      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

ALVIN KENNEDY and          )
ELIEZER FELICIANO,         )                            Supreme Court No. S-14762
                           )
              Petitioners, )                            Superior Court No. 3AN-10-08865 CI
                           )
    v.	                    )                            OPINION
                           )
MUNICIPALITY OF ANCHORAGE, )                            No. 6809 - August 16, 2013
                           )
              Respondent.	 )

                           )


              Petition for Review from the Superior Court of the State of
              Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner,
              Judge.

              Appearances:     Kenneth W. Legacki, Anchorage, for
              Petitioners. Linda J. Johnson, Clapp, Peterson, Tiemessen,
              Thorsness & Johnson, LLC, Anchorage, Todd K. Sherwood,
              Assistant Municipal Attorney, and Dennis A. Wheeler,
              Municipal Attorney, Anchorage, for Respondent. Jeffrey J.
              Barber, B arber & Banker, LLC, Anchorage, for Amicus
              Curiae Alaska Association for Justice.

              Before: Fabe, Chief Justice, Winfree, Maassen, and Bolger,
              Justices. [Stowers, Justice, not participating.]

              BOLGER, Justice.

I.    INTRODUCTION
              Two former police officers brought claims against the Municipality of
Anchorage for racial discrimination, alleging a hostile work environment in violation of
state law. The officers claimed damages for mental anguish, and the Municipality sought
discovery concerning the nature of their mental anguish claims. But the officers refused
to comply with these discovery requests, invoking the physician and psychotherapist
privilege. The Municipality moved for an order to compel the officers to sign releases
authorizing the disclosure of medical, pharmacy, and psychological counseling records,
which the superior court granted. The officers then petitioned this court for review of
the order. Upon review, we conclude that the assertion of garden-variety mental anguish
claims in an employment discrimination case does not automatically waive the physician
and psychotherapist privilege.
II.    FACTS AND PROCEEDINGS
       A.     The Officers’ Claims Under AS 18.80.220
              Alvin Kennedy and Eliezer Feliciano (the officers) were police officers with
the Anchorage Police Department (APD) who sued the Municipality of Anchorage (the
Municipality) for racial discrimination and retaliation. Kennedy is African-American,
and Feliciano is Hispanic. They alleged that the Municipality violated state law because
APD created a hostile work environment for the officers, in which they were treated
disparately because of their races.1 The alleged discrimination includes racially-profiled
traffic stops, disparate discipline for questionable investigative searches, hostile remarks
and actions concerning the undercover clothing worn by minority officers, reassignment
from other units, denial of performance pay increases and promotions, and a retaliatory
police investigation. Both claim damages for mental anguish.
              In response to discovery requests from the Municipality, each officer stated
how the alleged discrimination had affected him. Kennedy reported that he was “very



       1
              See AS 18.80.220(a)(1) (prohibiting employment discrimination on the
basis of race).

                                            -2-                                       6809
angry, disappointed and occasionally sad.” He stated that his “trust levels [were] very
low” and that he was “discouraged and disappointed” by the actions of the Municipality
and APD.
              Feliciano stated that he was “disturbed” by the alleged discrimination. He
elaborated:
              The conduct of the APD has given me the feeling that
              everything I have done throughout my career has been for
              naught. I feel sad, resulting in lower activity and feeling
              anxious, empty, hopeless, helpless, worthless, guilty, irritable
              and restless. I have experienced insomnia, fatigue, loss of
              energy, aches and pains, and a strained relationship with my
              wife and children.
              Both officers alleged that they had to retire because of the discrimination
they suffered at APD. Both asserted that they had not sought any medical treatment or
counseling, nor taken any medication related to their mental anguish claims.
       B.     Proceedings Below
              The officers filed a complaint in June 2010 alleging employment
discrimination. They amended this complaint in June 2011 to include claims for
retaliation and mental anguish. The Municipality sought discovery, requesting that the
officers (1) identify all medical professionals, counselors, and pharmacies that had
provided them services since 2005; (2) produce copies of all medical and counseling
records since 2005; and (3) sign releases for the same information. The officers refused
to comply with these requests.
              In March 2012 the Municipality filed a motion to compel the officers to
sign releases for medical, counseling, and pharmacy records. The Municipality argued
that it was entitled to discovery of the officers’ medical records because the officers had
put their medical histories at issue by seeking damages for mental anguish. The
Municipality contended that such records were necessary to determine whether there was

