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Swanger v. Warrior Run School District

United States District Court, M.D. Pennsylvania

December 31, 2014

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


ROBERT MARIANI, District Judge.


Presently before the Court is a Motion for In Camera Review (Doc. 124) filed by Plaintiffs, Elaine and Victor Swanger and their child, B.J.S. On June 30, 2014, in response to Plaintiffs' motion, the Court issued an Order requiring Defendant, Diversified Treatment Alternatives, Inc. ("DTA"), to produce the specific documents contained in the Philadelphia Diversified Treatment Claim File Privilege Log identified by Plaintiffs in their motion (see Doc. 124, Ex. B, C, D) for an in camera inspection by this Court and deferring a determination of Plaintiffs' motion until the Court received the requested documents. (Doc. 138).[1] DTA promptly produced the documents at issue. As a result, the Court issued an Order confirming that the information outlined by DTA in the Privilege Log accurately reflected the contents of the records, but requesting supplemental briefs by the parties detailing whether any of the documents were subject to any confidentiality protections or privileges under federal or state statute or at common law, other than the psychotherapist-patient privilege provided under 42 PA. CONS. STAT. ANN § 5944, and how any, or all, of the documents were, or were not, relevant to Plaintiffs' claims. (Doc. 144).

Plaintiffs' motion for in camera review enumerated specific documents, or categories of documents, listed in the Philadelphia Diversified Treatment Claim File Privilege Log. Specifically, Plaintiffs requested the listed (1) Psychological Evaluations, Psychiatric Evaluations, Neuropsychological Assessments, and Psychological/Psychiatric Evaluations, arguing that "at the very least, these documents contain non-privileged portions as determined with respect to the October 25, 2010 Psychological Evaluation"; (2) Case Notes and Summaries, claiming that these documents "would largely contain information other than communications between Defendant Mattison and his psychiatrist, such as opinions, observations, or diagnosis, which is not protected by the [psychotherapist-patient] privilege"; and (3) an email from Erik Cummings to Karen Bloom, because "the document is not likely to contain communications between Defendant Mattison and his psychiatrist and therefore not protected by the privilege." (Doc. 125, at 4).

As we previously stated in the Court's Memorandum Opinion denying Plaintiffs' Motion for Reconsideration of our March 17, 2014 Order (Doc. 120), a psychotherapist may not invoke the federal psychotherapist-patient privilege on behalf of his or her patient. However, while DTA alone may not invoke this privilege on behalf of Mattison, absent a waiver by Mattison or a decision by this Court that one of more of the documents at issue, or portions of those documents, are not protected by the psychotherapist-patient privilege or any other applicable federal or state statute or at common law, DTA has a legal and ethical duty to deny the Swangers access to the requested documents listed within the Privilege Log. It is undisputed that Mattison never signed a written waiver releasing any treatment records or documents in DTA's possession to Plaintiffs. Therefore, the issues before this Court are what protections, if any, apply to the requested documents and whether Mattison can be deemed to have waived by implication those protections with respect to some, or all, of his treatment records. For the reasons that follow, we have determined that all of the documents requested by Plaintiffs are protected from disclosure by the psychotherapist-patient privilege and/or the Mental Health Procedures Act and that Mattison did not waive any privilege such as to compel DTA to provide Plaintiffs with any of the requested documents. Accordingly, we will deny Plaintiffs' motion for in camera review.


As a threshold issue, the Court is governed by Federal Rule of Evidence 501 which provides that:

The common law - as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

FED. R. EVID. 501. Consequently, while federal law recognizes a psychotherapist-patient privilege, see Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), the extent and specific contours of this established privilege are dictated by Pennsylvania law, subject to the Supreme Court's delineation that the alleged privileged communications were made (1) confidentially, (2) between a licensed psychotherapist and her patient, and (3) in the course of diagnosis or treatment, id. at 15. In light of these requirements, the Supreme Court also expressly rejected the necessity of a balancing analysis of the evidentiary need for disclosure of the psychotherapist-patient communications against the patient's privacy interests. Id. at 7, 17.

A. Psychotherapist-Patient Privilege Under 42 PA. CONS. STAT. ANN. § 5944

In the Commonwealth of Pennsylvania, the psychotherapist-patient privilege statute provides that:

No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his ...

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