Elaine Swanger v. Warrior Run School District , 659 F. App'x 120 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3627
_____________
ELAINE SWANGER; VICTOR SWANGER,
as Parents and Legal Guardians of BJS;
B. J. S.,
Appellants
v.
WARRIOR RUN SCHOOL DISTRICT; PATRICIA CROSS;
DOUGLAS BARENZETTI; TAMMY OSENGA;
CYNTHIA DEL GOTTO; DUANE MATTISON;
DIVERSIFIED TREATMENT ALTERNATIVES, INC.;
ALVIN WEAVER
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 4-11-cv-00894)
District Judge: Honorable Robert D. Mariani
Argued on July 13, 2016
BEFORE: SMITH, ROTH and RENDELL, Circuit Judges
(Opinion filed: August 31, 2016)
Amy R. Boring, Esquire
Joshua J. Cochran, Esquire (Argued)
Michael J. Zicolello, Esquire
Schemery Zicolello
333 Market Street
Williamsport, PA 17701
Counsel for Appellants
Rolf E. Knoll, Esquire (Argued)
Barry A. Kronthal, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17108
Michael R. Miller, Esquire
Margolis Edelstein
170 South Independence Mall West
The Curtis Center, Suite 400E
Philadelphia, PA 17106
Counsel for Appellees Warrior Run School District, Patricia
Cross, Douglas Bertanzetti, Tammy Osenga, Cynthia Del
Gotto
Donald H. Blackwell, II, Esquire (Argued)
William A. Hebe, Esquire
Spencer, Gleason, Hebe & Rague
17 Central Avenue
Wellsboro, PA 16901
Counsel for Appellee Duane Mattison
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Thomas E. Brenner, Esquire (Argued)
Goldberg Katzman, PC
4250 Crums Mill Road
P. O. Box 6691
Suite 301
Harrisburg, PA 17112
Counsel for Appellees Diversified Treatment Alternatives,
Inc., Alvin Weaver
O P I N I O N*
RENDELL, Circuit Judge:
In March 2011, Duane Mattison molested B.J.S., a mentally challenged young
girl, as the two sat in a special education class at Warrior Run High School. Mattison had
a long, troubled history of sexual misconduct, both as a victim and as an aggressor, and
had been undergoing treatment with Diversified Treatment Alternatives (DTA), a
nonprofit organization that provides psychiatric treatment to troubled male youths.
Following the assault, B.J.S.’s parents, Elaine and Victor Swanger, sued Warrior Run
School District, DTA, and several individuals associated with these organizations,
alleging they knew that Mattison was a sexual predator and therefore knowingly placed
B.J.S. in danger, and asserting various claims under both state and federal law. The
District Court granted summary judgment against the Swangers on all counts, but we will
not address the substantive merits of these rulings, as the District Court erred when it
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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denied the Swangers’ earlier motion to review in camera approximately 1,500 pages of
documents from Mattison’s DTA treatment file to determine which ones were privileged.
We will thus vacate the District Court’s order denying this motion, as well as its
subsequent summary judgment orders, and remand for further proceedings consistent
with this opinion.
I.
In 2007, after repeated incidents of sexual misconduct, Mattison began treatment
with DTA. During this process, he admitted to a long history of sexual assault. In
February 2009, he graduated from the DTA program and enrolled at Warrior Run High
School as a sophomore in the school’s special education program. While attending
Warrior Run, Mattison was still supervised and treated by DTA. Alvin Weaver, a
counselor at DTA, was the primary individual in charge of Mattison’s treatment.
In the fall of 2009, during his junior year at Warrior Run, DTA pulled Mattison
from school “because of concerns about his potential to act out sexually.” App. 1225.
Mattison had apparently engaged in “sexual contact with a chicken” at his foster home,
id., compelling DTA to feel that “it would be safer for everyone if [Mattison] was at the
Alternative Education program for the rest of 11th grade,” App. 1222. Mattison returned
to Warrior Run in the fall of 2010 after a period during which he did not act out sexually.
In March 2011, Mattison assaulted B.J.S. as they sat in Cynthia Del Gotto’s
English class. Another student in the class reported to Del Gotto that he had seen
Mattison molest B.J.S. and had heard Mattison ask her for oral sex. Douglas Bertanzetti,
the assistant principal who was the first school administrator contacted, informed the
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Swangers and Alvin Weaver at DTA of what had occurred. Soon thereafter, the Swangers
reported the incident to the police, and Mattison ultimately pled guilty to indecent assault
and nolo contendere to indecent exposure.
