Eighty years after Rhett Butler rejected Scarlett O’Hara’s plea for reconciliation, a court has rejected Scarlett Palm’s plea to drastically alter the concept of at-issue waiver.
We know that, for the most part, a party waives the privilege, such as the attorney–client privilege or psychiatrist–patient privilege, by basing a claim or defense on the privileged subject, like legal advice or one’s mental health. But can a party to a civil lawsuit affirmatively put the opposing party’s privileged subject at issue and then pierce the privilege by claiming at-issue waiver?
Scarlett (of Illinois, not Tara) presented this novel argument, but in an issue of first impression, the Illinois Supreme Court ruled that only the privilege holder—not an adversary—controls when the at-issue waiver doctrine applies. Palm v. Holocker, 2018 IL 123152 (Ill. Feb. 28, 2019). You may read the opinion here. Let’s explore this interesting and little-addressed privilege topic. More…
You remember the scene. You know, the scene in Season 3, Episode 12 of Breaking Bad, where Mike Ehrmantraut, the do-it-all cleaner, hitman, and investigator, gives his “half-measures” speech to Walter White, artfully imploring White to eliminate co-meth-dealer Jesse Pinkman. Ehrmantraut concludes his riveting personal anecdote by saying: “Moral of the story is I chose a half measure when I should have gone all the way.”
Judge Iain D. Johnston, unafraid to employ full measures when addressing thorny privilege issues, as evidenced in my post, Monty Python, Sinatra, and Rejection of the Self-Critical Analysis Privilege, adhered to Ehrmantraut’s directive by ruling that a plaintiff completely waives the federal common-law psychotherapist–patient privilege when he seeks damages for mental-health injuries. This is true even where the plaintiff limits damages to so-called “garden-variety” emotional injuries. Laudicina v. City of Crystal Lake, 2018 WL 5389844 (N.D. Ill. Oct. 29, 2018). You may read the thorough opinion here.
What is “Garden Variety”?
When City of Crystal Lake (Ill.) Police Officer Krzysztof Krol responded to domestic-violence report, Joseph Laudicina, armed with a knife, reportedly lunged at Officer Krol in a threatening manner. Office Krol shot Laudicina, More…
In a personal-injury case, the plaintiff generally waives any privilege protecting communications with her health-care providers regarding the injuries for which she seeks damages. Privilege Waiver 101, right?
Not in Oregon. The state’s supreme court ruled that the physician–patient privilege precludes discovery of the plaintiff’s communications with her physician even where her medical treatment is at issue. The court’s opinion is so draconian that it prohibits a defense lawyer from asking deposition questions as routine as “what injury did you receive?”
The court’s decision offered a potential—but unanswered—waiver argument (discussed below), but otherwise allows Oregon plaintiffs to use the physician–patient privilege as a sword and a shield in personal-injury cases. Hodges v. Oak Tree Realtors, Inc., 426 P.3d 82 (Ore. 2018). You may read the decision here.
Oregon’s Physician–Patient Privilege
Oregon Evid. Code 40.325, or Rule 504-1, provides a patient, in a civil action, a privilege to refuse to disclose confidential communications with her physician. The rule contains a “nonexclusive list” (remember this phrase) of three exceptions for communications made to a physician during a:
(1) commitment-related examination (Rule 504-1(4)(c))
(2) court-ordered physical examination (Rule 504-1(4)(a); and
(3) court-ordered examination “performed under” Ore. R. Civ. P. 44 (Rule 504-1(4)(b)).
Do the last two exceptions sound redundant to you?
Issues and Ruling