 F.R.D. 127

RO eS ren rar ney Serr 13, 14, 20, 22

Schoffstall v. Henderson, 223 F.3d 818 (8th Cir. |

EET re en eer Me rey poe 20, 22

Silva v. Witschen, 19 F.3d 725 (1st Cir. 1994) .... -~ 25

Smith v. Legg, 24 F.3d 650 (Sth Cir. 1994) ....... 25

Texas v. Mead, 465 U.S. 1041, 104 S. Ct. 1318

COORD a 6 aed Rais Wa hs i ed Sewn ow wm 27

United States v. Mendoza, 464 U.S. 154, 104 S. Ct.

FOO PE sie nnd BARR ened ees 23, 24

Vanderbilt. v. City of Chilmark, 174 F.R.D. 225

ie rere rer ere 20, 21,.22

Vann v. Lone Star Steakhouse and Saloon of

Springfield, Inc., 967 F. Supp. 346 (C.D. Ill.

SORTED es ance an tavicsdawer seen 13, 14, 20, 22

ix

Cited Authorities

Page

Wainwright v. City of New Orleans, 392 U.S. 598,

BOG: CU 2245 (1068) vise hi ee 25

White v. GMC, 908 F.2d 675 (10th Cir. 1990) ..... 24

Wisniewski v. United States, 353 U.S. 901, 77S. Ct. —

GR CIR is eas BE PIGS FS 21

Statute:

SO USL. SCORN 5S EAS 16

Rules:

MRE Ne CC CS eae brs oo ns 1b Kine chee 19

PR PE a9 ie bi ob cb hia ka es coker e ea 18

HE EEE nia bk ann kes <ba noes kckaden ax 16

oe oe ad ea eee bad a eS 16

Fifth Circuit Local Rule 47.5.1 ................ 23

United States Supreme Court Rule 10 ........... 27

United States Supreme Court Rule 10(a)......... 20

~€.

|

STATEMENT OF THE CASE

The facts necessary to address the arguments set forth in

the Petition for writ of certiorari filed by Petitioner Caryn

Voskuil (“Voskuil’”’) are adequately presented in the District

Court and Fifth Circuit opinions which are incorporated

~herein by reference. See Petition, App. 17-24, 28-30, 34-36.

However, the Statement of the Case presented by Voskuil is

rife with misleading, inaccurate and erroneous assertions of

fact and requires correction in the following two specific areas.

First, Voskuil is not merely asserting a “garden-variety” claim

of discrimination as discussed in Section A below. Second, this

is not a case in which Voskuil in good faith simply stood in

contempt in order to preserve her psychotherapist privilege as

discussed in Section B belov

A. Voskuil Is Not Asserting Merely A “Garden Variety”

Claim of Discrimination

Voskuil asserts that she merely alleges a “garden-variety”

claim of discrimination. Petition, p. 10. Voskuil further denies

alleging severe, on-going emotional distress, an independent

claim for emotional distress or placing her medical condition

at issue. Petition, pp. 4, 10. However, Voskuil comes to the

legal conclusion that she suffered depression as a result of being

sexually harassed, abused and discriminated against by her

supervisor. Petition, p. 3. The following facts establish that the

foregoing statements are misleading, inaccurate and erroneous.

1. Voskuil’s Physicians.

a.. 1982 - 1983 Undisclosed Physician. During Voskuil’s

deposition she testified that the first time that she could recall

having depression being a part of her daily life was when

she was at the University of Texas in 1982-1983. R. 995,

2

1005:6-12. Voskuil sought medical treatment and received

prescription drugs for her condition with an undisclosed

physician. R. 1005:13-18. Voskuil decided to leave the

University of Texas and return to Dallas because she got very

depressed, felt really sad and wasn’t happy with the program.

R. 1002:10-1003:4. Voskuil’s definition of this depression

included feelings of hopelessness, unhappiness and that she was

very miserable and things had to change. R. 1003:17-25; 1004:8-

11.

b. November 1992 - Dr. Khatami. The next time Voskuil

recalls being influenced by depression was after Voskuil

returned from St. Louis and began working for Maritz Travel

in 1992. R. 995, 1006:19-25. This second episode of depression

also occurred prior to her commencement of part time work at

EHC. R 1007:1-11. Voskuil sought medical treatment and

received prescription drugs for a diagnosis of clinical depression

from a Dr. Khatami in or about November 1992. R. 1008:23-

1009:8; 1010:11-1011:13; 1018:18-24; Voskuil estimates that

over a period of a couple of months, she saw Dr. Khatami for

between 12-20 appointments. R. 1020:4-11.

c. 1992, 1995 - Present, Dr. Shelley Roatan Voskuil

received medical treatment including prescription drugs for

depression from Dr. Roatan during at least two separate periods.

Voskuil first sought medical treatment from Dr. Roatan at the

time she was receiving treatment from Dr. Khatami. R. 1017:19-

22; 1018:13-17. Voskuil changed medical plans and returned

to Dr. Roatan in 1995 to the present date. R. 1017:19-1018:17;

1021:15-16. Dr. Roatan has prescribed drugs in treatment of

her clinical depression. R. 1021:5-9.

2. Evidence Obtained During Discovery of Documents

Concerning Voskuil's Mental Condition.

Discovery has revealed a history of mental disorders which

existed long before her employment at EHC. As discussed

3

above, Voskuil first sought medical treatment for depression

in 1982-1983, ten years prior to her employment at EHC.

Voskuil suffered a second episode of depression prior to her

employment at EHC. Voskuil has admitted in a Patient History

form to her employment application at EHC that prior to her

employment at EHC she suffered from depression, anxiety

and had been under psychiatric care. R. 1571, 1718. In an

Application For Disability Benefits dated March 30, 1995

(the “Application”) produced\by Voskuil during discovery and

introduced into evidence at the Texas Employment Commission

(“TEC”) administrative hearing, Voskuil admitted to a similar

condition as recently as November 1992, four months prior to

her employment at EHC. R. 1571, 1720 Line 11; R. 995, 1034

Line 11. Voskuil also admitted that her illness was not related

to her occupation. R. 1034, Line 7. Her physician lists her

diagnosis as “Major Depression, Recurrent” and admits that

her disability was not caused by Voskuil’s current or prior

employment. R. 1035, Line 2 and 1(d).

