DENISE J. BROUSSEAU, PETITIONER,
v.
BROWARD COUNTY BOARD OF COMMISSIONERS, KEN JENNE, IN HIS FORMER OFFICIAL CAPACITY, AND AL LAMBERTI, IN HIS CURRENT OFFICIAL CAPACITY AS SHERIFF OF BROWARD COUNTY, RESPONDENTS
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A firefighter/paramedic sued her employer for sex discrimination based on differential discipline for allegedly rude and abrasive conduct. The court granted a petition for certiorari to overturn an order requiring disclosure of the employee's psychological records, finding that the employer failed to establish that the employee's mental condition was a material issue in the case.
The court held that the employer failed to demonstrate that the employee's mental condition was a material issue in the case, and therefore the psychological records remain privileged under Florida Statute section 90.503(2). The order compelling production was quashed because the focus of the dispute is the employee's workplace behavior, not her mental or emotional state.
[1] Certiorari review is appropriate for discovery orders that depart from essential legal requirements and cause material injury.
[2] Discovery requests seeking information irrelevant to pending claims or defenses, or not calculated to lead to admissible evidence, should be denied.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A party seeking to depose a psychotherapist or obtain records which are privileged under the statute has the burden of demonstrating that the patient's mental condition has been introduced as an issue in the case.”
Establishes the legal standard that the burden is on the party seeking disclosure to show mental condition is a material issue in the case.
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Join FLexlaw to unlock all legal intelligenceDenise Brousseau, a firefighter/paramedic, was suspended and demoted by Broward County for allegedly being rude and abrasive to colleagues and patient…
The full statement of facts, procedural history, and disposition for this case are member content.
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KLEIN, J.
We grant the petition for writ of certiorari challenging an order compelling petitioner to produce her psychological records in a pending lawsuit. The suit charges discrimination by her employer in suspending and demoting her based on allegations that she was rude and abrasive to her fellow firefighters and paramedics, and patients as well. She alleged she was being disciplined for the same type of conduct which did not result in discipline for similarly situated male employees engaging in the same behavior. Even though petitioner is not seeking damages other than lost wages and benefits and future pecuniary damages, the trial court granted respondent’s motion for psychological examination, which alleged that petitioner’s mental condition was in controversy. The motion was also grounded on the fact that petitioner had retained a psychological expert to testify that petitioner’s gender was a substantial motivating cause of her treatment by her employer which was requiring her to conform her behavior to stereotypical notions of how a woman should behave. This expert, however, testified on deposition that she did not meet with or speak to petitioner, nor did she evaluate her. She was merely testifying based on the facts.
Petitioner seeks review based on section 90.503(2), Florida Statutes (2008), which protects a patient from having to disclose confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition. Under section 90.503(4)(e), there is no privilege for communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies on that condition as an element of a claim or defense.
Petitioner argues that she is making no claims for mental or emotional distress, and accordingly her psychological records going back eight years, which the trial court ordered her to produce, are privileged.
A party seeking to depose a psychotherapist or obtain records which are privileged under the statute has the burden of demonstrating that the patient’s mental condition has been introduced as an issue in the case. Palm Beach Co. Sch. Bd. v. Morrison, 621 So. 2d 464 (Fla. 4th DCA 1993). Respondents have failed to cite any authority which, under the facts in this case, would make the information discoverable. It is petitioner’s behavior on the job which is at issue, not her mental or emotional state of health. We accordingly grant the petition and quash the order of production.
GROSS and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cruz-Govin v. Torres, 29 So. 3d 393 (Fla. 3d DCA 2010)…e condition as an element of his or her claim or defense. Torres, the party seeking production of the privileged information, has the burden to demonstrate that this exception to the privilege applies. See Brousseau v. Broward County Bd. of Comm’rs, 992 So. 2d 882, 883 (Fla. 4th DCA 2008); Quinney v. Quinney, 890 So. 2d 407, 409 (Fla. 5th DCA 2004); Morrison, 621 So. 2d at 468. In support of his position, Torres relies upon: the allegations of the amended complaint stating that at the time of the accident Cru…
Authorities Cited
- Palm Beach Cnty. Sch. Bd. & Terry Andrews v. Morrison, 621 So. 2d 464 (Fla. 4th DCA 1993)