Hayer v. Liverant

Background

Julia Hayer alleges federal and state statutory claims and state tort claims based on her landlord’s refusal to provide a reasonable accommodation allowing her to keep an assistance dog in her home. Her complaint alleges that she has a mental health condition affecting major life activities, including sleeping and coping with stress, and that she sought an emotional-support or service dog in training with support from her therapists. She alleges that she suffered anxiety and severe mental and emotional anguish, including in connection with her claim for intentional infliction of emotional distress.

Defendant Alex Liverant sought discovery concerning Hayer’s mental health. He requested psychotherapy notes from Dr. Koshkarian, one of Hayer’s treating psychologists, and an order verifying that Hayer and her counsel had provided all therapist records they received. He also requested a mental examination under Rule 35 of the Federal Rules of Civil Procedure, to be conducted by Dr. John Fielder, to evaluate Hayer’s emotional distress, mental-health condition, and whether a support animal could be a reasonable accommodation.

Records subpoena

The court denied the request to enforce the subpoena for Dr. Koshkarian’s psychotherapy notes. The court rejected Hayer’s argument that a release authorization could not be effective because she did not have an individual right to access psychotherapy notes, but it concluded that Liverant had not shown that the court had authority to compel Hayer to authorize the release.

The court found that the existing approach to producing Dr. Koshkarian’s records was generally consistent with the rule requiring a subpoenaing party to take reasonable steps to avoid imposing undue burden or expense on a nonparty. The court granted in part the request to verify the completeness of the therapist-record production. Hayer and her counsel were ordered to sign and submit declarations stating that they had turned over all documents received from the therapists. The court did not impose additional burdens on the nonparty therapists.

Rule 35 mental examination

Rule 35 permits a court to order a party whose mental or physical condition is in controversy to undergo an examination when the requesting party shows good cause. The court found that Hayer’s mental condition was in controversy because she asserted an intentional-infliction-of-emotional-distress claim and discrimination claims based on her mental health condition.

The court concluded that Liverant had not shown good cause for an examination focused on Hayer’s intentional-infliction-of-emotional-distress claim. Liverant had already deposed Hayer, her treating psychiatrist, and one therapist, and expected to depose the other therapist. Hayer did not allege ongoing severe emotional distress, did not plan to use expert testimony to prove emotional distress, and had identified other sources of relevant information.

The court reached a different conclusion regarding Hayer’s mental disability and whether a dog was a reasonable accommodation. Liverant disputed Hayer’s condition and the accommodation, identified concerns about the support letters, and specified a two-hour Minnesota Multiphasic Personality Inventory-2 test. The court found good cause for an examination limited to assessing Hayer’s mental condition and whether the dog was a reasonable accommodation.

The court nevertheless ruled that Dr. Fielder was not suitable to conduct the examination because he had already been involved in the dispute and Liverant had relied on Dr. Fielder’s earlier assessment of Hayer’s support letters when resisting her accommodation request. The court therefore granted and denied in part the Rule 35 request: Liverant could conduct the limited examination but had to retain a qualified examiner other than Dr. Fielder.

Disposition

The court denied the request to enforce the therapist-records subpoena as to psychotherapy notes. It granted in part the request for an order verifying completeness of the therapist-record production and ordered Hayer and her counsel to provide declarations. It granted and denied in part the request for a Rule 35 mental examination, permitting a limited examination by a qualified examiner other than Dr. Fielder.