From December 28, 1994 through March 27, 1995, Voskuil

was on medical leave pursuant to the Family and Medical Leave

Act (“FMLA”). R. 1663. Correspondence from her psychiatrist

states this medical leave was required due to a “Major

Depressive Disorder” with symptoms including “severe anxiety,

feelings of depression, crying, poor concentration,

discouragement, lack of satisfaction in life, self-criticism,

suicide thoughts, irritability, difficulty in making decisions,

fatigue and loss of appetite.” R. 1571, 1719. Her physician

further stated that “our efforts to find an appropriate anti-

depressant medication have not yet been adequately successful.”

Ibid.

4

3. Voskuil’s Pleadings And Discovery Responses Placed

Mental Condition at Issue.

The Magistrate Judge specifically made findings, reviewed

and affirmed by the District Court and the Fifth Circuit, that

Voskuil’s mental condition has been placed at issue by her

pleadings and discovery responses, including, without

limitation, that: (a) “[aJs a result of the hostile environment,

Plaintiff suffered an extreme episode of depression, and was at

the point of committing suicide” R. Vol. 9, p. 41:21-25 citing

Voskuil’s complaint — R. 435, 439 § 31; (b) Voskuil was

required to receive counsel from a therapist and took a medical

leave from EHC because of the intensity of the depression

(R. Vol. 9, p. 41:25-42:3 citing Voskuil’s complaint — R. 435,

439 § 32-33; (c) “[in] December of 1994, as a result of the

harassment, I became severely depressed and for health reasons

took a leave of absence,” Vol. 9, p. 42:3-42:1 citing Voskuil’s

Interrogatory Answers Nos. 2, 3, 6, 7, 16, 18, 20 -—R. 1646,

1654-1663; (d) in response to an interrogatory concerning “any

severe emotional distress allegedly caused by Defendants’

conduct” Voskuil stated “as a result of the harassment

and hostility I had become severely depressed and was

having suicidal thoughts and had decided that my life was

not worth living if I had to face that type of abuse each day,”

Vol. 9, p. 42:3-42:10 citing Voskuil’s Interrogatory Answers

No. 21 — R. 1646, 1708-1709; (e) Voskuil requested actual

damages as front pay for essentially the rest of her life until the

age of 72 which would be in 2027 (Voskuil’s complaint —

R. 435, 449-450 § 80; and (f) Voskuil claimed entitlement to

exemplary/punitive damages for Defendants’ intentional

conduct” (R. 435, 446-448, 450 §72, 76 and 81).

5

4. Voskuil Introduced Medical Evidence As a Sword In

Administrative and Legal Hearings While Asserting

Psychotherapist Privilege As a Shield.

In addition to waiving the psychotherapist privilege by the

allegations in her pleading, Voskuil waived the privilege

by actually introducing privileged information and evidence

as a sword during: (a) summary judgment proceedings;

(b) at prior administrative hearings before the TEC; and

(c) by citing such evidence in her Appellant’s Brief. Voskuil

admitted she saw both a psychiatrist and a therapist for

depression on or before November, 1992, four months prior to

her employment at EHC. R. 552, 572, para. 136-37. Voskuil

concluded that the causation of her depression in or about

November, 1992 was: (i) a medical illness and related treatment

and pain suffered on a prior job; (ii) the death of her

grandparents; and (iii) her inability to work consistently.

R. 552, 585, para. 131-136, 212. Even after Voskuil recovered

from her medical illness, the depression had not lifted.

R. 572, para. 137. In November 1992, Voskuil’s “therapist

recommended a psychiatrist who would be able to prescribe

medication for my depression.” R. 572, para 137-38. Voskuil

described how the subjects of her counseling sessions shifted

from her depression as a result of her medical condition and

other “pedestrian issues” to “primarily dealing with coping with

my job.” R. 565, para. 89. Voskuil had ongoing psychotherapy

since at least prior to November 1992 (not including the prior

episode in 1982-1983). R. 565, 572, 584-85, para. 89, 137, 138,

205-6, 207. In November 1992, prior to her employment at

EHC, Voskuil was prescribed medication for anxiety and

depression. R. 573 and 585, para. 139, 213.

In December 1994, Voskuil became “severely depressed

and was having suicidal thoughts and had decided that my life

was not worth living.” R. 573, para. 140. Voskuil concluded

- that the causation of this depression was her employment at

6

EHC. /bid. Voskuil wrote in her journal: “I felt it would

be better to die than to continue to live like I was — dead”. . .

“T wanted to buy Final Exit on the way home .. . just ready to

end the waste, the sadness, the loss, the torture, I thought I’d

have enough pills to do it — I wanted to — I meant to.” R. 634.

By December 28, 1994 “I became convinced that death was a

viable alternative to returning to work.” Voskuil concluded

“I was unable to return to work due to the depression.”

R. 573, para. 141.

On January 3, 1995, Voskuil requested leave under the

FMLA “for a period to be determined by my physician.”

R. 633. Voskuil periodically notified EHC of her physician’s

prognosis of her ongoing condition and her anticipated return

to work, including letters and prescription pad memos from

Dr. Statman dated January 3, January 31, February 28, March

29, April 10 and May 26, 1995, which were introduced by

Voskuil as exhibits at the TEC administrative hearings.

R. 995-996, 1028-1033, 1037. On March 21, 1995, Voskuil

advised EHC that “[p]revious conversations with my doctor

have indicated that I will begin by working part time (half days)

and those should be afternoons.” R. 638. Voskuil stated that

her physician had only “released me to four hours of work per

day.” R. 577, para. 163. At the expiration of Voskuil’s statutory

12 week leave under the FMLA, Voskuil concluded, based

apparently upon her physician’s prognosis, that “I could not

immediately return to an eight hour work-day.” R. 578, para.

171. Voskuil concluded, based upon her physicians prognosis,

that “I had not been released to work for more than four hours

per day” and “I could not ... take the position as offered.”

R. 579, para. 175. On April 10, 1995, Voskuil’s physician and

psychiatrist Dr. Statman wrote a letter delivered to EHC

describing her prognosis and stating that Voskuil “has my

permission to return to work 6 hours-_per day as of Wednesday,

April 12, 1995.” R. 649.

7

Voskuil concluded that the causation of her “extreme

anxiety” was the level of harassment at EHC. This extreme

anxiety required increased amounts of prescribed medication

which she was required to continue to take for extended periods.