                                            -3-                                      6809

any medical evidence of mental anguish and whether the officers’ alleged mental anguish
was caused by other factors unrelated to their discrimination claims.
             The officers opposed the motion to compel. They asserted that they had not
received any treatment or medication in response to the alleged racial discrimination, and
they would not rely on expert medical testimony to establish damages. They argued that
because they merely asserted garden-variety mental anguish claims, there was no waiver
of the physician and psychotherapist privilege.        The superior court granted the
Municipality’s motion to compel and ordered the officers to provide the requested
medical releases.
             We granted review, directing the parties to brief the following issues:
(1) Should the assertion of garden-variety mental anguish claims in employment
discrimination cases automatically waive a claimant’s physician and psychotherapist
privilege? (2) If not, (a) How should garden-variety claims of mental anguish be
defined? (b) Are the mental anguish claims of each of the officers in this case garden-
variety claims? (c) What are the proof limitations that should be imposed on claims for
mental anguish where there is no waiver of the physician and psychotherapist privilege?
III.   STANDARD OF REVIEW
             Whether the assertion of garden-variety mental anguish claims
automatically waives the physician and psychotherapist privilege is a question of law.2
We exercise our independent judgment on questions of law, adopting “the rule of law
that is most persuasive in light of precedent, reason and policy.”3


       2
            See Mathis v. Hilderbrand, 416 P.2d 8, 8-10 (Alaska 1966) (reviewing de
novo whether plaintiff waived the physician-patient privilege by filing suit for personal
injury).
       3
             Cf. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988) (quoting
                                                                  (continued...)

                                           -4-                                      6809

IV.	   DISCUSSION
       A.	   Mental Anguish Damages Are Available For Violations Of
             AS 18.80.220.
             Alaska Statute 18.80.220(a)(1) prohibits racial discrimination in hiring,
promotion, compensation, and other terms, conditions, or privileges of employment. In
Johnson v. Alaska State Department of Fish & Game, we held that damages for mental
anguish claims are available for violations of this statute.4 We explained that such
damages must be limited to “actual damages — that is, to all those damages directly and
naturally resulting, in the ordinary course of events, from the injury in question.”5 We
held that while such damages should not be presumed, “[a] complainant’s own testimony
may establish the fact and the quantum of damages.”6
             The Municipality suggests that our holding in Johnson supports a finding
of waiver of the privilege in this case. It contends that applying the privilege would
essentially exempt the officers from the requirement to prove mental anguish damages.
This argument is not persuasive. Johnson holds that a complainant’s own testimony may




       3
             (...continued)
Brooks v. Brooks, 733 P.2d 1044, 1055 (Alaska 1987)) (citing Walsh v. Emerick, 611
P.2d 28, 30 (Alaska 1980)).
       4
             836 P.2d 896, 914 (Alaska 1991) (construing AS 22.10.020(i) to determine
the remedies available for violations of AS 18.80).
       5
             Id. at 915 (quoting Mitchell v. Seaboard Sys. R.R., 883 F.2d 451, 453 (6th
Cir. 1989)) (internal quotation marks omitted) (citing Brewster v. Martin Marietta
Aluminum Sales, Inc., 378 N.W.2d 558, 569 (Mich. App. 1985)).
       6
            Id. (citing Cullen v. Nassau Cnty. Civil Serv. Comm’n, 425 N.E.2d 858, 861
(N.Y. 1981)).

                                          -5-	                                    6809

establish the fact and amount of damages; it did not mandate that such testimony must
be supported by medical records or expert testimony.7
      B.	    The Assertion Of Garden-Variety Mental Anguish Claims In A
             Discrimination Case Does Not Automatically Waive A Claimant’s
             Physician And Psychotherapist Privilege.
             1.	    The physician and psychotherapist privilege
             As a general matter, the Municipality is entitled to discover any relevant,
unprivileged information.8     The physician and psychotherapist privilege covers
“confidential communications made for the purpose of diagnosis or treatment of the
patient’s physical, mental or emotional conditions.”9 But this privilege does not apply
“to communications relevant to the physical, mental or emotional condition of the patient




      7
               See id. To the extent the Municipality makes a sufficiency-of-the-evidence
argument, such an argument is misplaced: Because the parties have not yet presented
evidence of their mental anguish at trial, a determination of whether such evidence is
sufficient to support an award cannot yet be made.
      8	
             Alaska Civil Rule 26(b)(1) provides:
             Parties may obtain discovery regarding any matter, not
             privileged which is relevant to the subject matter involved in
             the pending action, whether it relates to the claim or defense
             of the party seeking discovery or to the claim or defense of
             any other party, including the existence, description, nature,
             custody, condition and location of any books, documents, or
             other tangible things and the identity and location of persons
             having knowledge of any discoverable matter. The
             information sought need not be admissible at the trial if the
             information sought appears reasonably calculated to lead to
             the discovery of admissible evidence.
      9
             Alaska R. Evid. 504(b).

