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Swanger v. Warrior Run School District

United States District Court, M.D. Pennsylvania

June 3, 2014

ELAINE AND VICTOR SWANGER, as parents and legal guardians of B.J.S., and B.J.S. Plaintiffs,


ROBERT D. MARIANI, District Judge.


Presently before the Court is a Motion for In Camera Review and for Reconsideration (Doc. 111) filed by Plaintiffs, Elaine and Victor Swanger. The Motion asks the Court to reconsider its Order of March 17, 2014, in which the Court stated that "the documents listed [in the Philadelphia Diversified Treatment Claim File Privilege Log] appear beyond serious question to be generated in connection with Mattison's treatment so as to be appropriately deemed privileged." (Court Opinion and Order, Doc. 109). For the reasons discussed below, the Court will deny the Motion for Reconsideration.


Plaintiffs filed a Complaint (Doc. 1) in this matter on May 11. 2011, an Amended Complaint on August 30, 2011 (Doc. 34). and a Second Amended Complaint on March 8, 2013 (Doc. 77). Defendants each filed a response to the Second Amended Complaint (Docs. 78, 85, 106). Notably, Defendant Duane Mattison filed his response on March 6, 2014 (Doc. 106). On January 30, 2014, prior to Mattison's Answer, Plaintiffs filed a Motion to Compel (Doc. 96) documents contained in the Philadelphia Diversified Treatment Claim File Privilege Log (Doc. 96-1). On March 17, 2014, the Court held a conference call with counsel for the plaintiffs and counsel for the defendants, Warrior Run School District, Duane Mattison, and Diversified Treatment Alternatives, Inc. ("DTA"), specifically regarding a deposition dispute as to a DTA employee. At issue was the extent to which Plaintiffs' counsel could depose the witness as to information contained in an "erroneously" produced document by Mattison's counsel, entitled Diversified Treatment Alternatives Psychological Evaluation, dated October 25, 2010 (Doc. 96-2), as well as whether Mattison had waived his psychologist/psychiatrist-patient privilege during his June 1, 2012, deposition. The Court found that Mattison's argument that the Psychological Evaluation was erroneously supplied in disclosure amounted to an admission of a failure to assert the psychologist/psychiatrist-patient privilege as to this document and that Mattison's deposition testimony addressed most, if not all, of the historical information found in the evaluation at issue. Therefore "in the interests of justice and the proper application of the psychologist/psychiatrist-patient privilege", we identified specific areas of the report whose disclosure was not waived by Mattison, while allowing Plaintiffs' counsel to rely on other parts of the report. (See generally Doc. 109). However, while considering the Order to be dispositive of Plaintiffs' Motion to Compel, the Court agreed to consider an in camera review of any documents within the privilege log at issue if Plaintiffs could present "compelling evidence as to a specific document, or documents... that they contend do not fall within the recognized psychologist/psychiatrist-patient privilege." (Doc. 109, n.1).

Plaintiffs have now filed a motion for reconsideration of the March 17, 2014 Order, requesting that we hold the patient/psychotherapist privilege inapplicable, or in the alternative, conduct an "in camera review of the documents withheld by DTA in order for the Court to determine if they should be turned over to Plaintiffs."[1] (Pls.' Br. in Supp. of Mot. for Reconsideration, Doc. 112, at 9). The parties have fully briefed the motion, and it is ripe for decision.


"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Specifically, the motion is generally permitted only if (1) there is an intervening change in the controlling law; (2) new evidence becomes available that was not previously available at the time the Court issued its decision; or (3) to correct clear errors of law or fact or prevent manifest injustice. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Moreover, "motions for reconsideration should not be used to put forward arguments which the movant... could have made but neglected to make before judgment." United States v. Jasin, 292 F.Supp.2d 670, 677 (E.D. Pa. 2003) (internal quotation marks and alterations omitted) (quoting Reich v. Compton, 834 F.Supp.2d 753, 755 (E.D. Pa. 1993) rev'd in part and aff'd in part on other grounds, 57 F.3d 270 (3d Cir. 1995)). Nor should they "be used as a means to reargue matters already argued and disposed of or as an attempt to relitigate a point of disagreement between the Court and the litigant." Donegan v. Livingston, 877 F.Supp.2d 212, 226 (M.D. Pa. 2012) (quoting Ogden v. Keystone Residence, 226 F.Supp.2d 588, 606 (M.D. Pa. 2002)).


A. Newly Discovered Evidence

Plaintiffs assert that Defendant Mattison's "affirmative defense that he lacked the requisite malice or reckless indifference to any federally protected right or [sic] Plaintiffs' and did not otherwise meet the requirements of outrageousness, maliciousness, or recklessness needed to support an award of punitive damages'" constitutes newly discovered evidence. (Doc. 112, at 4-5) (quoting Mattison's Answer to Amended Complaint, Doc. 106, ΒΆ 3).

Using this purported "newly discovered evidence", Plaintiffs argue that Mattison waived his patient/psychotherapist privilege by putting his mental state at issue. This is an erroneous understanding of the definition of evidence. An affirmative defense is not "newly discovered evidence." Instead, it is a legal pleading permitted under FED. R. CIV. P. 8(c) that raises a recognized legal defense, i.e. the insufficiency of Plaintiffs' claim for punitive damages. Its assertion is not a pleading of facts which could arguably serve as a claim of new evidence. Indeed, the standard of pleading "facts" in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) has been held not to apply to affirmative defenses. Tyco Fire Prods. LP v. Victaulic Co., 777 F.Supp.2d 893, 898-901 (E.D. Pa. 2011). Consequently, it is ultimately irrelevant whether or not the affirmative defense was "not ripe... for argument at the time of the March 17, 2014 Order" as asserted by Plaintiffs (Doc. 119, at 4).

In addition, even if an affirmative defense could constitute new evidence, Plaintiffs fail to identify how Mattison's affirmative defense does so. Mattison filed his Answer to Plaintiffs' Amended Complaint on March 6, 2014. The Court issued the Order at issue on March 17, 2014, following a conference call with counsel on that same day. Plaintiffs clearly recognize that Mattison's Answer was filed almost two weeks prior to the conference call with the Court. (Doc. 112, at 3) (U[O]n March 6, 2014, subsequent to the closing of the record concerning the Motion to Compel but prior to the Court's decision resolving the issue, Defendant Mattison filed his Answer to the Second Amended Complaint."). While this timeline confirms that the affirmative defense raised by Mattison was filed after the close of the record for the Motion to Compel, and therefore could not have been included in the appropriate briefs or the Motion itself, there was ample opportunity for Plaintiffs to raise the issue in the conference call with the Court. Indeed, when asked by the Court how Mattison waived his privilege, Plaintiffs' counsel replied he had done so by "producing the psychological evaluation that was produced by DTA [and] by talking at his own deposition about his treatment there." (Unoff. Tr., at 6). Despite the fact that the Court had not yet issued an Order on the Motion, and the affirmative defense was known to the plaintiffs at that ...

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