Doe v Haight (2020 NY Slip Op 20315)

Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for plaintiff.

Tobin and Dempf, LLP, Albany (Michael L. Costello of counsel), for Roman Catholic Diocese of Albany, defendant.

In this action brought pursuant to the New York State Child Victims Act^[FN1] plaintiff moves [*2]for an order (1) striking the answer of defendant Mark Haight for failure to respond to plaintiff's interrogatories and (2) striking the answer of defendant Roman Catholic Diocese of Albany for willful failure to provide discovery or, alternatively, compelling the Diocese to disclose certain documents.^[FN2] As to the first branch of plaintiff's motion, Mr. Haight has submitted his response to plaintiff's interrogatories and a letter explaining his inability to afford counsel to represent him herein. As to the second branch of the motion, the Diocese opposes and cross-moves for a protective order.

Plaintiff alleges that Mr. Haight, who at the time was a Roman Catholic priest employed by the Diocese, sexually abused him as a minor. He asserts a cause of action sounding in assault and battery against Mr. Haight and a cause of action for negligence against the Diocese. Mr. Haight generally denies the conduct alleged and the Diocese denies notice of Mr. Haight's alleged propensity for engaging in sexual misconduct with minors. The case is in the discovery phase of litigation.

Plaintiff's Interrogatories to Defendant Haight

Plaintiff asserts that Mr. Haight's answers to certain of his interrogatories are inadequate and that his answer should, therefore, be stricken. The questions and answers at issue, and the court's rulings regarding the same, are:

Question: Set forth the name of each and every individual with whom you have had illegal contact while they were under the age of 18.

Answer: Object, calls for a legal conclusion. Amended response, 02/19/2020: I have never been charged, nor do I have any criminal convictions.

Ruling: This interrogatory is improper in that it calls for a conclusion (see Itzkoff v Allstate Ins. Co., 59 AD2d 854 [1st Dept 1977]) and need not be answered.

Question: Set forth any counseling you have been provided with regard to psychiatric or psychological matters.

Answer: Object, based on medical privilege. Amended response, 02/19/2020: None other than provided by the R.C. Diocese of Albany.

Ruling: Mr. Haight must answer the question directly, rather than incorporate the Diocese's answer by reference.

Question: Set forth the names of priests from the Roman Catholic Diocese of Albany that you know who were sent to the Servants of the Paraclete for treatment, rehabilitation, or other service.

Answer: Object, based on invasion of privacy of third-party non-litigant. Amended [*3]response, 02/29/2020: Of the two priests I know were sent for evaluation, one is now deceased and the other I was told left the Diocese of Albany several decades ago.

Question: Set forth the information transmitted from the Roman Catholic Diocese of Albany as to your actions to the Servants of the Paraclete in Jemez Springs, New Mexico.

Answer: I have no such information. Amended response, 02/19/2020: I was not privy to nor provided with any transmitted information.

Question: Did you ever take any individuals under the age of 18 to your property in Thurman, New York?

Answer: Object, based on being prejudicial to my position in this liability action. Amended response, 02/19/2020: There were{**70 Misc 3d at 718} times, such as family reunions and seasonal gatherings when individuals under the age of 18 were present at the Farm property in Thurman, New York.

Ruling: The question asks whether Mr. Haight ever took individuals under the age of 18 to the property, not whether they "were present." It is a yes or no question, which Mr. Haight must answer in that manner.

Question: Set forth the reasons, as you understand them, for the Diocese terminating your services as a priest.

Answer: Object, based on being prejudicial to this liability action. Updated response, 02/19/2020: I was informed through the Personnel Office of the Diocese that certain allegations of impropriety were made with the Diocese.

Ruling: If Mr. Haight was provided by the Diocese with a more specific reason for his termination, then he must supplement his answer to provide the same.

Answer: Object, based on being prejudicial to this liability action. Amended response, 02/19/2020. Remains the same.

Ruling: This interrogatory is improper in that it calls for a conclusion (see Itzkoff v Allstate Ins. Co., 59 AD2d 854 [1st Dept 1977]) and need not be answered.

Plaintiff asserts that the Diocese, in response to his demand for disclosure of Mr. Haight's personnel file, improperly withheld medical and psychological records under claim of privilege. The Diocese has submitted the records to the court for in camera review and has provided a log detailing its privilege claim. No explanation is provided in the motion papers as to how the records came to be in Mr. Haight's personnel file; however, from a review of them it appears that they were generated because Mr. Haight, as a result of alleged sexual misbehavior, was referred by the Bishop to the Servants of the Paraclete for evaluation. After that evaluation the records were provided to the Bishop, for his consideration in making employment and assignment decisions.

The privilege asserted by the Diocese belongs, of course, to Mr. Haight, who has filed no opposition to this branch of plaintiff's motion. Although it has been held that certain{**70 Misc 3d at 719} custodians [*4]of medical records can assert privilege in order to protect a patient who is not a party to a proceeding (see Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130 [1983]), that is not the situation here. Rather, because Mr. Haight is a party to this action it is incumbent on him to assert any claim of privilege on his own behalf. He has failed to do so and the Diocese, which is not the beneficiary of any privilege at issue in this case, may not assert it for him.^[FN3] Accordingly, the documents withheld by the Diocese under claim of privilege must be disclosed to plaintiff.^[FN4]

Further, even if the Diocese were entitled to assert a claim of privilege with respect to the records contained in Mr. Haight's personnel file, plaintiff's motion would still be granted because a party asserting privilege has the burden of establishing it (see Koump v Smith, 25 NY2d 287 [1969]) and the Diocese has failed to do so. In Friel v Papa (87 AD3d 1108 [2d Dept 2011]), cited by the Diocese, the Court held that an employee's physician-patient privilege was not waived by virtue of his employer having obtained some of his medical records, because the authorization under which it did so had been very narrowly drawn. Here, the Diocese has not provided a copy of any authorization under which Mr. Haight's records were provided to it. Accordingly, even if the Diocese could assert privilege on Mr. Haight's behalf, despite his being a party to the action, it has not sustained its burden of proof on that issue.