                                           -6-	                                    6809

in any proceeding in which the condition of the patient is an element of the claim or
defense of the patient.”10
              The critical question is whether the officers have placed their mental or
emotional conditions at issue by asserting a claim for mental anguish damages and
thereby waived the privilege.11 The Municipality argues that the officers’ request for
mental anguish damages has put their mental state at issue and suggests this request
automatically waives the privilege. The officers respond that they have asserted claims
for only the sort of mental anguish that any normal, well-adjusted person would
experience under the circumstances, and they consequently urge this court to hold that
the assertion of such garden-variety mental anguish claims does not waive the privilege.
The officers further contend that their medical records are not relevant because they did
not seek medical treatment related to their mental anguish claims and will not rely on any
expert testimony or medical records.
              2.     The broad approach to waiver
              Other courts have not taken a consistent approach to whether mental
anguish claims waive the physician and psychotherapist privilege. Courts taking a broad
approach hold that the privilege12 is waived whenever the patient alleges emotional



       10
              Alaska R. Evid. 504(d)(1).
       11
              Cf. Trans-World Invs. v. Drobny, 554 P.2d 1148, 1151 (Alaska 1976)
(“[W]e hold that the filing of a personal injury action waives the physician-patient
privilege as to all information concerning the health and medical history relevant to the
matters which the plaintiff has put in issue.”) (citing 8 JOHN H. W IGMORE , EVIDENCE
§ 2389 (McNaughton rev. 1961); Collins v. Blair, 268 N.E.2d 95 (Ind. 1971)).
       12
             Although this is a question of first impression in Alaska, other courts have
considered the same issue under analogous provisions of law. We therefore look to
authority from other jurisdictions in interpreting Alaska law.

                                           -7-                                      6809

distress.13 The rationale behind this broad approach to waiver is rooted in fairness.14
That is, if a plaintiff claims emotional distress, then a defendant must be able to challenge
that claim; for example, psychiatric records may point to sources of emotional distress
other than the defendant’s conduct.15




       13
              See Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 136 (E.D. Pa. 2001)
(holding that plaintiffs alleging a violation of Title VII of the Civil Rights Act of 1964
waived the psychotherapist privilege by alleging emotional distress); Doe v. City of
Chula Vista, 196 F.R.D. 562, 568-69 (S.D. Cal. 1999) (holding that plaintiff in
employment discrimination case seeking to recover $1,000,000 for severe emotional
distress relied on her emotional condition as an element of her claim and waived the
privilege); Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997)
(holding plaintiff in Americans with Disabilities Act suit who alleged defendant did not
accommodate her depression waived psychotherapist privilege).
       14
              See, e.g., EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D.
Cal. 2009) (stating that defendant “should be able to determine whether [p]laintiff’s
emotional state may have been effected by something other than [d]efendant’s alleged
actions”); Doe, 196 F.R.D. at 569 (“Defendants must be free to test the truth of
[plaintiff’s] contention that she is emotionally upset because of the defendants’
conduct.”); Sarko, 170 F.R.D. at 130 (“[W]e agree that allowing a plaintiff to hide []
behind a claim of privilege when that condition is placed directly at issue in a case would
simply be contrary to the most basic sense of fairness and justice.”) (quoting Premack
v. J.C.J. Ogar, Inc., 148 F.R.D. 140, 145 (E.D. Pa. 1993)) (internal quotations marks
omitted).
       15
              See Fitzgerald v. Cassil, 216 F.R.D. 632, 636-38 (N.D. Cal. 2003)
(examining rationales behind different approaches to waiver); cf. Dudley v. Stevens, 338
S.W.3d 774, 777 (Ky. 2011), modified (June 16, 2011) (holding that claim for garden-
variety emotional damages in personal injury action waived privilege because “it would
be fundamentally unfair to permit [plaintiff] to allege and prove mental anguish caused
by the negligence while denying [defendants] from reviewing her mental health records
for the possibility of pre-existing mental conditions”).

