*1 On May 13, 2022, the Court entered an order granting in part defendants Samaritan Health Services, Inc., Good Samaritan Hospital Corvallis (“Good Sam”), and Dr. Luis R. Vela's (together, the “Samaritan Defendants”) motion to compel plaintiffs Dr. Erik Natkin, DO (“Dr. Natkin”) and Dr. Erik Natkin, DO PC (together, “Plaintiffs”) to produce additional discovery. However, the Court allowed the parties to submit supplemental briefing on whether Dr. Natkin waived the psychotherapist-patient privilege by alleging emotional distress damages. Both the Samaritan Defendants and Plaintiffs filed supplemental briefs. (See ECF Nos. 241, 245.) For the reasons discussed herein, the Court grants the Samaritan Defendants’ motion to compel Dr. Natkin's medical records.

Dr. Natkin was an orthopedic surgery resident at Good Sam until the residency program suspended and ultimately terminated Dr. Natkin during his fourth year of residency. Plaintiffs allege that the Samaritan Defendants failed to provide Dr. Natkin with appropriate due process protections or fair procedures prior to his suspension and termination, and further allege breach of his employment contract, breach of the covenant of good faith and fair dealing, wrongful termination, intentional interference with contract, and defamation. (See Op. & Order at 35-36, ECF No. 194.) Plaintiffs seek $51 million in damages for “pain and suffering,” as well as $10.153 million for lost income and $100 million in punitive damages. (Sec. Am. Compl. at 209, ECF No. 145.)

Federal Rule of Civil Procedure 26(b)(1) provides that parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1) (listing relevant proportionality factors). Courts construe Rule 26(b)(1) “broadly.” Roberts v. Legacy Meridian Park Hosp., Inc., 299 F.R.D. 669, 671 (D. Or. 2014). When a party fails to provide requested discovery that falls within the scope of Rule 26(b)(1), Rule 37(a)(1) allows the requesting party to “move for an order compelling disclosure or discovery.” Id. (quoting FED. R. CIV. P. 37(a)(1)).

I. REQUEST FOR PRODUCTION NO. 61 AND INTERROGATORY NO. 6

The Samaritan Defendants have requested Dr. Natkin's medical records from January 1, 2009 to the present (Req. Prod. No. 61), and the identity of any medical provider who has treated Dr. Natkin during the same timeframe and a description of the dates and type of treatment (Interrog. No. 6). The Samaritan Defendants argue that Dr. Natkin has waived any privilege protecting his medical information by alleging $51 million in emotional distress damages. Plaintiffs respond that they have not waived any privilege by claiming emotional distress damages, because they do “not allege unusually severe[ ] emotional distress damages” and they do not intend to offer medical records or testimony in support of emotional distress damages. The Court allowed supplemental briefing to address whether Oregon law applies to the issue of waiver, and if so, whether Dr. Natkin waived the psychotherapist-patient privilege under Oregon law by seeking emotional distress damages.

*2 The Samaritan Defendants correctly note that the Court has already held that Oregon law applies to Plaintiffs’ claims against the Samaritan Defendants in this litigation. (See Op. & Order at 7, ECF No. 143, “[T]he Court adopts ... [t]he F&R's recommendation to apply Oregon law to all of the Samaritan Defendants’ claims—both contract and tort”). Thus, Oregon law applies to determine whether Dr. Natkin waived the psychotherapist-patient privilege. See In re Cal. Pub. Utils. Comm'n, 892 F.2d 778, 781 (9th Cir. 1989) (“In diversity actions, questions of privilege are controlled by state law.” (citing FED. R. EVID. 501)); Luna Gaming-San Diego LLC v. Dorsey & Whitney, LLP, No. 06cv2804 BTM (WMc), 2010 WL 148713, at *1 (S.D. Cal. Jan. 11, 2010) (“The Court applies [state] privilege law to determine whether Plaintiff waived any privilege by filing this suit.” (citing FED. R. EVID. 501 and Cal. Pub. Utils. Comm'n, 892 F.2d at 781)).