R. 584-586, para. 205, 214. Presumably at her physician’s

direction, Voskuil “required increased therapy to deal with the

anxiety and harassment issues.” R. 585, para. 206. Voskuil had

an ongoing psychiatric condition since Voskuil stated “I need

to continue therapy, but currently am financially not capable”,

more than 22 months after her resignation at EHC. R. 585, para.

208. Voskuil’s then present need for ongoing therapy had

spanned a period of at least 4 years and 4 months, November

1992 through February 1997 (not including the prior episode of

depression in 1982-1983). At the TEC administrative hearing,

Voskuil introduced the Application, wherein Voskuil admitted

her illness was not related to her occupation, her physician

admitted that her disability was not caused by Voskuil’s current

or prior employment and her physician listed her diagnosis as

“Major Depression, Recurrent.” R. 995-996, 1034-35.

Voskuil used the foregoing evidence concerning the nature,

extent, history and causation of Voskuil’s medical condition as

a sword to establish unusually severe, ongoing mental injury

and psychiatric disorder.

B. This Is Not a Case In Which Voskuil Simply Stood In

Contempt To Preserve the Psychotherapist Privilege.

Voskuil repeatedly claims that she utilized the proper

procedures in good faith to simply stand in contempt in order

to consistently claim and preserve her legally justifiable

psychotherapist privilege through the appellate process.

Petition, 5-6, 14-18.

In fact, Voskuil was sanctioned by the District Court

because she exhibited a pattern of misconduct, made intentional

8

and willful misrepresentations designed to mislead the District

Court, and was deliberately evasive, disobedient and

disrespectful to the Court and opposing counsel as described

below.

After the District Court affirmed the Magistrate Court’s

order compelling production of Voskuil’s psychotherapist

records, Voskuil allowed all applicable time periods

to immediately reconsider or appeal that order expire.

R.Vol. 10, p. 11:12-24; 35:10-17. Voskuil knowingly and

intentionally decided to forego an appeal by mandamus of the

District Court Order signed February 24, 1999 and willfully

and intentionally failed to comply with such order. R. Vol. 10,

p. 8:16-10:18; 15:7-16:8; 16:8-17:6; 77:15-78:1.

The transcript of the hearing of Defendant’s Motion for

Contempt and Sanctions on April 23, 1999 establishes that

Voskuil and her attorney admitted they had disobeyed the

District Court Order signed February 24, 1999. R. Vol. 10,

p. 8:16-10:18; 77:15-78:1. The District Court made repeated

inquiries as to whether Voskuil and her attorney intended to

continue to willfully disobey the Court’s orders in the future

and refuse to produce the requested discovery including:

(i) at least 7 inquiries made directly to Ms. Nadine King-Mays,

the attorney for Voskuil; R. Vol. 10p. 11:12-11:19; 13:19-14:8;

15:8-15:12; 16:8-16:10; 16:15-16:6; 16:20-16:21; 17:1-17:3;

and (ii) at least seven 7 additional inquiries were made directly

to Voskuil. R. Vol. 10, p. 17:7-17:22; 19:21-19:22; 19:25; 20:2-

20:3; 20:6-20:8; 20:10-20:15; 20:20-21:7.

Ms. King-Mays initially unequivocally refused to comply

with the Court’s order. R. Vol. 10, p. 16:8-16:14; 16:15-16:19;

16:20-17:6. Voskuil; agreed with her attorney and also

unequivocally refused to comply with the Court’s order.

R. Vol. 10, p. 17:7-18:13; 19:21-19:24; 19:25-20:1; 20:6-20:9;

20:12-20:17; 21:6-21:10. The District Court repeatedly

9

admonished Voskuil and her attorney for their contempt of Court

and warned Voskuil that her case would likely be dismissed

with prejudice if she failed to comply with the Court’s orders.

R. Vol. 10, p. 13:19-14:9; 15:8-15:12; 20:2-20:5; 36:22-37:16;

42:18-42:23.

The District Court repeatedly explored whether lesser

sanctions, other than dismissal, would be effective and whether

Voskuil would comply with the Court’s orders if restrictions,

in the nature of a confidentiality/protective order, were added

to the Court’s order. R. Vol. 10, p. 24:14-24: 20; 33:25-34:6;

36:22-37:16; 42:18-42:23; 42:25-43:4; 43:23-44:5; 46:22-47:8;

48:4-48:8; 58:7-58:11; 58:16-58:22. Initially, Voskuil gave

evasive, incomplete answers 2s to whether she would comply

if a confidentiality/protective order were added to the District

Court’s order. R. Vol. 10, p. 24:21-25:16; 34:6-34:8; 37:17-

38:13; 43:5-43:22; 44:4-44:5; 47:2-47:9; 48:9-48:17.

The District Court informed Voskuil and her attorney that

although the Court had determined that dismissal with prejudice

of Voskuil’s lawsuit was entirely appropriate, the Court would

take a brief recess to allow Voskuil and her attorney one last

opportunity to mitigate their contempt by agreeing to comply

with the Court’s orders. R. Vol. 10, p. 42:14-48.3. After the

recess, Voskuil clearly and unequivocally agreed to obey the

District Court’s orders and produce the requested documents

and information if the Court added the restrictions in the nature

of a confidentiality/protective order outlined by the Court.

R. Vol. 10, p. 48:3-48:8;58:7-58:15; 58:16-59:2; 75:15-75:19.

The District Court found that Voskuil was at fault for failing

to timely raise or argue that a confidentiality/protective order

should be added to the Court’s order. R. Vol. 10, p. 49:5-57:19;

60:10-61:24. Voskuil had never previously offered to settle the

controversy by proposing a confidentiality/protective order as

a compromise. Voskuil had previously unequivocally refused

to produce the documents and information. R. Vol. 10, p. 65:17-

71:24.

10

The District Court outlined Voskuil’s prior misconduct

which included evidence that: (i) Voskuil had repeatedly failed

to comply with the Court’s orders; (ii) Voskuil’s attorney had

previously been sanctioned by the Magistrate Court for filing a

frivolous motion; and (iii) Voskuil had been dilatory in filing

pleadings on 10-12 occasions. R. Vol. 10, p. 41:14-42:12; 82:10-

82:17. The District Court characterized Voskuil’s conduct as

deliberately evasive, disobedient and disrespectful toward the

court and opposing counsel. R. Vol. 10, p. 34:20-34:25; 37:6-

37:16; 67:6-67:8; 67:11-68:3; 68:13-68:23; 70:1-70:6; 73:15-

73:18; 77:19-77:22; 82:10-82:17; 86:15-87:22.