                                            -8-                                        6809

              In one of the cases primarily relied upon by the Municipality, Hyde v.
University of Michigan Regents,16 the Michigan Court of Appeals concluded that a
plaintiff claiming any type of emotional distress damages in connection with his
employment discrimination claim had waived the privilege.17 The court found that any
allegation of emotional distress — including “pain and suffering, mental distress, hurt
feelings, embarrassment, and so forth” — automatically waived the privilege; and it held
that if the plaintiff wanted to avoid waiver he must withdraw any claim for noneconomic
damages.18 But Hyde is distinguishable because it is based in part on a provision in the
Michigan civil rules, providing that if a party claims a medical privilege in discovery, he
may not thereafter introduce any evidence relating to the condition for which he has
claimed the privilege.19 Moreover, the result in Hyde has been criticized by another
Michigan appellate court for being contrary to the majority of the courts that have
addressed this issue.20


       16
              575 N.W.2d 36 (Mich. App. 1997).
       17
              Id. at 38.
       18
              Id. at 42.
       19
             See id. Michigan Court Rule 2.314(B)(2) provides: “[I]f a party asserts that
the medical information is subject to a privilege and the assertion has the effect of
preventing discovery of medical information otherwise discoverable under MCR
2.302(B), the party may not thereafter present or introduce any physical, documentary,
or testimonial evidence relating to the party’s medical history or mental or physical
condition.”
      20
              See LeGendre v. Monroe Cnty., 600 N.W.2d 78, 87-90 (Mich. App. 1999)
(disagreeing with result in Hyde because it contravenes rule that the “in controversy”
requirement is not met “by mere conclusory allegations of the pleadings or by mere
relevance to the case, and because it is contrary to the results reached by the majority of
courts that have addressed the issue”); see also Mara Kent & Thomas Kent, Michigan
                                                                             (continued...)

                                            -9-                                      6809

             Notably, many of the decisions applying a broad view of waiver involve
circumstances that placed the plaintiff’s mental condition more directly at issue than the
simple assertion of garden-variety mental anguish. These circumstances include: a
plaintiff who claimed her employer violated the Americans with Disabilities Act by
failing to accommodate her depression,21 a plaintiff who sought $1,000,000 for severe
emotional distress,22 and plaintiffs who had received treatment for their emotional
distress.23 These allegations of diagnosable conditions, severe emotional distress, and
conditions requiring psychiatric treatment are more serious than mere garden-variety
claims; as such, we do not find these cases to be particularly persuasive on the issue
before us.
             3.     A narrower approach to waiver
             Some courts hold that the physician and psychotherapist privilege is waived
only when the plaintiff introduces the privileged communications themselves as




      20
             (...continued)
Civil Rights Claimants: Should They Be Required to Give Up Their Physician-Patient
Privilege When Alleging Garden-Variety Emotional Distress?, 77 U. D ET . M ERCY L.
REV . 479, 479, 499 (2000) (noting that Hyde “clearly departs from the overwhelming
majority of federal courts that have considered the issue” and criticizing Hyde for its
failure to analyze relevant federal precedent or consider the potential for abuse by
defendants).
      21
             Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 129-30 (E.D. Pa. 1997).
      22
             Doe v. City of Chula Vista, 196 F.R.D. 562, 568-69 (S.D. Cal. 1999).
      23
             See EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D. Cal.
2009) (noting that plaintiff’s treatment for depression “suggests that multiple causation
for her emotional distress may exist”); Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131,
133 (E.D. Pa. 2001) (noting that plaintiffs had received treatment for mental and
emotional distress caused by the alleged unlawful conduct).

