United States District Court, M.D. Pennsylvania
March 23, 2004.
JOHN DOE, JOHN DOE, SR. and JANE DOE, Plaintiffs
FATHER ERIC ENSEY, ET AL., Defendants
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER
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
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.
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
testimony of Bishop Timlin in this matter.*fn1
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,
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
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
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
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
(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
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
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.
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
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
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,
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.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Plaintiffs' Motion to Compel (doc. 35) is GRANTED, to the following
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
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
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