On June 14, 1999, the District Court granted EHC’s Motion

for Contempt and Sanctions, held Voskuil and her attorney in

contempt of court and again ordered Voskuil to answer and

produce the requested discovery. R. 1377, 1382-83. The District

Court found:

(a) Plaintiff's counsel stated on the record that she

did not plan to comply with the court’s orders

requiring production.

(b) Voskuil confirmed that she had not complied

with the Court’s Order and “did not adequately

justify her failure to do so, and presented no other

relevant defense for her failure to comply.”

(c) “Although there is a clear record of

contumacious conduct on the part of Plaintiff and

her counsel, and dismissal of this action with

prejudice is justified, the court will not impose such

a draconian remedy” since “lesser sanction will

obtain compliance.”

(d) “Plaintiff and her counsel have agreed to

produce the documents as long as disclosure of the

documents is reasonably limited.”

11

(e) Voskuil was at fault for failing to timely raise

or argue that a confidentiality/protective order

should be added to the Court’s order since the issue

was first raised by the Court. R. 1378-80.

The District Court ordered as follows: \.

Plaintiff and her counsel shall produce the

documents in question and otherwise comply with

the orders previously entered by the United States

Magistrate Judge and this court by June 22, 1999,

and Plaintiff and her counsel shall pay the monetary

sanction to Defendant by July 11, 1999. If Plaintiff

fails to comply with the court’s order regarding

either of those dates, Plaintiff's claims will be

dismissed with prejudice. R. 1383.

The District Court further held that the assertion of a

psychotherapist privilege by Voskuil’s physician as opposed

to Voskuil herself, which was filed 2 1/2 years after the deadline

to object to EHC’s discovery requests, was filed “far too late

and is therefore waived.” R. 1379.

Despite the repeated promises made by Voskuil and her

attorney during the hearing on April 23, 1999, both failed to

comply with the District Court’s June 22, 1999 deadline to

produce the relevant documents and answer the subject

interrogatories and the July 11, 1999 deadline to pay the

monetary sanctions ordered by the Court. Petition, p. 7. Due to

the failure of Voskuil and her attorney to produce the requested

discovery and pay the monetary sanctions imposed by the Court,

EHC filed Defendant’s Motion to Enforce Contempt Sanctions

and Brief on June 28, 1999. R. 1399. On July 1, 1999, Judge

Lindsay signed an Order of Dismissal and Judgment dismissing

Voskuil’s lawsuit with prejudice. R. 1410.

12

REASONS FOR DENYING THE WRIT

I. The Courts Below Correctly Applied the Correct

Analysis on Waiver of the Psychotherapist/Patient

Privilege (Question Presented No. 1)

Voskuil has waived the psychotherapist privilege

recognized by this Court in Jaffee and its progeny by placing

her mental condition at issue in her pleadings, discovery

responses and the introduction of evidence as both a sword and

shield during judicial and administrative proceedings. This is

not a “garden variety” Title VII claim for emotional damages.

Voskuil has admitted to a preexisting mental condition,

diagnosed as “Major Depression, Recurrent” which spanned

over 15 years, including in 1982-1983 and then again at least

four months prior to her employment at EHC. Voskuil is not

alleging (and the evidence does not show) the expected mental

injuries customarily associated with sexual harassment claims,

but rather, concerns extreme episodes of depression, thoughts

of suicide and an inability to work for the rest of her life.

EHC was entitled to discover the nature, extent, history and

causation of Voskuil’s alleged disability and damages.

In Jaffe v. Redmond, 116 S. Ct. 1923, 135 L. Ed. 2d 337

(U.S. Ill. 1996), the Supreme Court recognized for the first time

a psychotherapist-patient privilege in certain situations.

Jaffe, as cited by the Magistrate Court, concludes “[w]e hold

that confidential communications between a licensed

psychotherapist and her patients in the course of diagnosis or

treatment are protected from compelled disclosure under Rule

501 of the Federal Rules of Civil Evidence.” Jaffe at 1931, cited

at Vol. 9, p. 39:17-23. The Magistrate Court clearly-ruled in

EHC’s favor based not upon the existence or non-existence of

the psychotherapist privilege, but rather based upon a finding

of a waiver of the privilege, assuming it exists. Vol. 9, p 40:4-

8. Jaffe recognized that the psychotherapist privilege, like any

13

other privilege, may be waived. Jaffe, at 1931 n.14.

Unfortunately, Jaffe offered little guidance on the situations in

which a patient may waive the psychotherapist privilege since

it determined that it was neither necessary nor feasible to

delineate the full contours of the newly recognized privilege.

Post-Jaffe caselaw, and the Magistrate Court, in findings

reviewed and affirmed by the District Court and the Fifth Circuit,

have expressly held that the psychotherapist privilege may be

waived when a patient places his medical condition at issue.

See R. Vol. 9, p. 40:4-44:22 wherein the Magistrate Court relies

upon five post-Jaffe cases, including Lanning v. Southeastern

Penn. Transp. Auth., 1997 WL 597905 (E.D. Penn.); Sarko v.

Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Penn.

1997); Kerman v. City of New York, 1997 WL 666261

(S.D. N.Y.); Doolittle v. Ruffo, 1997 WL 151799 (N.D. N.Y.);

and Vann v. Lone Star Steakhouse and Saloon of Springfield,

Inc., 967 F. Supp. 346, 350 (C.D. Ill. 1997). These post-Jaffe

cases were the genesis of the broader view of waiver identified

in Voskuil’s First Question Presented. As discussed in

paragraphs IV.A-C below, this broader view of waiver, rather

than the more narrow view of waiver proposed by Voskuil, has

been accepted by almost all of the courts which have considered

the issue.

The most often cited case interpreting Jaffe and the broad

view of waiver is Sarko, which identifies the following 4

methods of placing mental condition at issue:

(1) pleading a tort claim for emotional distress;

(2) alleging a severe ongoing mental injury or

psychiatric disorder,

(3) offering expert testimony to support the claim;

or

14

(4) when the plaintiff concedes his mentai condition

is in controversy (emphasis added).

