Magney v. Pham

• Decision Date: 02 July 2020
• Docket Number: No. 96669-9,96669-9
• Citation: 195 Wash.2d 795,466 P.3d 1077
• Parties: Logan MAGNEY, a minor; Caleb Magney, a minor; Brian Magney and Emily Magney, Petitioners, v. TRUC PHAM, MD; Ayumi I. Corn, MD; Liqun Yin, MD; and Incyte Diagnostics, a Washington corporation, Respondents.
• Court: Washington Supreme Court

195 Wash.2d 795

466 P.3d 1077

Logan MAGNEY, a minor; Caleb Magney, a minor; Brian Magney and Emily Magney, Petitioners,

v.TRUC PHAM, MD; Ayumi I. Corn, MD; Liqun Yin, MD; and Incyte Diagnostics, a Washington corporation, Respondents.

No. 96669-9

Supreme Court of Washington.

Filed July 2, 2020

Argued November 14, 2019

George M. Ahrend, Ahrend Law Firm PLLC, 100 E. Broadway Ave., Moses Lake, WA, Mark Douglas Kamitomo, Collin Michael Harper, The Markam Group Inc. PS, 421 W. Riverside Ave.Ste. 1060, Spokane, WA, for Petitioner.

Scott Matthew O'Halloran, Amanda Kathleen Thorsvig, Fain Anderson, et al., 1301 A. St. Ste. 900, Tacoma, WA, Jeffrey R. Galloway, Stephen Maurice Lamberson, Etter McMahon Lamberson Van Wert & Oresk, 618 W. Riverside Ave.Ste. 210, Spokane, WA, for Respondent.

WIGGINS, J.^*

¶1This case concerns whether petitioners/parents waived the marital counseling privilege when they filed a claim for damages against the doctors who treated their infant son on the ground that the child was misdiagnosed with cancer.Prior to the alleged misdiagnosis, Brian and Emily Magney had engaged in and completed marital counseling.Defendant doctors sought discovery of the records, but the Magneys filed a motion for a protection order to prevent disclosure given that the records are privileged.The superior court denied the motion and ordered disclosure, analogizing the marital counseling privilege to the psychologist-client privilege, which the Court of Appeals has held is automatically waived when emotional distress is at issue.

¶2We reverse the superior court.The Magneys did not automatically waive privilege because filing a lawsuit is not one of the enumerated exceptions under the "marital counseling" privilege statute.¹However, this court has a limited record of the parties’ discovery and no way of knowing the contents of the marital privilege records.Therefore, we cannot determine on the record whether the privilege has been impliedly waived by the actions of the Magneys at this point in litigation.We accordingly remand to the superior court to review the records and evidence the parties submit and to determine whether the Magneys have impliedly waived privilege consistent with section II of this opinion (discussing the test for implied waiver).If the trial court determines in camera that the Magneys have impliedly waived privilege, the trial court must then determine, in camera, whether any of the marital counseling records are relevant to the case and, thus, discoverable.

¶3 The concurrence/dissent agrees that the Magneys did not automatically waive privilege by filing a lawsuit seeking damages for mental anguish and agrees with the rejection of the automatic waiver analysis in Lodis v. Corbis Holdings, Inc. , 172 Wash. App. 835, 854, 292 P.3d 779(2013).See concurrence/dissent at 1089,1091.The concurrence/dissent also agrees that McUne v. Fuqua,42 Wash.2d 65, 76, 253 P.2d 632(1953), controls the resolution of this case such that the filing of a lawsuit is not sufficient to waive privilege and a party must affirmatively offer evidence or testimony to waive a privilege.Concurrence/dissentat 1094–95.It further agrees that if the Magneys call their counselor as a witness at trial or testify as to the substance of their counseling sessions, then they may have waived the privilege.Id . at 1095.

¶4 However, the concurrence/dissent mischaracterizes this majority opinion as conflating waiver of privilege and relevancy and, thus, incorrectly concludes that this opinion "eviscerates the legislatively created privilege."Id . at 1089.To the contrary, we conclude that the discretion of whether a privilege has been impliedly waived belongs to the trial court judge, who has access to the entirety of the record of the case and who can determine whether any disclosures thus far impliedly waived the privilege.Therefore, we remand for an in camera determination of whether the Magneys have impliedly waived privilege through any of their actions thus far and, if so, whether any records are relevant.

FACTS AND PROCEDURAL HISTORY

¶5 In 2017, the Magneys filed a medical negligence claim on behalf of themselves and their two sons, Logan and Caleb, seeking damages for "severe and permanent injuries, both mental and physical, pain and suffering and mental anguish as well as loss of consortium."Clerk's Papers(CP)at 7.The Magneys named as defendantsTruc T. Pham, MD; Ayumi I. Corn, MD; Liqun Yim, MD; and Incyte Diagnostics.

