On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-202-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Chambers and Waugh.
This appeal requires us to address the parameters of discovery concerning the notes of a party's psychotherapist when the psychotherapist is a licensed physician (psychiatrist) rather than a licensed psychologist and when that party's mental health condition is not primarily at issue in the litigation. Because we have determined that the motion judge's discovery order was overly broad and inadequately protective of highly personal information, we vacate the dismissal of the action and remand for further proceedings not inconsistent with this opinion.
Plaintiff Susan Ann Laubach is the daughter of Charles P. Laubach, who died testate in 2002. Three months prior to his death, Charles executed a will containing a special needs trust for Susan, naming as trustees his other daughter, defendant Patricia Sciaretta, her husband, defendant Joseph Sciaretta, and a financial institution. Twenty-nine percent of Charles's residuary estate was left to the trust. Any trust assets remaining at Susan's death are to be distributed to Patricia and her two children.
The relevant portion of the trust provision of the will provides as follows:
(a) Twenty-Nine Percent (29%) to the Trustees, hereinafter named, of a Special Needs Trust for the benefit of my daughter, SUSAN ANN LAUBACH, if she survives me. It is my intention to create a special needs trust so that the Trustee shall have complete discretion over any distributions for my daughter, SUSAN ANN LAUBACH. I grant to the Trustee sole and absolute discretion to invade income and principal for any need that may be required for my daughter, SUSAN ANN LAUBACH, taking into consideration any aid that she may receive from any governmental source. It is my intention that no part of the trust shall be used to supplant or replace public assistance benefits of any county, state, federal or other governmental agency that has a legal responsibility to serve persons with disabilities that are the same or similar to those which SUSAN ANN LAUBACH may be experiencing. The Trustee should cooperate with the beneficiary's conservator, guardian, or legal representative to seek support and maintenance for the beneficiary from all available resources, including but not limited to, the Supplemental Social Security Income Program (SSI); Supplemental Income Program (SIP); the Old Age Survivor and Disability Insurance Program (OASDI); the Medicaid Program; and any additional, similar or successor programs; and from any private support sources. Any expense of the Trustee, including attorney fees, shall be a proper charge to the trust. No interest of this Trust shall be subject to anticipation or voluntary or involuntary alienation. Upon the death of my daughter, SUSAN ANN LAUBACH, or in the event that she does not survive me, the balance on hand shall be distributed in equal shares to PATRICIA LEE SCIARETTA, MICHAEL SCIARETTA and LEE ANN ENG. If any of them shall not survive me, his or her share shall be distributed as set forth in the other sections of this Article Two.
Although Susan concedes that she has been diagnosed with several forms of mental illness, including bipolar disorder, depression and anxiety, she contends that she is able to function normally, pointing to the fact that she retired after a thirty-five year career in teaching and that she continues to work part-time. She maintains that she does not have or need a conservator or a guardian, and consequently does not require a special needs trust.*fn1 Susan argues that her father never intended there to be a special needs trust, which had not been included in his two prior wills. Instead, she asserts that her sister and brother-in-law arranged for the inclusion of the trust in the will so that her access to her father's bequest would be limited, thereby preserving the assets for members of their family to inherit on her death.
Susan initially challenged the will in the Chancery Division, Probate Part, but her action was dismissed as untimely. See R. 4:85-1, which generally requires a person aggrieved by the probating of a will to file a challenge within four months. She filed the present action in January 2006. The initial defendant was Colin Quinn, the attorney who drafted the will. Susan subsequently filed an amended complaint to name Quinn's law firm and her sister and brother-in-law as defendants. The amended complaint states eight causes of action, including malpractice, breach of fiduciary duty, fraud and defamation.
During the discovery process, a dispute arose with respect to Quinn's request that Susan produce copies of all of her mental health records, including the notes of her psychotherapist, who is psychiatrist rather than a psychologist. As will be seen, the difference has some significance because a psychiatrist, being a physician, is covered by the physician-patient privilege, N.J.R.E. 506 and N.J.S.A. 2A:84A-22.1, whereas a psychologist is covered by the more restrictive psychologist-patient privilege, N.J.R.E. 505 and N.J.S.A. 45:14B-28.
Quinn moved for an order compelling production of the psychotherapy records, as well as other documents not at issue on this appeal. Susan opposed the motion, requesting oral argument because of the confidential nature of the records at issue. The motion judge denied oral argument and ordered production of the documents. The motion judge did not explain his reasons, nor did he order an in camera review of the documents.
Susan filed a motion for reconsideration, again requesting oral argument. The motion judge again denied oral argument. He also denied the motion. He briefly explained his reasons at the foot of the order. After noting that oral argument is not required on discovery motions, R. 1:6-2(a), and that Susan had failed to meet the "stringent standard" for reconsideration set forth in Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), he stated his conclusion that the documents were "clearly relevant to the issues in the case."