Sarko, 170 F.R.D. 127, 130. Sarko emphasized that the plaintiff's

allegations “that her depression has had a long term impact on

her mental state” met the second category of cases in which a

party places her mental condition in controversy.

Sarko at 131. “[A]llowing a plaintiff to hide . . . behind a claim

of privilege when that condition is placed directly at issue in a

case would be simply contrary to the most basic sense of fairness

and justice.” Vann at 350 citing Sarko as persuasive.

In Lanning, the court considered similar categories of

cases in which a plaintiff puts her mental condition at issue.

The plaintiffs: (1) stipulated that plaintiffs would not seek

damages for psychiatric/psychological injury; (2) stipulated that

they would not offer expert testimony in support of their claim

for emotional distress; (3) did not seek recovery for treatment

of emotional distress; and (4) did not allege an independent

tort-like action. Nevertheless, the court, citing Sarko, held that

plaintiff can still attempt to establish plaintiff's emotional

distress claim through plaintiff's own testimony so that the

defendant “has a right to inquire into Plaintiff's pasts for the

purpose of showing that their emotional distress was caused at

least in part by events and circumstances that were not job

related.” Lanning at *2. The Magistrate Court adopted this

finding and the District Court and Fifth Circuit reviewed and

affirmed. R.Vol. 9, p. 44:7-12.

Voskuil, in addition to proposing a narrower view of waiver

of the psychotherapist privilege, also attempts to differentiate

her case by characterizing her claim as a mere “garden-variety”

Title VII action. Petition, p. 9-10 citing Sabree v. United

Brothers of Carpenters & Joiners 126 F.R.D. 422 (D. Mass.

1989). Clearly, Voskuil’s assertion that she has removed all

claims based upon emotional distress, psychic injury or

15

psychiatric disorder or severe, ongoing emotional distress is

disproved by her own pleadings as detailed in paragraph A of

the Statement of the Case. Voskuil is not alleging (and the

evidence does not show) the expected mental injuries

customarily associated with sexual harassment claims, but

rather, her pleading refers to extreme episodes of depression,

thoughts of suicide and an inability to work for the rest of her

life. The evidence detailed above confirms multiple, pre-existing

mental episodes and diagnosis of recurrent major depression,

which may cause or contribute to Voskuil’s injuries. This is

not the type of “garden variety claim” with the alleged

“emotional damages naturally flowing from that injury.”

Sabree, 126 F.R.D. 422, 426. Even Sabree concedes that there

may be cases where an employee waives the psychotherapist

privilege and places her mental condition at issue. Sabree, 126

F.R.D. 422, 426. EHC does not dispute that the cases are legion

that suggest, as in Sabree that the employer is not entitled to

discovery of medical records in a “garden variety” Title VII

claim. However, the Magistrate Court made findings, reviewed

and affirmed by the District Court and Fifth Circuit, which

distinguish this case from a “garden variety” Title VII case.

R. Vol. 9, p. 38:4-48:20;

II. The Courts Below Did Not Abuse Their Discretion

(Question Presented No. 2)

Voskuil’s Second Question Presented does not present any

new, independent considerations governing Supreme Court

certiorari review other than whether the Courts below abused

their discretion in holding that the federal psychotherapist

privilege, referenced in the First Question Presented, had been

waived.

Voskuil’s statement on p. 13 of her Petition that the

applicable standard of review should have been a de novo

standard of review, rather than an abuse of discretion standard

16

of review, conveniently ignores the fact that this is an appeal of

a case dismissed with prejudice as a result of sanctions imposed

by the District Court. “A district court’s decision to dismiss a

complaint with prejudice as a sanction for violation of a

discovery order may be reversed only if it amounts to an abuse

of discretion.” Prince v. Poulos, 876 F.2d 30, 32 (Sth Cir. 1989)

citing NHL v. Metropolitan Hockey Club, Inc., 96 S. Ct. 2778,

2780-81 (1976). The issue is not whether the reviewing court

would have imposed the same sanctions as did the district court;

the question is whether the district court abused its discretion

in so doing. NHL, 96 S. Ct. 2778, 2780.

The underlying discovery order was an appellate review

by the District Court of Voskuil’s objections to a nondispositive

pretrial discovery order of a U.S. Magistrate Judge pursuant to

F.R.C.P. 72(a) and 28 U.S.C. § 636(b)(1)(A). F.R.C.P. 72(a)

provides that a “district judge to whom the case is assigned

shall consider such objections and shall modify or set aside

any portion of the magistrate judge’s order found to be clearly

erroneous or contrary to law.” (emphasis added). Castillo v.

Frank, 70 F.3d 382, 385 (Sth Cir. 1995). “A factual finding is

not clearly erroneous unless although there is evidence to

support it, the reviewing court is left with the definite and firm

conviction that a mistake has been committed.” RTC v. Sands,

151 F.R.D. 616, 619 (N.D. Tex. 1993). The de novo standard

of review does not appear anywhere in F.R.C.P. 72(a) as Voskuil

incorrectly suggests. Voskuil mistakenly cites the de novo

standard of review which is reserved for dispositive magistrate

rulings under F.R.C.P. 72(b). The District Court itself made a

finding, citing Castillo, that the magistrate’s order was on a

nondispositive pretrial matter, a finding which Voskuil did not

challenge by point of error in either the Fifth Circuit or this

Court. R. 1292. Voskuil is not entitled to review of arguments

and evidence not seasonably raised before the magistrate, the

district court or the Fifth Circuit. Baker v. Ace Advertisers

Service, 153 F.R.D 38, 43 (1992).

17

Even if the proper standard was a de novo review, the

District Court emphatically denied Voskuil’s allegations on page

13 of her Petition that the District Court failed to give serious

consideration or perform a thorough review of the objections,

evidence, record, and other pleadings. R. 1408-1409; 1410 at

1411. The District Court specifically found, and the Fifth Circuit

affirmed, that the District Court considered the “motions,

responses, replies, oral argument of counsel, comments of the

Plaintiff (i.e. testimony) and the applicable law.” R. 1377, 1292;

Vol. 10, p. 2:19-23.

The “review of a district court’s sanction for the violation

of one of its discovery orders also, necessarily involves a review

of the underlying discovery order”. F.D.J.C v. Connor, 20 F.3d

1376, 1381 (Sth Cir. 1994). However, the appellate court

“review of the underlying discovery order is deferential;

[t]he trial court’s exercise of discretion regarding discovery

orders will be sustained absent a finding of abuse of that

discretion to the prejudice of a party.” Ibid.