                                          -10-                                      6809

evidence.24 Courts adhering to this narrow view generally deem the privacy interests
inherent in the privilege to be of paramount importance.25 By precluding plaintiffs from
relying on the privileged communications to further their own claim, this approach
“prevents the privilege from being used as both a shield and a sword.”26
              There is a middle ground. Some courts allow discovery for serious
psychological conditions, but recognize the physician and psychotherapist privilege for
garden-variety mental anguish claims.27 The Missouri Supreme Court adopted this view
in State ex rel. Dean v. Cunningham, which concerned a claim for emotional distress in
the context of a sex discrimination suit.28 There, the court held that a plaintiff claiming
emotional distress damages in an antidiscrimination suit is protected by the
psychotherapist privilege where: “ her claim [(1)] is only for such emotional distress and



       24
             See, e.g., Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal. 2003)
(holding privilege not waived in housing discrimination suit seeking emotional distress
damages where plaintiffs stipulated they would not “rely on any treating psychotherapist
or other expert” to prove emotional distress); Hucko v. City of Oak Forest, 185 F.R.D.
526, 529-31 (N.D. Ill. 1999) (finding no waiver where plaintiff did not intend to offer
evidence of his psychotherapy, testify about doctor’s advice, or offer independent expert
testimony to prove his claim of emotional harm); Vanderbilt v. Town of Chilmark, 174
F.R.D. 225, 228-30 (D. Mass. 1997) (holding that plaintiff in discrimination suit seeking
damages for emotional distress did not waive privilege because she did not introduce
communications with psychotherapist into evidence).
       25
              See, e.g., Vanderbilt, 174 F.R.D. at 229 (analyzing federal privilege).
       26
              Fitzgerald, 216 F.R.D. at 637.
       27
            See, e.g., EEOC v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 641 (E.D. Wash.
2011) (holding that plaintiff had not waived privilege where he alleged only garden-
variety mental anguish and had not affirmatively relied on any privileged
communications).
       28
              182 S.W.3d 561, 563-64 (Mo. 2006).

                                           -11-                                      6809

humiliation that an ordinary person would experience under the circumstances or that
may be inferred from the circumstances, and (2) is not to be supported by any evidence
of medical or psychological treatment for a diagnosable condition.”29 The Cunningham
court thus based its decision on both the nature of the mental anguish claims and the fact
that the plaintiff had not introduced any privileged communications into the lawsuit.
              In Cunningham, the plaintiff had asserted that she sought no treatment for
mental anguish, had not requested a specific dollar amount for damages, and had sought
only garden-variety mental anguish damages.30 In these circumstances, the court
concluded that evidence of the plaintiff’s “medically or psychologically diagnosable
mental or physical condition is irrelevant to the question of whether she suffered
‘garden[-]variety’ emotional distress as a result of the incidents pleaded” in her sex
discrimination claim.31
              The Cunningham court explained that its holding should not prejudice the
defendant:
              [T]he corollary to Dean’s denial that she has a medically
              diagnosable injury is that the defense is entitled to bring that
              fact to the attention of the jury, through her answers to
              interrogatories, through cross-examination or otherwise. In
              other words, the defense may show that Dean’s emotional
              distress and humiliation were not so severe as to require
              medical or physical consultation or treatment.[32]
The court also noted that its holding precluded the plaintiff from claiming a medically
diagnosable injury, such as depression: If the plaintiff contended that she was treated for

       29
              Id. at 569.
       30
              Id. at 567.
       31
              Id. at 568.
       32
              Id. at 569.

                                           -12-                                      6809

depression resulting from the defendants’ alleged acts, the privilege would be waived.33
Many courts in other jurisdictions have adopted a similar approach.34
                This narrower approach to waiver is consistent with our previous decisions
construing Alaska Civil Rule 35(a). This rule provides that a court cannot order a mental
examination unless the movant shows that the other party’s mental condition is “in
controversy” and that there is “good cause” for an examination.35 Some federal courts
have noted that “determining whether the plaintiff has placed her mental condition at
issue so as to waive the [psychotherapist] privilege is analogous to, and should be
generally consistent with, the analysis conducted when a Rule 35(a) examination is
requested.”36
                Our cases interpreting the “in controversy” requirement of Rule 35(a) are
therefore instructive. “To be ‘in controversy’ means to be ‘directly involved in some