The court would not, in any event, follow the rule set forth in Friel because it is contrary to case law from the Third Department, which is binding on this court. In State of New York v General Elec. Co. (201 AD2d 802 [3d Dept 1994]) the Court held that medical information provided to a patient's employer for use in making employee management decisions is not privileged. Similarly, in People v Hitchman (70 AD2d 695, 696 [3d Dept 1979]) the Court held that "defendant's submission to his supervisor of the doctor's statement, executed at defendant's request and containing a diagnosis of his condition, constituted a voluntary disclosure which destroyed the privilege." {**70 Misc 3d at 720}Applying the rule set forth in those cases, the court finds that any privilege associated with the records at issue herein was destroyed when Mr. Haight voluntarily provided them to his employer.

A similar rule has been followed elsewhere in New York State. In Matter of Farrow v Allen (194 AD2d 40, 44 [1st Dept 1993]) the Court held that "once a patient puts the information into the hands of a third party who is completely unconnected to his or her treatment and who is not subject to any privilege, it can no longer be considered a confidence and the privilege must be deemed to have been waived." Likewise, in People v Martinez (22 AD3d 318, 318 [1st Dept 2005]) the Court held that "[o]nce defendant waived that privilege for a particular purpose, the privilege was destroyed for all purposes, regardless of whether defendant had intended to limit his waiver." Although courts in some other states have adopted a rule similar to that in Friel (see e.g. Roman Catholic Diocese of Jackson v Morrison, 905 So 2d 1213 [Miss 2005]; In re Fortieth Statewide Investigating Grand Jury, 220 A3d 558[*5][Pa 2019]), the weight of authority holds otherwise. In C.J.C v Corporation of Catholic Bishop of Yakima (138 Wash 2d 699, 718, 985 P2d 262, 272 [1999]) the court held that a priest's mental health evaluations, required by and disclosed to the Diocese by which he was employed, were not privileged because they did not "originate in the confidence that they [would] not be disclosed." (Citations omitted.) Likewise, in In re The Clergy Cases I v Franciscan Friars of California, Inc. (188 Cal App 4th 1224, 1240 [2010]) the court held that the psychotherapist-patient privilege did not preclude disclosure of individual friars' psychotherapy reports because "voluntary disclosure of these records to the Franciscans for purposes that were not reasonably necessary for diagnosis and treatment operated as a waiver of the privilege irrespective of what the Franciscans may have told the Friars." Similar results were reached in Ford v Law (2002 WL 32139028 [Mass Super Ct, Nov. 25, 2002, No. 02-4550, 02-1296]), John Doe No. 13 v Diocese of Orlando (2011 WL 5061952 [Fla Cir Ct, Oct. 21, 2011, No. 2010-CA-015146-0]) and Niemann v Cooley (93 Ohio App 3d 81, 637 NE2d 943 [1994], disapproved of for other reasons in Walters v Enrichment Center of Wishing Well, Inc., 78 Ohio St 3d 118, 676 NE2d 890 [1997]). In the case at bar, by agreeing to allow the Bishop to review the records at issue, so as to convince him that he was fit to continue serving as a priest for the Diocese, Mr.{**70 Misc 3d at 721} Haight necessarily opened himself up to the possibility that those records would be used in a subsequent lawsuit challenging the propriety of the Bishop's decision. Certainly, there was no reasonable expectation of confidentiality. Moreover, because many of the records were not authored by a licensed physician, a licensed psychologist, or a licensed social worker they would not be privileged in any event (see CPLR 4504, 4507, 4508). Among these are a report to the Bishop by "(Very Rev.) Liam J. Hoare, s.P., Servant General, Executive Director of Therapeutic Programs," a "Spirituality Interview" conducted by "Rev. Raymond Mann O.F.M.," and a "Spirituality Profile" by "Very Rev. Wm. (Liam) Hoare, s.P., M.A." As to these documents, which appear at pages 148-157 of the records provided for in camera review, no privilege of any kind has been demonstrated to apply. For these reasons, plaintiff's motion to compel production of the documents withheld under claim of privilege is granted and the Diocese's cross motion for a protective order concerning the same is denied.

Finally, the Diocese seeks an order authorizing it to redact the identity of the complainants/victims in documents related to other claims against the Diocese for acts allegedly committed by Mr. Haight. Plaintiff has not argued that the requested redactions would be inappropriate or impair his ability to prepare his case for trial. Accordingly, the Diocese may redact the identity of those complainants/victims.

Therefore, it is ordered that Mr. Haight shall serve supplemental answers to interrogatories 6, 7, 9, and 12 within 30 days of service of a copy of this decision and order, with notice of entry; and it is further ordered that plaintiff's motion to compel production by the Diocese of the documents contained within Mr. Haight's personnel file is granted; and it is further ordered that the Diocese's cross motion for a protective order is granted to the extent that it may redact the identity of the complainants/victims in documents related to other claims against the Diocese for acts allegedly committed by Mr. Haight; and it is further ordered that any relief not specifically granted herein is denied.