Brown v. Montanez, 4D12–920.

Citation90 So.3d 982
Decision Date27 June 2012
Docket NumberNo. 4D12–920.,4D12–920.
PartiesJason F. BROWN, Douglas Brown and Jacqueline F. Brown, Petitioners, v. Nya Yanitza MONTANEZ and Eduardo Gonzalez, as Co–Personal Representatives of the Estate of Yanely Gonzalez, deceased, Nya Yanitza Montanez and Eduardo Gonzalez, individually and as parents and natural guardians of Eduardo Gonzalez, Jr., Nya Yanitza Montanez and Eduardo Gonzalez, individually, Respondents.
CourtCourt of Appeal of Florida (US)

OPINION TEXT STARTS HERE

Victoria L. Olds of Olds, Stephens & Harper, P.A., West Palm Beach, for petitioners.

Susan L. Palmatier of Josephs Jack, Miami, for respondents.

HAZOURI, J.

Petitioners Jason F. Brown (Jason), Douglas Brown, and Jacqueline F. Brown, the defendants in a wrongful death and personal injury action pending below, seek review of a nonfinal order of the circuit court which overruled their objection to the production of records of Jason's post-accident substance abuse treatment, as to which he claimed the psychotherapist-patient privilege. Concluding that the trial court departed from the essential requirements of law, we grant the petition.

According to the complaint, on January 30, 2010, Jason was driving a 2010 Honda Accord owned by Douglas B. Brown and Jacqueline F. Brown, with their consent, when he negligently caused it to collide with the Honda Odyssey minivan being driven by Nya Yanitza Montanez, causing the death of Montanez's infant daughter, Yanely Gonzalez; personal injury to Montanez's son, Eduardo Gonzalez, Jr.; and personal injury to Montanez herself.

The accident resulted in the filing of criminal charges against Jason. While those charges were pending, in March 2010 he was released on bond on the condition that he be transported directly to the Delray Recovery Center (the Center) and remain there, following all recommended treatment, until further order of the court. In July 2010, pursuant to another agreed order modifying bond, Jason was allowed to leave the Center and to reside with his parents in Delaware. In August 2010, he pleaded guilty and was adjudicated guilty of DUI manslaughter, DUI causing serious bodily injury, and DUI causing injury to person or property.

In April 2010, Montanez and her husband, Eduardo Gonzalez, individually, in their capacity as personal representatives of Yanely's estate, and in their capacity as parents and natural guardians of Eduardo Jr. (collectively, Plaintiffs), filed a civil action against Jason and his parents (collectively,Defendants). The amended complaint alleged that Jason was on a crack cocaine binge at the time of the accident, and his parents knew that he had had a severe problem with substance abuse and had a very poor driving record. Count I was against Jason for Yanely's wrongful death; counts II and III were against Jason's father and mother, respectively, for vicarious liability for Yanely's wrongful death; count IV was against Jason for Eduardo, Jr.'s personal injuries; counts V and VI were against Jason's father and mother, respectively, for vicarious liability for Eduardo, Jr.'s personal injuries; count VII was against Jason for Montanez's personal injuries; counts VIII and IX were against Jason's father and mother, respectively, for vicarious liability for Montanez's personal injuries; count X was against Jason for Eduardo's loss of consortium with respect to his wife, Montanez; counts XI and XII were against Jason's father and mother, respectively, for Eduardo's loss of consortium with respect to his wife; count XIII was against Jason for the plaintiff couple's loss of consortium as to Eduardo, Jr.; counts XIV and XV were against Jason's father and mother, respectively, for the plaintiff couple's loss of consortium as to Eduardo, Jr.; count XVI was against Jason for punitive damages; and count XVII was against Jason's father Douglas for negligent entrustment of motor vehicle to Jason.

In September 2011, Plaintiffs served a notice of production from nonparty and subpoena duces tecum without deposition addressed to the records custodian of four institutions, one of which was the Center. With respect to the Center, they requested its complete file on Jason. Defendants objected based on relevance and privilege. In response, Plaintiffs noted that Jason had testified that he was ordered to undergo treatment there as a condition of his bond. They cited section 90.503(4)(c), Florida Statutes, which provides as follows:

(4) There is no privilege under this section:

* * *

(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

(Emphasis added.)