      33
                Id.
      34
              See, e.g., Ruhlmann v. Ulster Cnty. Dep’t of Soc. Servs., 194 F.R.D. 445,
450 (N.D.N.Y. 2000) (“[A] party does not put his or her emotional condition in issue by
merely seeking incidental, ‘garden-variety,’ emotional distress damages, without
more.”); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (holding that
plaintiff avoided waiver of privilege where she had restricted her claims to humiliation,
embarrassment, anger, and other similar emotions, and was barred from introducing
medical evidence at trial); Kent, supra note 20, at 490-96 (collecting cases).
      35
             Alaska R. Civ. P. 35(a). Federal Civil Rule 35(a) also provides that a court
may order a party whose mental condition is “in controversy” to submit to a mental
examination.
      36
              Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 557 (N.D. Ga. 2001);
see also Jackson v. Chubb Corp., 193 F.R.D. 216, 225 n.8 (D.N.J. 2000) (noting that
“[i]n the analogous context of requiring a plaintiff to undergo a mental examination
pursuant to Federal Rule of Civil Procedure 35(a), courts have generally found that
‘garden[-]variety’ emotional distress does not satisfy the rule’s requirement that the
plaintiff’s mental condition must be ‘in controversy’ ” and citing cases).

                                            -13-                                    6809

material element of the cause of action or a defense.’ ”37 We have cautioned that this
requirement should not be disregarded:
              Civil Rule 35(a) should be invoked cautiously, only after the
              movant has demonstrated sufficient justification for a mental
              or physical examination. This ensures that trial courts can
              guard against misuse of Civil Rule 35(a) as an unwarranted
              mechanism for discovering mental or physical issues absent
              good reason to believe that such issues actually exist.[38]
Most other courts addressing this issue have held that employment discrimination
plaintiffs do not place their mental condition “in controversy” by alleging garden-variety
emotional distress.39
              We find the rationale underlying this narrower approach to waiver more
persuasive. Garden-variety mental anguish claims are sufficiently limited in scope to
alleviate the Municipality’s concerns regarding fairness to defendants. If the officers do
not allege that they have a medically diagnosable injury or that they have received




       37
             Alyssa B. v. State, Dep’t of Health & Soc. Servs., 123 P.3d 646, 650 (Alaska
2005) (quoting Dingeman v. Dingeman, 865 P.2d 94, 99 (Alaska 1993)).
       38
              Id. at 650-51 (footnote omitted).
       39
               Stevenson, 201 F.R.D. at 553; see also Ricks v. Abbott Labs., 198 F.R.D.
647, 648 (D. Md. 2001) (noting that the majority of courts have held that a plaintiff’s
mental condition is not placed “in controversy” by simply making a claim for emotional
damages as part of an employment discrimination claim, unless she asserts a specific
cause of action for the infliction of emotional distress, alleges a specific disorder, alleges
unusually severe distress, offers expert testimony in support of her claim for emotional
distress, or concedes that her mental condition is “in controversy”); LeGendre v. Monroe
Cnty., 600 N.W.2d 78, 87-90 (Mich. App. 1999) (collecting cases).

                                            -14-                                        6809

treatment related to their emotional distress, the Municipality is entitled to bring this
information to the jury’s attention.40
              Moreover, wide-ranging inquiry into an individual’s medical and
psychiatric history could deter legitimate discrimination claims.41 Litigants should not
be forced to choose between disclosing highly personal medical information and
asserting claims for distress that any healthy individual would likely suffer as a result of
discrimination. Our cautious approach should achieve an appropriate balance between
a defendant’s interest in fair disclosure, the privacy interest protected by the physician
and psychotherapist privilege, and the societal values promoted by state law.42
       C.	    Some Of The Mental Anguish Claims In This Case Are Garden-
              Variety Claims.
              The officers assert that they suffered only garden-variety mental anguish
as a result of the Municipality’s discriminatory conduct. They point out that they did not



       40
              See State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 569 (Mo. 2006);
see also Fitzgerald v. Cassil, 216 F.R.D. 632, 638 (N.D. Cal. 2003) (listing the defense’s
ability to cross-examine the plaintiff “about other stressors or contributing factors that
may explain or have contributed to the alleged emotional distress,” present other
evidence to show that a plaintiff’s description of her distress is exaggerated, and elicit
from the plaintiff the fact that the plaintiff did not seek treatment or therapy for such
distress as “numerous avenues” through which a defendant can make its case without
access to confidential medical records).
       41
              Cunningham, 182 S.W.3d at 566; see also Taylor v. ABT Elecs., Inc., No.
05 C 576, 2007 WL 1455842, at *2-3 (N.D. Ill. May 14, 2007) (holding assertion of
garden-variety emotional distress claims does not waive privilege and noting that
“allowing such discovery would discourage people from coming forward to bring these
kinds of [civil rights] claims if as a result their whole life becomes an open book”)
(internal quotation marks omitted).
       42
               AS 18.80.200(b) (“[I]t is the policy of the state and the purpose of this
chapter to eliminate and prevent discrimination in employment . . . .”).

