Culbertson v. Culbertson

• Decision Date: 26 September 2012
• Docket Number: No. W2011–00860–COA–R10–CV.,W2011–00860–COA–R10–CV.
• Citation: 393 S.W.3d 678
• Parties: Hannah Ann CULBERTSON v. Randall Eric CULBERTSON.
• Court: Tennessee Court of Appeals

393 S.W.3d 678

Hannah Ann CULBERTSON

v.Randall Eric CULBERTSON.

No. W2011–00860–COA–R10–CV.

Court of Appeals of Tennessee.

Jan. 18, 2012 Session.

May 23, 2012.

Application for Permission to Appeal Denied by Supreme Court Sept. 26, 2012.

Rachael E. Putnam and Jason D. Nowlin, Memphis, Tennessee, for the appellant, Randall Eric Culbertson.

Amy J. Amundsen and Mary L. Wagner, Memphis, Tennessee, for the appellee, Hannah Ann Culbertson.

OPINION

DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

DAVID R. FARMER, J.

This extraordinary appeal arises from the trial court's order granting Wife's motion for disclosure of Husband's psychological records. After thorough consideration, we conclude that the trial court erred by failing to consider Husband's claims that his psychological records were protected from disclosure by the psychologist-client privilege, and that he did not waive the privilege. Accordingly, we vacate the judgment of the trial court and remand this matter to the trial court for further proceedings.

I. Background and Procedural History

Randall Eric Culbertson (“Husband”) and Hannah Ann Culbertson (“Wife”) were married on May 1, 2004. Two minor children were born of the marriage. In July 2010, however, Husband and Wife separated.

On November 8, 2010, Wife filed a complaint for divorce in the Circuit Court of Shelby County.¹ In her complaint, Wife alleged numerous instances of physical and emotional abuse by Husband toward Wife and the parties' children. In response, on November 19, 2010, Husband filed an answer and counter-complaint for divorce, wherein Husband denied Wife's allegations of abuse and demanded “strict legal proof thereof.” In his counter-complaint for divorce, Husband sought to be awarded sole decision-making authority and sole custody of the parties' children.

After attending mediation on November 22, 2010, the parties reached an agreement on temporary matters. On December 3, 2010, the trial court entered a Consent Order on Temporary Parenting Schedule and Temporary Support (“Consent Order”). The Consent Order provides, in part, that:

[Husband] shall continue counseling with Dr. Deason pending his commencing therapy with Dr. Russell Crouse, Ph.D. on December 14, 2010 and Mother shall commence therapy with Dr. Lisa Clark, Ph.D. The parties' minor children, and parents, as needed, shall be evaluated by Dr. Jane Clement and upon completion of her evaluation, Dr. Clement shall serve as the children's counselor. The parties agree that Dr. Clement has permission to speak with the parties' respective counselors and the parties shall cooperate in making the children available for the evaluation and counseling. Dr. Clement shall assist the Court and the parties by making recommendations as to the best parenting arrangement for the parties and children.

On February 7, 2011, Wife issued three subpoenas duces tecum, and three notices to take depositions duces tecum, to three of Husband's psychologists, specifically, Dr. David Deason, Dr. Wyatt Nichols, and Dr. Russell Crouse. ² Wife requested that each psychologist produce “all notes and records for or pertaining to sessions with [Husband], and any test results and/or data received from the initial therapy session to the present date.” In response, Husband filed a motion to quash arguing that the information sought by Wife was not discoverable because it was protected by the psychologist-client privilege under Tennessee Code Annotated section 63–11–213 (2010). On February 18, 2011, Wife filed a “Motion for Release of [Husband's] Psychological Records, to Compel [Husband] to Execute HIPAA Authorization, and for Qualified Protective Order” (“Motion for Release of Psychological Records”). Thereafter, Wife filed a response to Husband's motion to quash, Husband filed a response to Wife's Motion for Release of Psychological Records, and each party supported their respective pleadings with detailed memorandums of law.