(collectively Respondents).²In the complaint, the Magneys allege that in 2015, respondents misdiagnosed Logan with acute myeloid leukemia and subjected him to unnecessary chemotherapy when he was an infant.³

¶6 During discovery, Respondents learned that the Magneys had engaged in marital counseling in 2014 prior to Logan's diagnosis.The Magneys have not engaged in marital counseling, or any other type of counseling, since Logan's diagnosis.Respondents subsequently served the Magneys with interrogatories and requests for production of documents related to the Magneys’ marital counseling.

¶7 The Magneys filed a motion for a protective order to prevent disclosure of the records, arguing that records are privileged under the marital counseling privilege codified in RCW 5.60.060(9) and that they did not waive the privilege.They further alleged that the counseling records are not relevant to any issue in the medical negligence suit as they did not put their marital relationship at issue.The Magneys allege the "loss of consortium" claim refers to the loss of consortium of the parent-child relationship between Mrs. Magney and Logan, and Mr. Magney and Logan, but not the marital relationship between Mrs. Magney and Mr. Magney.CPat 15.In the alternative, the Magneys requested in camera review of the records given the highly sensitive nature of the records and that the Magneys are not even aware of what was said in each other's separate counseling sessions.In contrast, Respondents argued that because the Magneys sought damages for "mental anguish," any mental health records are relevant and the privilege is waived automatically.

¶8The superior court denied the Magneys’ motion for a protective order, denied in camera review of the records, and ordered the Magneys to produce the marital counseling records.CPat 107.The superior court judge reasoned that "privilege is waived based upon the fact that the mental health or anguish here has been put at issue."Verbatim Report of Proceedingsat 27.The superior court judge further noted "concern[ ] about the sensitive nature of the records" and indicated that although in camera review "make[s] a bit of sense," it would not be "a very practical solution in these circumstances."Id . at 28-29.After the Court of Appeals denied review, this court granted discretionary review.

ANALYSIS

¶9 A trial court's ruling on the scope of discovery is reviewed for abuse of discretion.Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp.,122 Wash.2d 299, 338, 858 P.2d 1054(1993).A judge abuses his or her discretion when a ruling is based on untenable grounds or untenable reasons or on an erroneous view of the law.Id . at 339, 858 P.2d 1054.If a trial court bases a discovery ruling on an erroneous view of the law, the ruling is necessarily an abuse of discretion.Id.

¶10 Whether a privilege has been waived is reviewed de novo.Steel v. Olympia Early Learning Ctr.,195 Wash. App. 811, 822, 381 P.3d 111(2016)(waiver of attorney-client privilege reviewed de novo (citingPappas v. Holloway , 114 Wash.2d 198, 205, 787 P.2d 30(1990) ));Lodis , 172 Wash. App. at 854, 292 P.3d 779(waiver of psychologist-client privilege reviewed de novo (citingDietz v. Doe , 80 Wash. App. 785, 788, 911 P.2d 1025(1996) )).

¶11 Under CR26(b)(1), parties in a civil action "may obtain discovery regarding any matter, not privileged , which is relevant to the subject matter involved in the pending action."(Emphasis added.)The parties do not dispute that the Magneys’ marital counseling records are privileged under RCW 5.60.060(9).They dispute whether the Magneys waived the privilege when they filed a claim for injuries to their child and alleged damages for mental anguish to themselves arising from the child's injuries.We reverse the superior court and hold that the Magneys did not waive the privilege because under the plain and unambiguous language of the marital counseling privilege statute, no automatic waiver applies.However, we remand for in camera review of whether the privilege has been impliedly waived.

I.Statutory privileges are strictly construed to effectuate legislative intent

¶12 There are two types of privileges: common law privileges and statutory privileges.Common law privileges, such as the attorney-client privilege, are those privileges whose codifications are "merely declaratory of the common law."State v. Emmanuel , 42 Wash.2d 799, 815, 259 P.2d 845(1953).The court has more latitude to interpret common law privileges.Seeid .(although not specified in the statute codifying the attorney-client privilege, we held that "[t]he same privilege accorded the attorney is extended to the client under the common-law rule"(citingState v. Ingels , 4 Wash.2d 676, 104 P.2d 944(1940) )).In contrast, when a privilege is created by statute and thus is not a privilege found within the common law, it is considered to be in derogation of—that is, an exemption from—the common law, and the statute must be strictly construed.SeePetersen v. State , 100 Wash.2d 421, 429, 671 P.2d 230(1983)(psychologist-client privilege is created by statute in derogation of the common law and must be strictly construed);Carson v. Fine , 123 Wash.2d 206, 212-13, 867 P.2d 610(1994)(physician-patient privilege is created by statute and is strictly construed (citingDep't of Soc. & Health Servs. v. Latta , 92 Wash.2d 812, 819, 601 P.2d 520(1979) )).Unlike the attorney-client ...