Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, M.D. Pennsylvania

March 23, 2004.

JOHN DOE, JOHN DOE, SR. and JANE DOE, Plaintiffs

The opinion of the court was delivered by: JOHN E. JONES, District Judge


Pending before this Court is Plaintiff's Motion to Compel Production of Psychological and Psychiatric Records and Evaluations of Defendant Fathers Ensey and Urrutigoity (hereinafter "Defendant Priests" or "Frs. Ensey and Urrutigoity"). We have reviewed the submissions of the parties and taken into consideration the presentations made at oral argument on January 27, 2004. For the reasons set forth below, we will grant Plaintiff's Motion subject to certain strict limitations.


  John Doe and his parents John Sr. and Jane Doe (hereinafter collectively "Plaintiffs"), commenced this action by filing a Complaint on March 20, 2002 against Page 2 the Defendant Priests, the Bishop of Scranton, James C. Timlin, the Diocese of Scranton, the Society of St. John, the Priestly Fraternity of St. Peter, and St. Gregory's Academy (hereinafter collectively "Defendants"), all domiciled in Pennsylvania. The Plaintiffs claim that while John Doe was a minor and student at Saint Gregory's Academy he was sexually molested. Plaintiffs' Complaint alleged the following state law claims: Assault and Battery (Count I); Negligence (Counts II and III); Agency (Count IV); Intentional and Negligent Infliction of Emotional Distress (Counts V and VI); Invasion of Privacy (Count VII); and Breach of Duty (Count VIII). We have jurisdiction pursuant to 28 U.S.C. § 1331, as Plaintiff John Doe, now an adult, resides in North Carolina.

  By Order of December 18, 2002, we referred this case to Magistrate Judge J. Andrew Smyser for pretrial proceedings. On January 13, 2003, Magistrate Judge Smyser issued a Report and Recommendation denying in part Defendants Frs. Ensey's and Urrutigoity's, and the Society of St. John's collective Motion to Dismiss (doc.13). By Order of February 4, 2003, we adopted the Magistrate Judge's Report and Recommendation in toto, dismissing Count VII as outside the statute of limitations and Count VIII as subsumed by other counts.

  On November 3, 2003, Plaintiffs filed the instant Motion to Compel Production of the Psychological and Psychiatric Records and Evaluations of Frs. Urrutigoity and Ensey. Page 3


  Plaintiff John Doe was a student at Saint Gregory's Academy in 1997. St. Gregory's is a boy's school, located on Diocese of Scranton property, and owned and operated by the Fraternity of St. Peter, a pontifical clerical association associated with the Diocese. Frs. Ensey and Urrutigoity are members of the Society of St. John, a diocesan clerical association of the Diocese of Scranton that is housed in the same building as St. Gregory's. Both priests served as chaplains at the Academy. Plaintiffs allege that throughout the 1997-1998 academic year, John Doe was sexually molested repeatedly by Frs. Ensey and Urrutigoity.

  During discovery, the Plaintiffs learned of the existence of certain written psychological or psychiatric reports which resulted from evaluations of the Defendant Priests. Plaintiffs seek to compel the production of these records as containing or leading to the discovery of relevant evidence. Plaintiffs allege that because these evaluations were conducted at the behest of the Diocese of Scranton's Independent Review Board and Bishop James Timlin, and because the Bishop later reviewed the reports, no privilege applies to protect their discovery. In support of these allegations, Plaintiffs provide various correspondence of the Diocese as well as the deposition Page 4 testimony of Bishop Timlin in this matter.*fn1 Page 5

  Defendant Priests assert that all of their psychological/psychiatric records are protected by both the psychiatrist/psychologist-patient privilege and the attorney-client and work-product privileges,*fn2 that the records should remain confidential,*fn3 and that they are not relevant to the claims in this case.*fn4 Counsel for the Defendant Priests claim that their firm was retained by Frs. Urrutigoity and Ensey in response to a criminal investigation conducted by the Scranton District Attorney's Office prior to the initiation of the instant case, and that the psychological evaluations were initially sought at their suggestion in preparation for a potential criminal prosecution.*fn5 In addition, counsel claims that the Defendant Priests at no time signed a consent to release the records to the Diocese, and that no member of the Diocese, including Bishop Timlin, Page 6 ever received any written psychological reports about either Fr. Ensey or Fr. Urrutigoity.*fn6 Counsel admits only that Bishop Timlin received verbal communications about the duration and location of the Defendant Priests' psychological counseling.


  By our Order of December 11, 2003, we directed the Defendant Priests to be prepared to produce the records at issue during the January 27, 2004 hearing, so that we might conduct an in camera review if warranted. We have determined that in order to address the issues raised in the Motion, such review is necessary.*fn7 Two of the subject reports were in the possession of counsel for the Defendant Priests and were provided to us at the hearing.*fn8 However, one of the reports is in the possession of a non-party, The Southdown Institute located in Ontario, Canada, a treatment facility used by the Diocese in such circumstances, and it has not been produced for our inspection.*fn9 All of the subject reports involve consultations by the Defendant Priests Page 8 with psychotherapists. Page 9

  The U.S. Supreme Court has recognized a psychotherapist-patient privilege under the Federal Rules of Evidence. In Jaffe v. Redmond, the Court held 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 Evidence."*fn10 518 U.S. 1, 15 (1996). Thus, for the privilege to attach, the communication must be both confidential and made in the course of diagnosis or treatment.