They also argued that a deferred prosecution agreement in which a criminal defendant seeks drug treatment can place the defendant's mental health at issue and waive the privilege, citing Saenz v. Alexander, 584 So.2d 1061 (Fla. 1st DCA 1991) (holding that, by entering into deferred prosecution agreement consenting to disclosure of his communications with psychotherapist to his probation officer, defendant waived psychotherapist-patient privilege).

Finally, they also relied on David J. Burton, D.M.D., P.A. v. Becker, 516 So.2d 283 (Fla. 2d DCA 1987) (holding that medical records of the physician's treatment for drug abuse were subject to disclosure in medical malpractice case, because section 397.053(2), Florida Statutes (1985),1 permitscourt to order disclosure of drug treatment records when good cause is shown).

In November 2011, Defendants served their reply to Plaintiffs' response to objections to Plaintiffs' notice of production to non-parties. With respect to the Center, they argued that section 90.503(4)(c) did not apply because Jason was not relying on his mental or emotional condition as an element of his defense; Jason never waived his psychotherapist-patient privilege by consenting to disclosure in writing, as was the case in Saenz; and Plaintiffs had the burden of demonstrating good cause but had failed to do so.

At the hearing on Defendants' objections, Plaintiffs pointed out that there was a punitive damage claim against Jason, and a negligent entrustment claim against the parents. They requested the records in question in order to see if they might lead to any other relevant evidence because Jason's mother had testified on deposition that her son did not remember anything about the accident because he suffered a concussion, and Jason had claimed he did not remember anything.

The trial court overruled Defendants' objections citing Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, 30 So.3d 533 (Fla. 3d DCA), rev. denied,47 So.3d 1289 (Fla.2010), and Defendants sought certiorari relief. 2

A discovery order that requires the production of information and records that are protected by the statutory psychotherapist-patient privilege is reviewable by certiorari. Smith v. Smith, 64 So.3d 169, 170 (Fla. 4th DCA 2011).

The psychotherapist-patient privilege, described in section 90.503, Florida Statutes, protects the confidential communications between the patient and the psychotherapist and the records of mental health treatment from disclosure to third parties. The statute specifically applies to communications and records “including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.” § 90.503(2), Fla. Stat. (2011) (emphasis added).

Included within the definition of “psychotherapist,” for purposes of the privilege, are Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Family Services pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction[.]

§ 90.503(1)(a) 4, Fla. Stat. (2011) (emphasis added). In this case, the Center is licensed under chapter 397. According to the petitioners, confidential and privileged communications were made between Jason and his psychotherapists for the diagnosis and treatment of his drug addiction, falling within the privilege provided by the statute.

The statute provides for three exceptions, but we agree with the petitioners that none of them applies to Jason:

(4) There is no privilege under this section:

(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.

(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.

(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.

§ 90.503(4)(a)-(c), Fla. Stat. (2011).

The party seeking the privileged documents has the burden of proving that an exception to the privilege applies. E.g., Cruz–Govin v. Torres, 29 So.3d 393 (Fla. 3d DCA 2010). Here, Plaintiffs' position is based on subsection 90.503(4)(c), which provides an exception to the privilege when a party “relies upon the condition as an element of the party's claim or defense,” in that Jason's mother and Jason both testified that Jason had no recollection of the accident. But this testimony...

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7 cases
  • Nelson v. State
    • United States
    • Florida District Court of Appeals
    • March 9, 2022
    ...is facially apparent, the burden is on the party seeking disclosure to show that the privilege does not apply."); Brown v. Montanez, 90 So. 3d 982, 986 (Fla. 4th DCA 2012) ("The party seeking the privileged documents has the burden of proving that an exception to the privilege applies."); F......
  • Nelson v. State
    • United States
    • Florida District Court of Appeals
    • March 9, 2022
    ... ... disclosure to show that the privilege does not apply."); ... Brown v. Montanez, 90 So.3d 982, 986 (Fla. 4th DCA ... 2012) ("The party seeking the privileged ... ...
  • J.B. v. State
    • United States
    • Florida District Court of Appeals
    • July 5, 2018
    ...psychological records, she has the burden of demonstrating that one or more of the enumerated exceptions apply. See Brown v. Montanez, 90 So.3d 982, 986 (Fla. 4th DCA 2012) (holding that the party requesting discovery of privileged psychotherapist documents carries the burden of proving tha......
  • Metsker v. Carefree/Scott Fetzer Co.
    • United States
    • Florida District Court of Appeals
    • June 27, 2012
  • Request a trial to view additional results

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