In May 2011, the Swangers, as parents and guardians of B.J.S., sued Warrior Run
School District, DTA, and the following individuals: principal Patricia Cross; assistant
principal Douglas Bertanzetti; teachers Cynthia Del Gotto and Tammy Osenga; and
Alvin Weaver of DTA. They claimed that these defendants, in violation of state and
federal law, knew that Mattison was a sexual predator but still placed him in a position in
which he could harm B.J.S. Against Warrior Run School District, they claimed violations
of § 504 of the Rehabilitation Act and Title IX of the Education Amendments of 1972.
Against Cross, Bertanzetti, Del Gotto, and Osenga, they claimed a violation of B.J.S.’s
substantive due process rights via 42 U.S.C. § 1983. Against DTA and Weaver, they also
claimed a violation of B.J.S.’s substantive due process rights, as well as negligence. In
September 2015, the District Court granted summary judgment against the Swangers on
all counts, mainly concluding that they had not shown that the defendants knew or should
have known that Mattison posed a danger to B.J.S.
The District Court had previously denied the Swangers’ motion asking it to review
and order the production of numerous documents from Mattison’s DTA treatment file. In
2013, DTA had produced a privilege log to the Swangers that listed as privileged
approximately 1,500 pages of documents from Mattison’s DTA file. These documents
included psychological and psychiatric evaluations, individual treatment plans, discharge
summaries, quarterly case reports, and various notes concerning Mattison’s treatment.
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See App. 319–21. Seeking these documents, the Swangers asserted to the District Court
that they “are relevant to establish what was known about Defendant Mattison’s history
of unwanted sexual behaviors, by whom, and to whom information was provided.” App.
312. According to the Swangers, these documents “provide a crucial link in the evidence
against DTA and the Warrior Run Defendants.” Swangers’ Br. 17.
In 2014, the District Court denied the Swangers’ motion for an in camera review
of the documents. In doing so, it surmised that at least some of the documents were
privileged under the federal psychotherapist-patient privilege. But it then concluded that,
to the extent that any of these documents were not protected from disclosure under this
privilege, they were nevertheless all “protected from disclosure by a different privilege,
specifically, the Mental Health Procedures Act,” a Pennsylvania state law that provides,
broadly, that “‘[a]ll documents concerning persons in treatment shall be kept confidential
and, without the person’s written consent, may not be released or their contents disclosed
to anyone.’” App. 839 (quoting 50 Pa. Cons. Stat. § 7111(a)). We focus our review on the
Swangers’ argument that the District Court erred by applying the MHPA, a Pennsylvania
state privilege law, to this case that involves both federal and state claims.
II.
But before we address that argument, we will consider the Swangers’ contention
that the District Court erred in rejecting their argument that Mattison waived any
confidentiality privileges potentially applicable to these documents. If Mattison did in
fact waive these privileges, then we need not even consider the Swangers’ argument that
the District Court erred in its MHPA ruling.
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Mattison did not explicitly waive any privileges, but the Swangers argue that he
did so implicitly—by testifying at his deposition about his past treatment for sexual
misconduct, by failing to assert any privileges during his deposition or criminal hearing,
and by disclosing ninety-four pages of the DTA documents during discovery.
We disagree. Once a district court determines that there was insufficient evidence
to show waiver of a privilege, “we review its judgment for abuse of discretion.” In re
Impounded, 241 F.3d 308, 318 (3d Cir. 2001). Here, the District Court considered each of
the Swangers’ waiver arguments and reasonably rejected them. For example, it reviewed
Mattison’s deposition and determined that his testimony regarding his treatment at DTA
was “minimal and superficial at best.” App. 843. It also determined, for instance, that
Mattison was not presented with a situation at his deposition that would have required
him to invoke any privileges. We thus find no abuse of discretion in the District Court’s
determination that Mattison did not waive any privileges.
III.
We will next address the Swangers’ argument that the District Court erred by
concluding that the MHPA, a state law, protected from disclosure all of the DTA
documents at issue. With this ruling, the District Court, in effect, concluded that the
MHPA’s broad confidentiality protections should be adopted as a federal common law
privilege in this case. Our review is therefore de novo. See In re Sealed Case, 148 F.3d
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1073, 1075 (D.C. Cir. 1998) (“Because the recognition of a testimonial privilege is a
legal issue, our review is de novo.”).1
Under Federal Rule of Evidence 501, which governs all evidentiary privileges
asserted in federal court, “federal privileges apply to federal law claims, and state
privileges apply to claims arising under state law.” Pearson v. Miller, 211 F.3d 57, 66 (3d
Cir. 2000). However, in cases involving both federal and state claims, “especially where,
as here, the evidence in dispute is apparently relevant to both the state and the federal
claims,” “Rule 501 directs us to apply federal privilege law.” Id.Federal privilege law has developed over the years as a matter of federal common
law. See Fed. R. Evid. 501 (“The common law—as interpreted by United States courts in
the light of reason and experience—governs a claim of privilege unless any of the
following provides otherwise: the United States Constitution; a federal statute; or rules
prescribed by the Supreme Court.”). Indeed, Rule 501 “reflect[s] the view that the
recognition of a privilege based on a confidential relationship . . . should be determined
on a case-by-case basis,” and thus “direct[s] federal courts to continue the evolutionary
development of testimonial privileges.” Jaffee v. Redmond, 518 U.S. 1, 8–9 (1996)
(internal quotation marks omitted). In Jaffee, for example, the Supreme Court recognized
1
The Swangers failed to raise their argument regarding the MHPA to the District Court.