III. The Courts Below Correctly Held That Voskuil Was

Not Legally Justified In Resisting Discovery And

Seeking Appellate Review (Question Presented No. 3)

The Third Question Presented by Voskuil, again, does not

present any new, independent considerations compelling

Supreme Court certiorari review other than whether Voskuil

was legally justified, based upon the psychotherapist privilege

identified in Voskuil’s First Question Presented, in resisting

discovery and seeking appellate review. As discussed in the

Statement of the Case, para. B. above, this is not a case in which

Voskuil simply stood in contempt of Court to preserve the

psychotherapist privilege.

The District Court correctly held, and the Fifth Circuit

affirmed, that a party seeking to establish a civil contempt need-.

only evidence: (1) that a court order was in effect; (2) that the

18

order required certain conduct by the respondent; and (3) that

the respondent failed to comply with the court’s order.” Petition

App., p. 19-20 citing FDIC v. LeGrand, 43 F.3d 163, 170

(5th Cir. 1995). Voskuil has conceded that this Fifth Circuit

standard was met since Voskuil and her attorney admit that

they disobeyed the District Court Order signed February 24,

1999. R. Vol. 10, p. 8:16-10:18; 77:15-78:1.

F.R.C.P. 37(c) specifically authorizes dismissal as an

appropriate remedy for disobedience of court discovery orders.

Dismissal of Voskuil’s claims was especially appropriate based

upon the Court’s mandatory warning and order that in the event

Voskuil and her attorney failed to pay the monetary sanctions

and comply with the discovery orders, “Plaintiff's claims will

be dismissed with prejudice.” R. 1383. NHL, 96 S. Ct. 2778,

2780.

The District Court found, and the Fifth Circuit affirmed,

that Voskuil and her attorney willfully and intentionally misled

the District Court as to their intentions to comply with the

Court’s orders and no less drastic sanctions would likely result

in compliance. During the hearing on April 23, 1999, both

Voskuil and her attorney were informed that the Court had

determined that “death penalty” sanctions in the nature of a

dismissal of Voskuil’s lawsuit with prejudice were appropriate.

R. 1379-80. However, in an effort to comply with the Court’s

duty to explore whether the deterrent value of the proposed

sanctions could be substantially achieved by less drastic

san ‘tions, the District Court proposed, and Voskuil and her

attorney clearly and unequivocally agreed, that the documents

and information be produced subject to a Court ordered

confidentiality/protective order designed to shield sensitive

documents from unnecessary disclosure. R Vol. 10, p. 48:3-

48:8; 58:7-58:15; 58:16-19:2; 75:15-75:19.

19

The District Court signed its Me:norandum Opinion and

Order which held that “{a]lthough there is a clear record of

contumacious conduct on the part of [Voskuil] and her counsel,

and dismissal of this action with prejudice is justified, the court

will not impose such a draconian remedy” since “a lesser

sanction will obtain compliance.” R 1379-80. Relying on

Voskuil’s promises, the Court outlined the “lesser sanction”

than dismissal which it had decided to impose ie. the production

of the documents and information subject to the proposed

confidentiality/protective order R. 1380-81.

Despite the assurances that Voskuil and her attorney had

made during the hearing, Voskuil subsequently refused to

produce the subject documents and information. Voskuil never

objected to or assigned error to the wording of the proposed

confidentiality/protective order or the Memorandum Opinion

and Order ordering production, nor did Voskuil ever give the

Court any additional explanation for Voskuil’s refusal to abide

by the concessions made in open court. As more fully discussed

in paragraph IV.E. below, Voskuil failed to properly raise,

perfect and preserve her present claims of an inability to pay

the monetary sanctions. Voskuil was offered, but unexplainably

rejected the “less drastic sanction” proposed by the District

Court. Therefore, the deterrent value of F.R.C.P. 37 could not

be achieved by less drastic sanction than dismissal.

IV. Other Considerations Justifying Denial of the Petition

A. Certiorari Should Be Denied Since There Is No Conflict

Among The Circuit Courts of Appeal

Voskuil’s petition for writ of certiorari should be denied

for the reason that there is no conflict among the Circuit Courts

of Appeal on the questions presented. In Voskuil’s First

Question Presented, Voskuil asserts that there is a “conflict

between the circuits regarding what constitutes a waiver of the

psychotherapist/patient privilege under Jaffee v. Redmond.”

20

However, Voskuil fails to cite even a single Court of Appeals

case regarding waiver of the psychotherapist privilege by a

patient placing his or her medical condition at issue. Supreme

Court Rule 10(a), which lists certain considerations governing

the decision to grant review by writ of certiorari, provides that

[rJeview on a writ of certiorari is not a matter of right, but of

judicial discretion” and “will be granted only for compelling

reasons” such as “(a) a United States court of appeals has

entered a decision in conflict with the decision of another

United States court of appeals on the same important matter.”

(emphasis added). Since Voskuil has cited only federal district

court cases, Voskuil can not meet the standard of Supreme Court

Rule 10(a). In fact, research by EHC’s counsel has discovered

only a single Court of Appeals case interpreting the waiver of

the Jaffee psychotherapist privilege by a patient placing his or

her mental condition at issue discussed in paragraph IV.D.2.

below. See Schoffstall v. Henderson, 223 F.3d 818, 822

(8th Cir. 2000).

B. The Alleged Conflict Between The Circuits Results

From a Single Massachusetts District Court

On page 11 of her Petition, Voskuil claims that developing

case law focuses on two divergent views with regard to the

psychotherapist privilege. Voskuil identifies a broader view

(represented by Sarko and Vann cited by the Magistrate Court

below) and a narrower view which Voskuil states is represented

by three cases. Only one of these cases actually adopts the

narrower view recommended by Voskuil. See Vanderbilt v. City

of Chilmark, 174 F.R.D. 225, 229-230 (D. Mass. 1997) —

plaintiff only waives psychotherapist/patient privilege by

introducing evidence (by witness or testimony) regarding the

substance of her conversations with her psychotherapist in order

to further her claim of emotional damage.

