In Paniagua v. Alameda County deals with federal court review of a state court action under 42 U.S.C. § 1983. Ms. Paniaqua claims that she conceived a child by rape and wanted to give it up for adoption but the rapist would not consent. While obtaining prenatal care, she befriended a women named Olivia and wanted to allow Olivia to adopt her child upon its birth. After the child was born an anonymous person reported the plaintiff's plans and child services workers seized the child and put it in foster care. This was on May 6, 2008. The plaintiff filed the under lying action on May 8, 2010 and missed the statute of limitations. Judge Claudia Wilken dismissed the case.
Schwenk v. Alameda is very similar. Ms. Schenk is suing the county for removing her children from her. She is claiming, among other things emotional distress damages. The county is fine with that claim and wants to compel discovery of the plaintiff's mental health records. Magistrate Elizabeth D. Laporte explained that there are two kinds of emotional distress damages. First, "garden variety damages" are those were the only testimony involved is that of lay witnesses. Second is the testimony that is explained by experts. The former does not compel discovery of mental health records the latter does.
See EEOC v. Lexus of Serramonte, (N.D. Cal. 2006) (“Ms. Wei's medical records are privileged by her right to privacy under California and federal law, and she brings only a ‘garden-variety’ claim for emotional distress damages and she does not intend to relyon those records or on testimony by a medical or psychiatric expert to support her claim. Consequently, she has not waived this privilege by putting her medical or mental condition atissue.”); see also Verma v. American Express, (N.D. Cal. May 26,2009) (concluding that even though the complaint had alleged extreme emotional distress, plaintiff agreed to limit her claims to allege no more than garden variety emotional distress and therefore had not waived her right to invoke the psychotherapist-patient and physician-patient privileges as to her communications with her doctor); see also Fitzgerald v. Cassil, (N.D. Cal.2003) (“Plaintiffs have stipulated that they will not affirmatively rely on any treating psychotherapist or other expert to prove the emotional distress damages suffered by Mr. Fitzgerald and Mr. Yu. The Court notes that, even if the middle ground approach to waiver ( i.e., 'garden-variety' emotional distress) were applied, no waiver would be found in the instant case.Plaintiffs have not pled a cause of action for intentional or negligent infliction of emotional distress and have not alleged a specific psychiatric injury or disorder or unusually severe emotional distress extraordinary in light of the allegations. Nor have they conceded their mental condition as revealed in the records sought is ‘in controversy.’”).Judge Laporte denied the motion to compel.
Sharkey v. O'Neal is a pro se prisoner lawsuit seeking damages relating to his parole placement. The plaintiff is confined to a wheelchair and was removed from his parole facility after Jessica's law passed. However, this was in 2008 and like Ms. Paniqua above the statute of limitations has passed. Judge Jeffery S. Whyte dismissed the case.
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