But we will nevertheless consider this legal issue on appeal because the District Court’s
adoption of the MHPA kept all of the documents from view, which may have wrongfully
deprived the Swangers of the opportunity to prove their case with a full record and, as we
note below, runs counter to the federal policy of open disclosure. See Loretangeli v.
Critelli, 853 F.2d 186, 189 n.5 (3d Cir. 1988) (“This court may consider a pure question
of law even if not raised below where refusal to reach the issue would result in a
miscarriage of justice or where the issue's resolution is of public importance.”).
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the psychotherapist-patient privilege as a part of federal common law, holding that
“confidential communications between a licensed psychotherapist and her patients in the
course of diagnosis are protected from compelled disclosure under Rule 501.” Id. at 15.
Federal courts are reluctant to establish new evidentiary privileges. “For more than
three centuries it has now been recognized as a fundamental maxim that the public . . .
has a right to every man’s evidence,” and so “[w]hen we come to examine the various
claims of exemption, we start with the primary assumption that there is a general duty to
give what testimony one is capable of giving, and that any exemptions which may exist
are distinctly exceptional.” Id. (internal quotation marks omitted). Thus, “[t]he general
test to be applied in assessing privilege candidates is whether such a privilege ‘promotes
sufficiently important interests to outweigh the need for probative evidence.’” Pearson,
211 F.3d at 67 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)).
“The case for recognizing a particular federal privilege is stronger, however,
where the information sought is protected by a state privilege.” Id. The Supreme Court
has consistently “observed that the policy decisions of the States bear on the question
whether federal courts should recognize a new privilege.” Jaffee, 518 U.S. at 12–13
(citing Trammel, 445 U.S. at 48–50; United States v. Gillock, 445 U.S. 360, 368 n.8
(1980)). Accordingly, “a federal court ‘may see fit for special reasons to give the law of a
particular state highly persuasive or even controlling effect, but in the last analysis its
decision turns upon the law of the United States, not that of any state.” Pearson, 211 F.3d
at 67 (quoting Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979)).
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We have thus formulated a test for whether to recognize “federal law privileges
that amount to parallels of . . . state law privileges.” Id. at 69. A federal court must
determine, “granting due respect to Pennsylvania’s protections, whether a privilege of the
kind sought . . . promotes sufficiently important interests to outweigh the need for
probative evidence, where the need for probative evidence is viewed as a very weighty
consideration indeed—to the extent that only the strongest considerations on the other
side of the scale are capable of outweighing it.” Id. (internal citation and quotation marks
omitted).
The District Court never engaged in this assessment; it simply concluded that the
MHPA’s confidentiality protections applied. While the MHPA and the federal
psychotherapist-patient privilege overlap to the extent that they both protect “confidential
communications between a licensed psychotherapist and her patients in the course of
diagnosis,” Jaffee, 518 U.S. at 1, the MHPA “creates a much broader protection,
forbidding the disclosure of any document ‘concerning persons in treatment’ regardless
of the contents of that document,” Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 465
(3d Cir. 1996). The question, then, is whether federal courts should recognize the
MHPA’s broader protections as a federal privilege—that is, whether these broader
protections “promote[] sufficiently important interests” so as “to outweigh the need for
probative evidence, where the need for probative evidence is viewed as a very weighty
consideration indeed.” Pearson, 211 F.3d at 69 (internal quotation marks and citation
omitted). Because the District Court never reasoned through this question, we will vacate
its ruling and remand for it to apply the Pearson test to the MHPA issue.
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IV.
For these reasons, we will vacate the District Court’s December 31, 2014, order
denying the Swangers’ motion for an in camera review of the documents in Mattison’s
DTA file, as well as its subsequent summary judgment orders, and remand for it to apply
the Pearson test to the MHPA issue. If it declines to recognize the MHPA as a federal
common law privilege, it should review the DTA documents in camera to determine the
extent to which they are protected under the narrower federal psychotherapist-patient
privilege.
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