United States District Court, W.D. New York
JENNIFER K. RODRIGUEZ, Plaintiff,
CHELUS, HERDZIK, SPEYER, & MONTE, P.C., Defendant.
DECISION AND ORDER
JEREMIAH J. MCCARTHY United States Magistrate Judge.
the court is defendant's motion to compel plaintiff to
authorize the production of her medical and/or mental health
records .[1" name="FN1" id=
"FN1">1] For the following reasons, the motion is
seeks actual and statutory damages for allegedly deceptive
communications by defendant in violation of the Fair Debt
Collection Practices Act (“FDCPA”, 15 U.S.C.
§1692 et seq.) and state law. Corrected Second
Amended Complaint . She alleges that “[d]ue in part
to the deceptive communications . . . [she] has suffered from
marital problems, including fighting with her husband”
(id., ¶67), that she “filed for a divorce
against her husband” but has since reconciled with him
(id., ¶68), and that she “has suffered
from anxiety and panic attacks” (id.,
opposing defendant's motion, plaintiff argues that she
seeks only “garden variety emotional distress
damages”, and that “a party does not put his or
her emotional condition in issue by merely seeking
incidental, garden-variety, emotional distress damages,
without more.” Plaintiff's Letter Brief [57');">57');">57');">57], pp.
4, 7 (quoting Ruhlmann v. Ulster County
Department of Social Services, 194 F.R.D. 445');">194 F.R.D. 445, 450
(N.D.N.Y. 2000)). “Garden-variety emotional distress
has been described . . . as ordinary or commonplace emotional
distress, that which is simple or usual.” Id.
at 7 (quoting Fitzgerald v. Cassil, 16 F.R.D. 632');">216 F.R.D. 632,
637 (N.D. Cal. 2003)).
“panic attacks [and] anxiety . . . are not
‘garden-variety' emotional distress.”
United States v. Barber, 2014 WL 2515171, *1 (W.D.
Wash. 2014). As defendant points out, both conditions are
specifically listed in the Diagnostic and Statistical
Manual of Mental Disorders (Fourth Ed.). Defendant's
Letter Brief , p. 3');">p. 3');">p. 3');">p. 3. Moreover, plaintiff's alleged
marital difficulties exceed the scope of “garden
variety” emotional distress. See Barnello v.
Bayview Loan Servicing, LLC, 2015 WL 6165277, *2 (M.D.
Fla. 2015) (“[p]laintiffs describe being embarrassed
and their [sic] being a ‘terrible stain on
their marriage and family life'. These claims are
sufficient to put Plaintiffs['] mental condition in
argues that she “does not intend to offer medical
evidence in support of her claims. As such, plaintiff has not
put her medical and/or mental health history or status at
issue in this case.” Plaintiff's Letter Brief [57');">57');">57');">57],
p. 3');">p. 3');">p. 3');">p. 3. “The issue, however, is not how Plaintiff intends
to prove her emotional distress damages, but, rather
Defendants' right to defend themselves fully against
Plaintiff's claims . . . . If a plaintiff seeks damages
for alleged emotional or psychological injuries, the
defendant's case ought not be limited by the
plaintiff's decision not to introduce available medical
or psychological testimony that bears directly on the truth
of the claim.” McKinney v. Delaware County Memorial
Hospital, 2009 WL 750181, *5 (E.D. Pa. 2009).
also argues that since the parties' settlement positions
are only $5, 000 apart, “there is not a significant
amount in controversy in this case. It will cost the pro
se defendant more money than is presently at issue
between the parties' settlement positions to depose the
plaintiff and her husband, and to engage in expert discovery
should this Court grant its motion to compel the production
of plaintiff's privileged medical information”.
Plaintiff's Letter Brief [57');">57');">57');">57], p. 4. However, plaintiff
has not agreed to limit her claim for actual damages if the
case does not settle,  and the FDCPA itself does not limit the
amount of actual damages that can be awarded. Therefore,
defendant is entitled to obtain the information necessary to
prepare itself for trial.
plaintiff argues that “to compel [her] to disclose her
confidential and privileged medical history would ensure that
she would never seek to champion her own rights, nor the
rights of others, no matter how egregious or unlawful the
conduct was”. Plaintiff's Letter Brief [57');">57');">57');">57], p. 7.
However, “plaintiff is considered the master of her
complaint”. Vasura v. Acands, 84 F.Supp.2d
531, 535 (S.D.N.Y. 2000). Had she chosen to allege merely
“garden variety” emotional distress claims, I
might not require her to disclose her medical or mental
health records. Having to elected to allege more serious
claims, she cannot deprive defendant of the opportunity to
explore the basis for those claims.
these reasons, defendant's motion to compel  is