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USCA1 Opinion
March 27, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1850
SHARON E. RANKIN,
Plaintiff, Appellant,
v.
LIBERTY MUTUAL INSURANCE COMPANY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Sharon E. Rankin on brief pro se. ________________
Joan Ackerstein, Jackson, Lewis, Schnitzler & Krupman and Janet _______________ _____________________________________ _____
K. Adachi on brief for appellee. _________
____________________
____________________
Per Curiam. Plaintiff-appellant Sharon E. Rankin, __________
pro se, challenges the district court's judgment dismissing ___ __
her complaint with prejudice as a sanction for her failure to
comply with discovery orders. The complaint alleged racial
discrimination, nepotism, and workplace harassment in
violation of Title VII, as well as pendent state law claims
for intentional infliction of emotional distress and
defamation.
The district judge dismissed the case upon motion
by the defendant because over a two year period plaintiff had
repeatedly ignored discovery deadlines without "justifiable
excuse," and "steadfastly refused to comply with discovery
orders even though she was given several warnings from the
court and the magistrate judge that [further] failure[s]
could lead to dismissal." Order at 9. The court found that
plaintiff's actions had "unnecessarily wasted the resources
of the defendant and the court" and impeded attempts to move
toward a resolution of the case on the merits. Id. ___
On appeal, plaintiff challenges the propriety of
the court's discovery orders compelling the deposition
testimony of her treating psychiatrist, Dr. Gaticales, and
production of related medical records. She resisted the
orders below on the ground that the doctor's knowledge and
records were protected from disclosure by New Hampshire's
psychotherapist-patient privilege. The magistrate determined
that while the federal court would recognize the privilege in
this case,1 on balance the defendant's need for the
discovery of relevant matters outweighed plaintiff's interest
in confidentiality. See Hampers, 651 F.2d at 19 (holding ___ _______
that court should weigh any injury from disclosure against
the benefit to be gained for the "correct disposal of
litigation" when deciding on applicability of a state-created
privilege in a federal question case). The district court
several times affirmed the magistrate's decision.
The balance struck by the court was well within its
discretion to resolve conflicts over the permissible scope of
discovery. See In re San Juan Dupont Plaza Hotel Fire ___ ___________________________________________
Litig., 859 F.2d 1007, 1019 (1st Cir. 1988) (holding that a ______
trial court has broad discretion in managing discovery to
balance conflicting interests in discovery of confidential
information). Plaintiff's complaint made her emotional
condition a central issue in the case. She alleged that
defendant's discrimination and intentional torts had caused
____________________
1. No issue has been raised in this appeal regarding the
magistrate's preliminary determinations, (1) that federal
common law governs the assertion of the privilege with
respect to both the federal and pendent state claims, and (2)
that the factors listed in In re Hampers, 651 F.2d 19, 22-23 _____________
(1st Cir. 1981), favor recognition of the state-created
privilege in this case. In light of our disposition we need
not address these preliminary matters. See United States v. ___ _____________
Butt, 955 F.2d 77, 80 n.3 (1st Cir. 1992) (leaving open the ____
question whether the federal rules recognize a
psychotherapist-patient privilege); United States v. Barrett, _____________ _______
766 F. 2d 609, 616 (1st Cir.) (same), cert. denied, 474 U.S. ____________
923 (1985).
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her permanent psychological injury which had disabled her
from all employment since May 9, 1990, rendered her unable to
seek work, and required her to submit to continuing
psychiatric care. She sought compensatory damages for her
alleged emotional disability in addition to punitive damages,
front pay, back pay and employment benefits. To mount a
defense, obviously defendant needed discovery from Dr.
Gaticales who, as plaintiff's treating psychiatrist
throughout the period of alleged disability, had unique
firsthand knowledge and opinions about the plaintiff's
condition. Cf. Nelson v. Lewis, 534 A.2d 720, 722 (N.H. ___ ______ _____
1987) (explaining that a state plaintiff waives her
physician-patient privilege as to formal discovery of her
medical condition when she places the condition at issue in a
malpractice case).2
Plaintiff shifts ground on appeal, however, and now
urges that the defendant had no right to depose Dr. Gaticales
____________________
2. Moreover, plaintiff specifically signalled her
intention to waive whatever remaining privilege she had by
designating Dr. Gaticales as a potential expert trial
witness. See 8 Charles A. Wright et al., Federal Practice & ___ __________________
Procedure: Civil 2d 2016.2 (1994) (reporting that the _____________________
majority of courts permit discovery of privileged matter when
it is contemplated that the privilege will be waived at
trial). The designation did not, as plaintiff seemingly
contends, insulate the doctor's firsthand knowledge of the
facts from discovery under the "work product doctrine," nor
cloak it with other protections which apply solely to expert
opinions developed in anticipation of litigation. See 8 ___
Wright et al. 2033 (citing Fed. R. Civ. P. 26(b)(4)
advisory committee's note).