As discussed in the Court's original order on the Samaritan Defendants’ motion to compel, U.S. District Judge Michael Simon recently recognized that “by statute, Oregon state law follows the broad approach to waiver for the psychotherapist-patient privilege.” Swan v. Miss Beau Monde, Inc., 566 F. Supp. 3d 1048, 1062 n.12 (D. Or. 2021) (citing OR. EVID. CODE 504(4)(b)(A), OR. REV. STAT. § 40.230(4)(b)(A), and Hodges v. Oak Tree Realtors, Inc., 363 Or. 601, 611-12 (2018)); see also OR. REV. STAT. § 40.230(4)(b)(A) (stating that the psychotherapist-patient privilege does not attach to communications relevant to an issue of the mental or emotional condition of the patient “[i]n any proceeding in which the patient relies upon the condition as an element of the patient's claim or defense”).

Applying Oregon's broad approach to waiver here, the Court finds that Dr. Natkin put his mental and emotional condition at issue by claiming emotional distress damages and he therefore waived the psychotherapist-patient privilege. See Baker v. English, 134 Or. App. 43, 46-47 (1995), aff'd in part, rev'd in part, 324 Or. 585 (1997) (“There is no dispute that [the plaintiff's] records, as they pertained to plaintiff himself, were not privileged, because plaintiff put his own psychological condition into question by claiming emotional distress damages.”); see also McClusky v. City of North Bend, 308 Or. App. 138, 139 n.1 (2020) (“According to plaintiff, because he only alleged ‘garden variety’ noneconomic damages, he has not waived patient privilege. Plaintiff acknowledges that the rule he advocates, although having a basis in federal law, has not been adopted in Oregon. Whatever the potential merits of the federal approach, we are bound by controlling precedent.” (citing Baker, 134 Or. App. at 46-47)); Wilson v. Decibels of Or., Inc., No. 1:16-cv-00855-CL, 2017 WL 393602, at *2 (D. Or. Jan. 26, 2017) (granting motion to compel production of medical records pertaining to the plaintiff's mental or emotional health, on the ground that “in Oregon, a plaintiff who puts his own psychological condition into question by claiming emotional distress damages waives such privileges; this is true even in cases where the plaintiff's emotional distress damages are garden variety, or in cases where the plaintiff does not intend to introduce medical records or expert testimony to support their emotional distress claims”); Hansen v. Combined Transp., Inc., No. 1:13-CV-01993-CL, 2014 WL 1873484, at *3 (D. Or. May 8, 2014) (“In this case, Plaintiff has alleged emotional distress damages; therefore he has waived his privilege under both Oregon and Washington state law. Therefore, any records of treatment, by any medical professional, for emotional or psychological matters shall be produced to the defendants[.]”).

*3 Plaintiffs rely on Schiele v. Montes, 231 Or. App. 43, 48-49 (2009), in which the Court of Appeals distinguished between “emotional condition” and “emotional distress” in the context of a claim for intentional infliction of emotional distress, but that case did not address waiver of the psychotherapist-patient privilege. In any event, Schiele pre-dates McClusky, in which the Oregon Court of Appeals clearly distinguishes the Oregon approach to waiver from the federal approach and finds that a plaintiff waives Oregon's psychotherapist-patient privilege even if he pleads only “garden variety” emotional distress damages. See McClusky, 308 Or. App. at 139 n.1.

Accordingly, the Court finds that Dr. Natkin waived the psychotherapist-patient privilege and therefore grants the Samaritan Defendants’ motion to compel. The Court orders Plaintiffs to produce Dr. Natkin's medical records from January 1, 2009 to the present that relate to Dr. Natkin's mental or emotional health,[1] and to identify any psychotherapist who has treated Dr. Natkin's mental or emotional health during the same timeframe and describe the dates and type of treatment.[2]

For these reasons, the Court GRANTS the Samaritan Defendants’ motion to compel a further response to their Request for Production No. 61 and Interrogatory No. 6. The Court is quite certain Plaintiffs will appeal this discovery order along with the Court's other recent discovery orders, and therefore the Court does not set a production deadline at this time.

DATED this 15th day of June, 2022.