                                           -15-	                                      6809

receive medical treatment for emotional distress and that their claims can be established
by lay testimony. They suggest that their reactions to APD’s alleged discriminatory
conduct were normal considering the stresses unique to their positions as police officers.
              The Municipality argues that the officers’ claims are not garden-variety
claims. Specifically, it asserts that Feliciano’s claims of aches and pains, fatigue,
insomnia, loss of energy, and relationship issues with his family are not the foreseeable
result of a hostile work environment. The Municipality contends that Feliciano’s
physical symptoms could be due to a number of medical ailments and that his emotional
reactions are not typical or proportionate to the magnitude of the alleged discrimination.
The Municipality also argues that Kennedy’s claims are not garden-variety claims
because they “go further than expressing mere emotions.”
              “Garden-variety” means ordinary or commonplace.43 “Garden[-]variety
claims refer to claims for compensation for nothing more than the distress that any
healthy, well-adjusted person would likely feel as a result of being so victimized.”44
They are restricted to “the negative emotions that [a plaintiff] experience[s] essentially
as the intrinsic result of the defendant’s alleged conduct.”45 Claims fall within the ambit
of garden-variety anguish where they “do[] not exceed the suffering and loss an ordinary
person would likely experience in similar circumstances, and constitute[] matters that are



       43
              M ERRIAM -W EBSTER ’S COLLEGIATE D ICTIONARY 480 (10th ed. 1998); see
also GARNER ’S DICTIONARY OF LEGAL U SAGE 386 (3d ed. 2011) (defining garden variety
as “of the ordinary or familiar kind”).
      44
              Jacobs v. Conn. Cmty. Technical Colls., 258 F.R.D. 192, 196 (D. Conn.
2009) (quoting EEOC v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 121 (W.D.N.Y. 2009))
(internal quotation marks omitted).
       45
              Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999).

                                           -16-                                      6809

within the everyday experience of the average juror.”46 Generally, garden-variety claims
allege “the kind of emotional distress or humiliation that an ordinary person would
experience in such circumstances.”47
              Several courts have distinguished garden-variety anguish from more serious
conditions, such as depression.48 One court, for example, allowed a plaintiff to present
evidence of “humiliation, embarrassment, and other similar emotions,” such as anger, but
precluded evidence “about symptoms or conditions that she suffered (e.g., sleeplessness,
nervousness, depression).”49 Some courts have identified the relevant inquiry as whether
the condition required medical treatment.50 Others have placed temporal boundaries on




       46
              EEOC v. Serramonte, 237 F.R.D. 220, 224 (N.D. Cal. 2006) (quoting
Fritsch v. City of Chula Vista, 187 F.R.D. 614, 632 (S.D. Cal. 1999)) (internal quotation
marks omitted).
       47
              State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 564 (Mo. 2006).
       48
             See id. at 569 (stating that plaintiff’s allegation that she was treated for
depression resulting from defendants’ alleged acts will waive the privilege).
       49
              Santelli, 188 F.R.D. at 309; see also Jacobs, 258 F.R.D. at 196-97
(deeming allegations of insomnia, depression, inability to focus, and anxiety as
sufficiently serious to trigger waiver of the privilege). But see Sorenson v. H & R Block,
Inc., 197 F.R.D. 199, 204 (D. Mass. 2000) (holding that allegations of “mental anguish,
severe emotional distress, humiliation, personal indignity, emotional pain, . . .
embarrassment, and anxiety” qualified as garden-variety claims).
       50
             See Taylor v. ABT Elecs., Inc., No. 05 C 576, 2007 WL 1455842, at *2
(N.D. Ill. May 14, 2007) (“[T]he very nature of ‘garden[-]variety’ emotional
distress damages contemplates that they are not necessarily medically based, but
rather compensation for ‘humiliation, embarrassment, and similar emotions.’ ”);
Epstein v. Kalvin-Miller Int’l, Inc., 139 F. Supp. 2d 469, 480 (S.D.N.Y. 2001) (“A
‘garden[-]variety’ emotional distress claim is one that did not require medical treatment.”
(citing Luciano v. Olsten Corp., 912 F. Supp. 663, 673 (E.D.N.Y. 1996))).