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because the Supreme Court has held that a plaintiff may
sustain a Title VII harassment claim without proof of
concrete psychological harm. See Harris v. Forklift Sys., ___ ______ _____________
114 S. Ct. 367, 371 (1993) ("So long as the environment would
reasonably be perceived, and is perceived, as hostile or
abusive . . . there is no need for it also to be
psychologically injurious."). She also argues that direct
proof of psychological harm is not needed to support her
state tort claims.
Whatever the cogency of these arguments in another
case,3 here they are beside the point. Plaintiff never
asked the district court for an opportunity to withdraw or
replead her claim. Throughout the drawn-out discovery battle
____________________
3. In discrimination cases where the complaint merely
includes an allegation of emotional distress there is
disagreement whether the plaintiff's mental condition is
thereby placed "in controversy" for discovery purposes. See ___
Ziemann v. Burlington County Bridge Comm'n, 155 F.R.D. 497, _______ _______________________________
500 (D.N.J. 1994) (observing disagreement among district
courts, but finding "no substantial dispute" that plaintiff's
mental condition was in controversy where she alleged a 60%
psychiatric disability.); Bridges v. Eastman Kodak Co., 850 _______ __________________
F. Supp. 216, 221 (S.D.N.Y. 1994) (finding no "hard and fast"
rule to explain district courts' differing results, but
observing that most cases allow discovery where the plaintiff
pleads an ongoing mental injury or a separate tort claim for
emotional distress).
In this case, however, plaintiff alleged both a
separate tort claim for emotional distress, and a continuing
psychiatric disability, so there is no question that she had
placed her mental condition in controversy. Cf. Sabree v. ___ ______
United Bhd. of Carpenters & Joiners, 126 F.R.D. 422, 425 (D. ____________________________________
Mass. 1989) (denying a motion to compel production of
psychotherapist's records where plaintiff alleged only
"garden variety" emotional distress).
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below, she presented her alleged psychological disability as
a pivotal part of her case. She repeatedly emphasized the
defendant's alleged responsibility for her emotional
suffering, and her need for continuing psychiatric care, even
as she opposed defendant's requests for discovery from Dr.
Gaticales and disobeyed the court's orders.
Plaintiff's attempt in this court to recast her
pleading as a "garden variety" claim of emotional distress
comes too late. See Powers v. Boston Cooper Corp., 926 F.2d ___ ______ ____________________
109, 111 (1st Cir. 1991) (holding that this court will not
entertain theories omitted from the pleadings and not
otherwise seasonably advanced in the district court). A
party will not be permitted to undermine the district court's
management of the discovery process by shifting theories of
recovery on appeal.
We also see no merit to plaintiff's contention that
the district court chose the wrong sanction. The district
judge has considerable discretion to determine the
appropriate sanction for a party's deliberate noncompliance
with the court's discovery orders. Barreto v. Citibank, _______ _________
N.A., 907 F.2d 15, 17 (1st Cir. 1990); see also National ____ _________ ________
Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642 _____________ ________________________
(1976). Plaintiff's assertions to the effect that the court
misconstrued her recalcitrance, unfairly blamed her for
delays attributable to others, and misinterpreted its own
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orders, are belied by the record. The court explained its
reason for imposing the sanction of dismissal in a
comprehensive order that is well supported by the record.
There was no abuse.
Lastly, we perceive no support in the record for
plaintiff's contention that the district court abused its
discretion by denying her motions to dismiss the opposing
counsel from the case. See In re Bushkin Assoc., Inc., 864 ___ ___________________________
F.2d 241, 246 (1st Cir. 1989) (the district court is
necessarily accorded wide latitude in determining
disqualification motions). After careful consideration, we
find plaintiff's remaining arguments legally frivolous.
Affirmed. ________
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Document Info
Docket Number： 94-1850
Filed Date： 3/27/1995
Precedential Status： Precedential
Modified Date： 9/21/2015