Susan filed an unsuccessful motion for leave to appeal the discovery orders. She then produced all of the disputed documents except for the psychotherapy records. Quinn subsequently moved for dismissal of the amended complaint without prejudice for failure to produce the disputed records as previously ordered. Susan opposed the motion and requested oral argument. The motion judge granted oral argument, which was held on May 25, 2007.
The oral argument centered on whether the psychotherapy records were relevant to the case and whether they were protected by the more restrictive psychologist-patient privilege, which affords such records the same level of protection as the attorney-client privilege, or whether they were covered by the physician-patient privilege, which contains the following specific exception: "There is no privilege under this act in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party or under which the patient is or was insured." N.J.R.E. 506(d); see Arena v. Saphier, 201 N.J. Super. 79, 85 (App. Div. 1985), holding that the quoted language is not applicable to the psychologist-patient privilege.
The motion judge held that the physician-patient privilege (N.J.R.E. 506) was applicable, that Susan had put her mental condition at issue and that the documents were relevant. He did, however, limit the period of disclosure to ten years, rather than the thirty years originally ordered. Initially, the motion judge declined to review the documents in camera because of the time involved in reviewing "massive amounts of documents." However, he subsequently agreed to do so, "against [his] best instincts," but then went on to state that he "trust[ed] that [Susan's counsel was] not going to bombard [him] with hundreds of pages of documents." He added that "if it does come to that, then [he might] modify the ruling."
Because Susan's attorney had stated during oral argument that Susan was not willing to provide the psychotherapy records for in camera review, the motion judge dismissed that case without prejudice for failure to comply with the prior order, as modified. He set forth the parameters required for a motion to reinstate, specifically that ten years of the psychotherapy records be provided for his in camera review.
Susan did not move to restore the amended complaint or produce the disputed records. In August 2007, Quinn moved for dismissal with prejudice. Oral argument on that application, which is required under Rule 4:23-5(a)(2), was held on October 10, 2007. The motion judge granted the motion and stated his reasons as follows:
As long as the mental state of the plaintiff is an issue in the case, and the Court believes that it is, then the records have to be disclosed. They can be disclosed to the Court, an in-camera review can be done, which I'm certainly not anxious to do, but I would represent to plaintiff's counsel, and the plaintiff apparently is sitting here, that if there are things in there that do not need to be disclosed, they won't be disclosed, but I can't expect the defense to just sit with a certification from a treating psychiatrist who says she is competent to handle her own affairs and accept that on face value. These records, I believe, are relevant.
How much they get used at a trial is another issue, but they certainly are relevant discovery, and it's necessary, when we're discussing the testator's intent and why his intent was captured in a special needs trust to determine the mental competency of the plaintiff. It may not be the only issue that such a trust was created, but as long as it's an issue, then they have to be disclosed. And I've ruled on this on several occasions. I'm not going to recite the procedural history because I was closer to it earlier on than I am now and I don't want to recite something now that would contradict what was said before.
But I've given Miss LaGrotta, I think, ample opportunity to state her position in person, in briefs, and I just plain disagree with it. And the Appellate Division did not find on interlocutory appeal that I was so incorrect that they had to take the matter on an interlocutory basis and reverse the trial court.
I reduced the records from 30 years to 10 years. I've said it can be in camera and, I mean, I would eliminate the last five years if there is continuing treatment because we're talking about the testator's intent in 2002, but I'm not going to completely reverse my prior position. I cannot understand what the reluctance is here.
MS. LA GROTTA: Can I ask a question, Your Honor?
THE COURT: And I don't draw that significant a distinction between a psychiatrist and any other physician, but we have medical records turned over in cases every day of the week; and, I'm sorry, psychiatric records may strike deeper than other medical records, but if you're going to have litigation of this sort, then I believe these records are relevant and they're going to have to be disclosed. So I'm not reversing my prior position.
I would give you ten days to think about it further. I will give you every opportunity to discuss it with your client, but if you're position is as firm as it has been and under no circumstance are you turning anything over, even in camera, then I am going to grant the motion to dismiss the case with prejudice.
MS. LA GROTTA: May I ask one question? Would Your Honor be willing to restrict the order from the prior will of 2000 to the will of 2002? Because clearly under their position something happened in the two years.
THE COURT: No. Apparently, there's a history here. And what I mean by that is, Mr. Quinn dealt with Charles Laubach over a number of years and I have a feeling a lot of this history is going to come into play in this case. I don't have all the details at this point, but I'm unwilling to just restrict it to a two-year period. It's one thing if we're talking about the last five years because I don't think that has any significance. It's one thing if we are going way, way back in time because that could be too remote, but certainly for the ten years, 1992 ...