21

The second cited opinion, which was issued by a magistrate

court, was subsequently modified by a reviewing California

district court and declines to follow the narrower view identified

in Vanderbilt. Fritsch v. City of Chula Vista, 187 F.R.D. 614

(S.D. Cal. 1999), opinion modified by, 196 F.R.D. 562, 565-

568 (S.D. Cal. 1999). The district court in Fritsch held that the

narrower view in Vanderbilt is unfair because the defendants

should have access to evidence and explore the possibility that

plaintiff's emotional state was caused by other factors in her

life at the time. Fritsch, 196 F.R.D. 562, 569. The district court

in Fritsch “concludes that the Supreme Court would adopt the

broad view of waiver.” Fritsch, 196 F.R.D. 562, 568.

The final opinion cited by Voskuil also, in fact, declines to

follow the Vanderbilt narrower view and instead adopts the

broader view applied by the Magistrate Court below. Jackson

v. Chubb Corporation, 193 F.R.D. 216, 224-225 (D. NJ. 2000)

— “{hjaving closely reviewed cases supporting both the broad

and narrow views on waiver, this Court is convinced that the

broad view of waiver best serves the respective interests of the

parties to a lawsuit.”

The basis of Voskuil’s alleged “conflict among the circuits”

is therefore reduced to a single Massachusetts District Court

case which has been harshly criticized and distinguished as

discussed below. The national impact of denying Voskuil’s

petition for writ of certiorari would be limited to a single

Massachusetts district court, certainly not an intolerable conflict

which requires immediate resolution by this Court. The Courts

of Appeal, not the Supreme Court, have the duty to maintain

uniformity within their respective circuits and to supervise the

decisions of the various district courts therein. Wisniewski v.

United States, 353 U.S. 901, 902, 77 S. Ct. 633, 634 (1957).

22

C. The Alleged Narrower View Identified In Vanderbilt

Has Been Discredited

A Westlaw keycite check reveals that at least five cases

_ have disagreed with the analysis in Vanderbilt and at least three

cases have declined to follow Vanderbilt. Respondent, therefore,

counts at least eight cases in just three years which have

disagreed or declined to follow the single Massachusetts District

Court in Vanderbilt. Therefore, to the extent there is a conflict

among the circuits, which EHC denies, the conflict will likely

be resolved as a result of future cases in the Courts of Appeals.

D. Supreme Court Consideration of This Evolving,

Unsettled Area is Premature

1. TheJaffee Case Was Decided Only Five Years Ago.

This Court only recognized the psychotherapist privilege

five years ago in Jaffee. The Court, at the time, noted that

“it is neither necessary nor feasible to delineate its full contours

in a way that would govern all conceivable future questions in

this area. Jaffee, 518 U.S. 1, 18, 116 S. Ct. 1923, 1932. The

foregoing statement is equally appropriate just five years later.

2. Only a Single Circuit Court of Appeals, the Eighth

Circuit, Has Even Reached the Question Presented

by Petitioner.

The only reported decision by a U.S. Court of Appeals on

the question presented is Schoffstall v. Henderson, 223 F.3d

818, 823 (8th Cir. 2000) which held that the psychotherapist

privilege is waived when a party places her medical condition

at issue. Schoffstall cites the broader view of Sarko and Vann

cited by the Magistrate Court below as persuasive. Schoffstall

also cites, but disagrees with Vanderbilt, the case relied upon

by Voskuil to promote a narrower view of waiver of the

psychotherapist privilege. However, even the Schoffstall case

devotes only a single paragraph to the resolution of this issue.

Therefore, not even the Eighth Circuit has fully delineated the

full contours of the psychotherapist privilege.

23

3. Even the Decisions of the Courts Below Were

Unpublished and/or Failed to Fully Elaborate and

Develop Their Analysis of the Psychotherapist/

Patient Privilege.

Neither the District Court nor the Fifth Circuit decisions

below were designated for official publication. By failing to

meet the criteria for publication pursuant to Rule 47.5.1 of the

Fifth Circuit Local Rules, the Fifth Circuit determined that,

among other things, the case did not: (i) in any way interest

persons other than the parties to the case; (ii) create or resolve

a conflict of authority either within the circuit or between this

circuit and another; and (iii) concern or discuss a factual or

legal issue of significant public interest. The entire Fifth Circuit

opinion is only three pages long and the Fifth Circuit opinion,

since unpublished, did not even attempt to fully elaborate,

discuss and/or develop the legal issues involved in the case. In

fact, the Fifth Circuit opinion does not cite a single case as

precedent. This Court should avoid a premature adjudication

of a question presented, especially when the Court is requested

to review a new or novel question not yet fully addressed by

the appropriate courts below. Arizonans For Official English

v. Arizona, 520 U.S. 43, 78-79, 117 S. Ct. 1055, 1074 (1997).

4. This Court Should Wisely Allow. These Issues to

Percolate In the Lower Courts And Be Resolved

by Additional Courts of Appeal Before Granting

Certiorari.

A petition for writ of certiorari should be denied where the

question requires “further study” in the lower courts “before it

is addressed by this Court.” McCray v. New York, 461 U.S.

961, 963, 103 S. Ct. 2438, 2439 (1983). To grant certiorari

review of the Fifth Circuit decision would deprive this Court of

potentially valuable discussion of these issues by lower courts.

United States v. Mendoza, 464 U.S. 154, 160, 104 S. Ct. 568,

24

572 (1984) — this Court benefits from “permitting several

Courts of Appeal to explore a difficult question before this Court

grants certiorari.” See also E.I. du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 135 n.26, 97 S. Ct. 965, 978 n.26 (1977)

— this case “exemplifies the wisdom of allowing difficult issues

to mature through full consideration by the Courts of Appeal.”

E. Voskuil Failed to Properly Raise, Perfect and Preserve

Her Claim of an Inability to Pay the Monetary Sanctions

Voskuil’s petition for writ of certiorari should be denied

because Voskuil failed to properly raise, perfect and preserve

on appeal the alleged inability of Voskuil and her attorney to

pay the monetary sanctions assessed against them by the District

Court. See, e.g., Silva v. Witschen, 19 F.3d 725, 732-733 n.15

(1st Cir. 1994) “Inability to pay what the court would otherwise

regard as an appropriate sanction should be treated as reasonably

akin to an affirmative defense, with the burden upon the parties

being sanctioned to come forward with evidence of their

financial status.” White v. GMC, 908 F.2d 675, 685 (10th Cir.