On March 25, 2011, the trial court conducted a hearing on Husband's motion to quash and Wife's Motion for Release of Psychological Records. Husband argued that his privileged psychological records should not be released because he did not waive the psychologist-client privilege, the parties agreed in the Consent Order that Dr. Clement would assist the trial court with psychological evaluations and any recommendations needed to make the best parenting arrangement, and Wife had access to other readily available information to support her allegations of Husband's physical and emotional abuse. Despite Husband's arguments, the trial court granted Wife's Motion for Release of Husband's Psychological Records subject to a protective order. In light of this ruling, the trial court granted Husband's motion to quash as it related to the depositions of his psychologists subject to later renewal by Wife.

Following the hearing, counsel for Wife provided Husband's counsel with a proposed order granting her Motion for Release of Psychological Records, as well as a “Qualified Consent Protective Order as to Psychological Records of [Husband]” (“Qualified Consent Protective Order”). Husband refused to agree to the entry of the Qualified Consent Protective Order because he did not consent to the order, and because it provided, in part, that his psychological records could be disclosed to or discussed with:

Experts hired by a party to this action for the purpose of giving advice or testimony in this action; [and]

Any person who is noticed for deposition or otherwise subpoenaed to testify in this matter;....

Given their refusal to agree on the language of the proposed Qualified Consent Protective Order, counsel for the parties presented the issue to the trial court. Despite his objections, the trial court ordered Husband's counsel to sign the proposed Qualified Consent Protective Order. On April 4, 2011, the trial court entered the Qualified Consent Protective Order and an order granting Wife's Motion for Release of Psychological Records. Subsequently, on June 20, 2011, this Court granted Husband's application for extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate Procedure.³

II. Issue Presented and Standard of Review

On appeal, the sole issue for our review is whether the trial court erred in granting Wife's Motion for Release of Psychological Records. “Because decisions regarding pretrial discovery are inherently discretionary, they are reviewed using the ‘abuse of discretion’ standard of review.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010) (citations omitted). A trial court abuses its discretion when it “causes an injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.2011) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.2010)). “When called upon to review a lower court's discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R.App. P. 13(d) and should review the lower court's legal determinations de novo without any presumption of correctness.” Lee Medical, 312 S.W.3d at 525 (citing Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn.Ct.App.2004); Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn.Ct.App.2002)).

III. Discussion

Husband argues that the trial court erred in granting Wife's Motion for Release of Psychological Records because his psychological records are protected from discovery by the psychologist-client privilege under Tennessee Code Annotated section 63–11–213. On the other hand, Wife argues that the trial court correctly ordered disclosure of Husband's psychological records because Husband waived the psychologist-client privilege.

As recently stated by our supreme court in Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496 (Tenn.2010):

When a discovery dispute involves the application of a privilege, the court's judgment should be guided by the following three principles. First, Tennessee's discovery rules favor discovery of all relevant, non-privileged information. Second, even though privileges do not facilitate the fact-finding process, they are designed to protect interests and relationships that are regarded as sufficiently important to justify limitations on discovery. Third, while statutory privileges should be fairly construed according to their plain meaning, they need not be broadly construed.

Id. at 504 (citing Lee Medical, Inc., 312 S.W.3d at 525). Furthermore, as explained in State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust, 209 S.W.3d 602 (Tenn.Ct.App.2006):

To resolve issues pertaining to the discovery of an adversary's claim of ... privilege, the trial court and the parties are to follow sequential steps, which entail shifting burdens of proof.

The party seeking discovery, has the burden to establish (1) that the material being sought is relevant to the subject matter involved in the pending action, (2) that the material being sought is not otherwise privileged, and (3) that the material being sought consists of documents or other tangible things. Once the party seeking discovery establishes a prima facie showing that the materials it sought were discoverable, the burden shifts to the party opposing discovery to show that the materials were ... privileged....

If it is established that a portion of the requested documents are [privileged], a protective order as to those documents is in order.

Id. at 617–18 (citations omitted).

Tennessee law recognizes a privilege against compelled disclosure of confidential communications between a psychologist and client.⁴ Specifically, Tennessee Code Annotated section...