  Despite their counsel's claim that these evaluations were ordered by them pursuant to pending or threatened criminal or civil litigation, the facts demonstrate that Frs. Ensey and Urrutigoity were asked to see psychotherapists by the Diocese in response to allegations of sexual misconduct.*fn11 This leads us to conclude that the Page 10 communications between the Defendant Priests and their psychotherapists were made in the course of diagnosis. The next question we must resolve is whether those communications were confidential, and if so, whether the confidentiality, and therefore the privilege, was waived.

  While the Court of Appeals for the Third Circuit has not addressed the issue of waiver of the psychotherapist-patient privilege, it has analyzed waiver in the context of the attorney-client privilege. Because the Supreme Court has recognized that the roots of the psychotherapist-patient privilege and the attorney-client privilege are the same,*fn12 we will allow Third Circuit precedent in the area of waiver of attorney-client privilege guide us in our analysis.

  In Westinghouse Electric Corp. v. Republic of the Phillipines, the Third Circuit stated that "[i]t is well-settled that when a client voluntarily discloses privileged communications to a third party, the privilege is waived." 951 F.2d 1414, 1424 (3d Cir. 1991) (citations omitted). The court also stressed that "under traditional waiver doctrine, a voluntary disclosure . . . to a third party waives the attorney-client privilege even if the third party agrees not to disclose the communications to anyone else." Id. at 1427. Whether or not the communications were actually disclosed is irrelevant: "[t]he attorney-client privilege does not apply to communications that are intended to be Page 11 disclosed to third parties or that in fact are so disclosed." U.S. v. Rockwell International, 897 F.2d 1255, 1265 (3d Cir. 1990) (citation omitted).

  Under Pennsylvania law, the psychologist-patient privilege is codified at 42 Pa.C.S.A. § 5944.*fn13 Pennsylvania courts have held that the privilege may be waived by the client, and that this may occur "where the client places confidential information at issue in the case" or "where there is no longer an expectation of privacy regarding the information because the client has made it known to third persons." Rost v. State Bd. of Psychology, 659 A.2d 626, 629 (Pa. Commw. 1995) (citation omitted).*fn14 In discussing the privilege, the Pennsylvania Superior Court has stated both that it is modeled after the attorney-client privilege, and that "codification of the psychotherapist-client privilege is based upon a strong public policy that confidential communications made by a client to the psychotherapist should be protected from disclosure, absent consent or waiver." Commonwealth v. Simmons, 719 A.2d 336, 340 Page 12 (Pa. Super. 1998). In M., M.D. v. State Board of Medicine, a Pennsylvania court held that "[a] court-ordered examination does not invoke the psychiatrist-patient privilege because treatment is not contemplated in conducting the examination." 725 A.2d 1266, 1269 (Pa. Commw. 1999). In the case at bar, the Defendant Priests' employer, Bishop Timlin and the Diocese, ordered the psychological examinations as part of the Diocese standard practice in investigating sexual molestation accusations.*fn15

  Our review of the record indicates that the Defendant Priests did not have an expectation of privacy in their psychological evaluations. These evaluations were conducted at the request of their employer, the Diocese; Bishop Timlin received oral or written reports from the psychotherapists about the priests; and the priests consented to or were at least aware of the fact that the Diocese would receive these reports. Various Diocese correspondence and Bishop Timlin's own deposition testimony clearly support Plaintiffs' contention that any privilege attaching to these communications was waived by either disclosure or intended disclosure to third parties. Page 13

  In a November 2001 letter to a church superior, Bishop Timlin writes that Fr. Urrutigoity was psychologically tested "at my request." (Pl. Mot. to Compel at Ex. D.) The Bishop also indicates that he has received a copy of the evaluation.*fn16 In addition, the minutes of a January 2002 meeting of the clergy's Independent Review Board state that "[t]he Board unanimously recommended that both priests should be sent for a comprehensive evaluation at a facility where our priests have been treated in the past." (Pl. Mot. to Compel at Ex. E.) An internal memo from Fr. Kopacz to Bishop Timlin discusses the arrangements for the Defendant Priests' admission to various psychological counseling facilities in the event that they "consent to evaluation and possible treatment." (Pl. Mot. to Compel at Ex. A.) All of this contradicts Defendant Priests' counsel's assertions that they ordered these evaluations, and thus that the written reports are protected by the attorney-client and work-product privileges.

  The record also includes correspondence between Fr. Urrutigoity and Bishop Timlin, in which Fr. Urrutigoity expresses to the Bishop his reluctance to submit to a psychological evaluation, apprehending that consenting to such is against legal and psychological advice he has received, and noting that he had previously undergone a Page 14 similar evaluation in 2001. Fr. Urrutigoity concludes that "[i]n spite of these reservations, I am willing to undergo the requested evaluation in order to oblige the demand of your independent board and to facilitate your personal position in the current predicament." (Pl. Mot. to Compel at Ex. B) (emphasis added). Bishop Timlin, in response to these concerns, states that "[i]t is [] at my request to comply with that of our Independent Review Board as one more step in the process." Id. (emphasis added).

