Palm Beach County School Bd. v. Morrison, 93-0702

• Decision Date: 07 April 1993
• Docket Number: No. 93-0702,93-0702
• Citation: 621 So.2d 464
• Parties: 61 Fair Empl.Prac.Cas. 1026, 18 Fla. L. Week. D1312, 18 Fla. L. Week. D914 PALM BEACH COUNTY SCHOOL BOARD and Terry Andrews, Petitioners, v. Claudia MORRISON, Respondent.
• Court: Florida District Court of Appeals

Page 464

621 So.2d 464

61 Fair Empl.Prac.Cas. 1026, 18 Fla. L. Week. D1312,

18 Fla. L. Week. D914

PALM BEACH COUNTY SCHOOL BOARD and Terry Andrews, Petitioners, v. Claudia MORRISON, Respondent.

No. 93-0702.

District Court of Appeal of Florida,

Fourth District.

April 7, 1993.

On Motion for Clarification May 26, 1993.

Marlene S. Reiss of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for petitioners.

Michael B. Small and Lisa S. Small of Small, Small & Small, P.A., Palm Beach, for respondent.

POLEN, Judge.

We have for review the trial court's interlocutory order granting respondent, Claudia Morrison's motion to compel petitioner, Terry Andrews, to comply with a deposition duces tecum requiring him to attend a continued deposition and answer questions and produce records regarding Approximately three (3) years ago, Morrison filed suit against the Palm Beach County School Board and Terry Andrews alleging employment and gender discrimination. Morrison apparently served as assistant principal of a Palm Beach County high school during the 1989-1990 academic year, while Andrews held the position of principal at the same high school. Morrison claimed that Andrews sexually harassed her and discriminated against her, preparing incorrect employment evaluations, reprimands, write-ups and retaliations against her. Morrison sought damages for, among other things, emotional and psychological injury.

his drug usage and mental health treatment. The order also imposed sanctions against counsel. Petitioners, Palm Beach County School Board and Terry Andrews, filed an emergency petition for writ of certiorari, and on March 17, 1993, by unpublished order, this court granted the petition and quashed the trial court's order insofar as it compelled deposition testimony and disclosure of medical records not previously disclosed and not the subject of Andrews' February 17, 1993, written waiver regarding his mental health treatment. We issue this opinion to explain our reasons for granting the petition for writ of certiorari.

The School Board and Andrews answered the complaint, raising as an affirmative defense that they were entitled to immunity because their actions as to Morrison had been "reasonable, in good faith, and based on reasonable grounds of their legality." Morrison has recently raised the contention, after learning that Andrews has undergone psychotherapy and taken psychiatric prescription drugs, that Andrews' mental illness and reaction to medications caused him to act illogically, unreasonably, and to improperly perceive her actions in the performance of her duties as assistant principal.

Early in 1992, Morrison propounded interrogatories to Andrews, asking him to comment regarding his medical background, including any psychotherapy and medications taken. On March 5, 1992, Andrews filed objections to those interrogatories on the ground that they were irrelevant, not likely to lead to the discovery of admissible evidence, and solely for the purposes of harassment. The objections did not raise the psychotherapist-patient privilege; however, the School Board and Andrews contend that they raised the privilege at a hearing on Morrison's motion to compel, but that the hearing was unreported.

Evidently, a "mini-trial" was held in the case on September 29 through 30, 1992, at which Andrews testified. Subsequently, at Andrews' deposition on December 23, 1992, he testified that he had not, at the time of the mini-trial, been taking any medications. He also testified that he was not taking any medications at the time of the deposition and he could not remember when he last took any medication regularly. When asked the reason for his last having regularly taken any medication, and whether he had ever taken the medication Prozac, Andrews' attorney objected, instructed him not to answer, and stated that the only relevant time period was the 1989-1990 academic year, the time period involved in Morrison's complaint. Andrews' attorney did not object on the basis of the psychotherapist-patient privilege. Andrews subsequently testified that he did not take any medications during the time periods when Morrison worked at the high school. He also stated that he was not taking Prozac on or after July 1, 1989.

Morrison then served trial subpoenas duces tecum on Andrews' health insurance carrier, medical care providers and pharmacies. From the produced documents, Morrison learned that in January, 1993, Andrews had received psychotherapy from Dr. Mary Jo Thomas. She also learned that he had filled prescriptions for Prozac on March 17, 1991, and April 16, 1991, and that he had filled prescriptions for other medications in March of 1992.

On February 5, 1993, Morrison served a subpoena for deposition duces tecum on Andrews, asking him to appear for a continuation of his deposition and to bring with him medical files and insurance records On February 16, 1993, the parties appeared before the court for a hearing on several motions, during which they discussed the propriety of deposing both Dr. Thomas and Andrews about Andrews' psychotherapy and medications. Morrison argued that Andrews' entire mental health history was in issue because: 1) Andrews had falsely testified at the mini-trial and at his deposition that he had not taken psychiatric medications; 2) at trial, the jury would need to evaluate Andrews' credibility and ability to remember; and 3) the medications Andrews took may have had side effects that affected his interaction with Morrison. Counsel for the School Board and Andrews argued that the only time period during which Andrews' mental condition was relevant was the 1989-1990 academic year, and that Andrews had not lied during his previous testimony, rather that testimony needed clarification. Counsel admitted that there was evidence that Andrews had used psychiatric medications before and after the time frame of the relevant academic year. At one point during the hearing, the trial judge stated that the doctor might claim a privilege if she were deposed.

from May 20, 1988, through the current date. The School Board and Andrews filed a motion for protective order to prevent the continued deposition, on the ground that the court had already ruled that discovery was completed in the case, and Morrison's "continued harassment of this Defendant and trying to make public this Defendant's medical and psychological history is outrageous...." The motion for protective order did not expressly raise the psychotherapist-patient privilege.

Ultimately, the court ruled that Morrison would be permitted to depose Dr. Thomas, and that if Andrews was not willing to sign a release for Dr. Thomas to testify, the court would order him to do so. Accordingly, the court granted Morrison's ore tenus motion to compel the doctor to appear for a deposition.

On February 17, 1992, Andrews executed a written "authorization to Furnish Reports and Disclose Professional Information" to Dr. Thomas, stating that the doctor was authorized to testify at deposition as to the treatment and medication Andrews received during the period from July 1, 1989 through June 30, 1990. The authorization included a statement that "[t]his authorization is subject to objections and claims of privilege, which may be appropriate. Further, this authorization and waiver of psychotherapist-patient privilege is limited to testimony during this deposition only." On February 23, 1993, Dr. Thomas was deposed, however she refused to discuss any time period other than July 1, 1989, through June 30, 1990.

On February 24, 1993, a continuation of Andrews' deposition was held, but he refused, on instructions of his counsel, to answer the question of whether he was on any medications that day. Morrison's counsel terminated the deposition and filed an emergency motion to compel Andrews to comply with the subpoena duces tecum and for sanctions, contending that Andrews was intentionally refusing to comply with the trial court's February 16, 1993, order requiring him to furnish information about his mental health history.

On March 1, 1993, the trial court conducted a hearing on Morrison's emergency motion to compel. At that hearing, the School Board and Andrews argued that information about any time period other than July 1, 1989, through June 30, 1990, was irrelevant. The School Board and Andrews also asserted the psychotherapist-patient privilege....