1990). If the contemptor offers no evidence as to her inability

to comply or stands mute, she has not met her burden. Huber v.

Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995).

After the contempt hearing, Voskuil was given an additional

opportunity to object to the attorneys’ fees requested by EHC

by affidavit, but again failed to raise Voskuil’s and her attorneys’

alleged inability to pay the monetary sanctions in her objections

to imposition of monetary sanctions filed April 27, 1999.

Similarly, Voskuil failed to challenge the reasonableness of

EHC’s attorneys’ fees during the sanctions phase by offering

expert testimony or other evidence refuting or contradicting

the reasonableness of EHC’s attorneys’ fees. Silva, 19 F.3d 725,

732-733.

25

Finally, on June 21, 1999, almost two months after the

original hearing of the motion for contempt and for sanctions,

Voskuil filed a motion to stay pending Voskuil’s application for

writ of mandamus in which Voskuil briefly concluded that

Voskuil and her attorney did not have funds sufficient to pay

the monetary sanctions. R. 1390. However, Voskuil presented

no evidence to the District Court of the financial condition of

Voskuil and her attorney or of their inability to pay the monetary

sanctions. Silva, 19 F.3d 725, 732-733 n.15. Conclusory

statements by Voskuil in a single, unverified pleading are

inadequate to carry her burden. Huber, 51 F.3d 5, 10. There is

no evidence in the record which indicates or even suggests

that either Voskuil or her attorney were unable to pay the

monetary sanctions. Landscape Properties, Inc. v. Whisenhunt,

127 F.3d 678, 685 (8th Cir. 1997).

Subsequently, Voskuil failed to assign a point of error in

her appeal to the Fifth Circuit asserting their alleged inability

to pay the monetary sanctions. A question presented in a petition

for writ of certiorari but not raised in the court of appeals is not

properly before this court. Delta Airlines v. August, 450 U.S.

346, 362, 101 S. Ct. 1146 (1981). Similarly, this Court should

decline to consider questions presented in a petition for writ of

certiorari that have not been addressed or considered by the

lower courts. Patrick v. Burget, 486 U.S. 94, 99, 108 S. Ct.

1658, 1662 n.5 (1988). It would be improvident to grant

Voskuil’s petition for writ of certiorari since the evidentiary

appellate record is undeveloped and insufficient to resolve the

factual dispute concerning their alleged inability to pay. Smith

v. Legg, 24 F.3d 650, 655 (Sth Cir. 1994). See Wainwright v.

City of New Orleans, 392 U.S. 598, 599, 88 S. Ct. 2243, 2245

(1968) — record described as “too sketchy” for consideration

by writ of certiorari.

26

F. Certiorari Should Be Denied Because This Case Is

Properly Decided on More Narrow Grounds Than the

Psychotherapist Privilege

It is instructive that the Fifth Circuit did not even reach or

discuss the question of the waiver of psychotherapist privilege

below. Rather, the Fifth Circuit decided the case on more narrow

grounds. The Fifth Circuit simply determined that the District

Court did not abuse its discretion since: (i) Voskuil, herself,

agreed to release the medical records; (11) Voskuil had been

wamed that continued failure to produce the records would result

in dismissal with prejudice; (iii) Voskuil twice intentionally

disregarded the district court’s orders; (iv) Voskuil

misrepresented her future course of conduct to the district court;

and (v) Voskuil was originally granted a lesser punishment than

dismissal with prejudice but failed to comply with the district

court’s orders. Voskuil’s petition for writ of certiorari should

be denied since the Supreme Court is likely to decide the case

on the narrower grounds used by the Fifth Circuit Court, rather

than on the questions presented.

G. Certiorari Should be Denied Since this Case Presents

No Compelling National Question

Voskuil’s petition for writ of certiorari should be denied

because the case presents questions of importance merely to

the litigants and not an issue of immediate public significance,

especially since: (i) Voskuil has failed to establish a conflict

among the circuit Courts of Appeal; and (ii) the Fifth Circuit

decided this case on narrow grounds not implicating the

psychotherapist privilege. Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70, 79, 75 S. Ct. 614, 619-620 (1955).

A writ of certiorari should be sparingly exercised with necessary

restraint and caution based upon the considerations such as listed

in Supreme Court Rule 10. Dick v. New York Life Ins. Co., 359

U.S. 437, 448-449, 79 S. Ct. 921, 928 (1959). Supreme Court

27

Rule 10 specifically requires that “‘a petition for writ of certiorari

will be granted only for compelling reasons.” This Court has

recognized that

it is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public, as distinguished from that

of the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority

between the Circuit Courts of Appeals.

Rice, 349 U.S. 70, 79, 75 S. Ct. 614, 619-620.

H. Voskuil’s Petition for Writ of Certiorari Should be

Denied Because it Turns Solely Upon an Analysis of the

Particular and Unique Facts Involved

This case has already been decided adversely to Voskuil by

three separate courts including the Magistrate Court, the District

Court and the Fifth Circuit. As discussed above, Voskuil’s

petition relies upon many facts which are: (i) denied or in dispute

by EHC; and (ii) in conflict with the fact findings by the

Magistrate Court, which were affirmed by both the District Court

and the Fifth Circuit. Supreme Court Rule 10 provides “{a]

petition for a writ of certiorari is rarely granted when the asserted

error consists of erroneous factual findings or the misapplication

of a properly stated rule of law.” “[ A] Court of law, such as this

Court is, rather than a court for correction of errors in fact

finding, cannot undertake to review concurrent findings of fact

by two courts below in the absence of a very obvious and

exceptional show of error.” Goodman v. Lukens Steel Company,

482 U.S. 656, 665, 107 S. Ct. 2617, 2623 (1987). The Supreme

Court should not grant a petition for writ of certiorari to review

evidence and discuss specific facts. Texas v. Mead, 465 U.S.

1041, 104 S. Ct. 1318, 1320 (1984). Certiorari should only be

28

granted when the record reveals that the facts appear with

sufficient clarity to enable this Court to decide the question

presented. Gilbert v. California, 388 U.S. 263, 269, 87 S. Ct.

1951, 1954 (1967).

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

STEPHEN A. COKE

WESNER COKE & CLYMER, P.C.

Attorneys for Respondent

One Galleria Tower, Suite 2020

13355 Noel Road

Dallas, Texas 75240

(972) 770-2600