  Potentially the most damaging evidence in support of the proposition that the privilege was waived is a July 2002 letter to a Vatican cardinal. In it, Bishop Timlin states that his "personal judgment regarding the guilt or innocence of Fr. Urrutigoity and Fr. Ensey is presently suspended. . . . A psychological report about Fr. Ensey, however, indicates problems with pornography and other characteristics which concern me given the allegations against him." (Pl. Mot. to Compel at Ex. F.)*fn17 This correspondence can lead us to no conclusion other than that Bishop Timlin, whether by oral summary, or written report, was made aware of the results of the subject evaluation.

  In addition, in deposition testimony the Bishop admits that he asked Frs. Ensey and Urrutigoity to undergo psychological evaluations. (Pl. Mot. to Compel at Ex. G, pp. Page 15 94-96.) It is evidently the practice of the Diocese to seek such evaluations as an investigative tool in addressing allegations of sexual molestation against its priests. Id. at 96-97, 104. The Bishop states that he received "a report somewhere along the line but never got the actual [March 2002] evaluation[s]" of Frs. Ensey and Urrutigoity. Id. He further states that he thinks "the attorneys for the priests said that they did not want them to come to us," and that he received "some kind of [verbal] report about the thing but it was not a written report." Id. The Bishop later admits he received "some kind of a summary" of the Defendant Priests' psychological evaluations. Id. at 99.

  Finally, the Bishop states that as part of the Diocese's procedure of sending accused priests for evaluations, the priests are asked to sign a release allowing the Bishop to receive the results. Bishop Timilin "presumes" that Frs. Ensey and Urrutigoity signed a release but that he never received the evaluations because the counsel for the Defendant Priests intervened. Id. at 105.

  Our review of the deposition testimony of the Defendant Priests provides further support that the psychotherapist-patient privilege has been waived. Fr. Ensey admits that Bishop Timlin requested the evaluations in early 2002. (Pl. Mot. to Compel at Ex. H, 59.) Fr. Urrutigoity also admits that he was twice evaluated at the request of Bishop Timlin. (Def. Br. Opp. Mot. to Compel at Ex. A, 97-98.) As to the October 2001 evaluation conducted by Bishop Groeschel, Fr. Urrutigoity states that it was his understanding that the results would be relayed to Bishop Timlin. Id. at 98. When Page 16 asked whether Bishop Timlin was informed of the results of the March 2002 evaluation, Fr. Urrutigoity states that his "lawyer decided, at that point, to coordinate all the psychological effort, because it was legal case and so he received the report, not Bishop Timlin [sic]." Id. at 103. There is no question, notwithstanding the Defendant Priests' counsel's protestations to the contrary, that the psychological evaluations were conducted at the request of Bishop Timlin and the Diocese. It is also clear to us that the Defendant Priests expected, at the very least, that Bishop Timlin would receive the results of their evaluations.

  Because the Defendant Priests underwent psychological evaluations knowing that the results would be disclosed the third parties, and possibly even explicitly consented to such disclosure, and further because it is obvious that at least some of the contents of these evaluations were in fact disclosed to third persons, we hold that the reports are not privileged. We therefore will allow discovery of the two evaluations of Fr. Urrutigoity, which we had an opportunity to review in camera, subject to strict limitations.*fn18 These may be used by counsel in this case for deposition and other discovery purposes, with Page 17 the proviso that they remain under seal and are kept strictly confidential. Violation of this confidentiality order will be will result in significant sanctions and contempt penalties.

  Finally, nothing herein is meant to imply or predict the admissibility of any portion or portions of the two subject reports at the trial of this matter. It is axiomatic that discoverability and admissibility at trial are determined by separate analysis. Our determination relates strictly to discoverability, and thus any analysis and final judgment regarding admissibility at the time of trial is necessarily deferred.


  1. Plaintiffs' Motion to Compel (doc. 35) is GRANTED, to the following extent:

  i. Defendant Priests' counsel will produce the following reports and deliver the same to Plaintiffs' counsel in response to Plaintiffs' requested discovery: (1) the October 2001Psychological Report of Fr. Carlos Urrutigoity; (2) the March 2002 Assessment Report of Fr. Carlos Urrutigoity.

  ii. The said reports will be kept strictly confidential and revealed only to the parties to this action and their respective counsel.

  iii. To the extent the contents of the subject reports are referenced in any way in the record proceedings in this case, including during depositions, the resulting document or transcript will be filed under seal. Page 18

  iv. Violation of this confidentiality mandate as set forth herein by any party or their counsel will result in the imposition of appropriate and if necessary severe contempt sanctions by this Court.*fn19

  v. Any ruling on the admissibility of the subject reports at time of trial is hereby deferred.

  vi. A ruling with respect to discoverability of the March 2002 evaluation of Fr. Ensey is likewise deferred until such time as the said report is produced and filed with this Court for in camera inspection.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.