                                           -17-                                      6809

claims, indicating that a claim for mental suffering is not a garden-variety claim if the
plaintiff alleges ongoing or permanent emotional distress.51
             We find several of these limitations appropriate. A claim is not a garden-
variety anguish claim if it involves a diagnosable mental disease or disorder, medical
treatment or medication, longstanding, severe, or permanent emotional distress, physical
symptoms, or expert testimony. Garden-variety claims will typically involve emotions
rather than conditions. Limiting potential claims in this way ensures that the alleged
distress will fall within the common experience of jurors such that they can readily
understand the nature or severity of the emotional distress.52
             In this case, Kennedy described his mental anguish claim by referring to
simple emotions. He asserted that he was “very angry, disappointed, and occasionally
sad.” He stated that his “trust levels [were] very low” and that he was “discouraged and
disappointed” by the actions of the APD. Because Kennedy only references his
emotions, his claim is a garden-variety mental anguish claim.
             Feliciano described more severe symptoms.           He stated that he was
“disturbed” by the alleged discrimination. He elaborated:




      51
               See Verma v. Am. Express, No. C 08-2702 SI, 2009 WL 1468720, at *2
(N.D. Cal. May 26, 2009) (finding emotional distress claims were not garden variety if
plaintiff stated that she continued to experience extreme emotional distress nearly two
years after her alleged wrongful termination); cf. Serramonte, 237 F.R.D. at 224 (noting
that plaintiff no longer had symptoms of distress and concluding that claims for
emotional distress were garden variety).
      52
              See Ricks v. Abbott Labs., 198 F.R.D. 647, 649 (D. Md. 2001) (“A trier of
fact . . . does not need help understanding the ordinary grief, anxiety, anger, and
frustration that any person feels when something bad occurs.”); see also Cunningham,
182 S.W.3d at 568.

                                          -18-                                     6809

             The conduct of the APD has given me the feeling that
             everything I have done throughout my career has been for
             naught. I feel sad, resulting in lower activity and feeling
             anxious, empty, hopeless, helpless, worthless, guilty,
             irritable[,] and restless. I have experienced insomnia, fatigue,
             loss of energy, aches and pains, and a strained relationship
             with my wife and children.
Feliciano also asserted that he “had no confidence” and felt he had to retire from APD.
             As currently framed, Feliciano’s claim goes beyond the scope of mere
emotions. Feliciano’s symptoms could suggest that he may suffer from a diagnosable
mental condition. Because this claim does more than describe Feliciano’s emotions, it
is not a garden-variety claim.
      D.     Other Issues
             The Municipality argues that strict limitations should be imposed on proof
of mental anguish when there is no waiver of the physician and psychotherapist
privilege. It contends that the officers’ claims should be based solely on their own
testimony and requests various other specific limitations on the substance of such
testimony.
             The appropriate limitations on proof should mirror the limits placed on
permitted claims. Therefore, under the test we adopted above, the officers are precluded
from introducing evidence of a diagnosable disease or disorder,53 medical treatment or
medication,54 longstanding, severe, or permanent distress,55 physical symptoms,56 or


      53
             Cf. Valiavacharska v. Celaya, No. 10-4847 JSC, 2011 WL 4479341, at *3
(N.D. Cal. Sept. 26, 2011) (precluding claims of post-traumatic stress disorder or
nightmares).
      54
              Cf. Epstein, 139 F. Supp. 2d at 480 (“A ‘garden[-]variety’ emotional

distress claim is one that did not require medical treatment.” (citing Luciano, 912 F.

                                                                         (continued...)


                                          -19-                                    6809

expert testimony.57 Subject to these limitations on content, nothing precludes lay
testimony by individuals other than the claimants. Such limitations on proof will prevent
the privilege from being used as both a “shield and a sword.” 58
              On remand, Feliciano should be permitted the opportunity to limit his claim
to garden-variety mental anguish.59 If he does not, then he may be ordered to provide the
requested medical discovery. Any required release should be reasonably limited to the
relevant time frame and to those records that could be relevant to the types of conditions




       54
             (...continued)
Supp. at 673)).
      55
             See Valiavacharska, No. 10-4847 JSC, 2011 WL 4479341, at*3 (limiting
evidence of emotional distress to “that what an ordinary person subjected to similar
circumstances would experience and was not prolonged or ongoing”); Verma, No. C 08­
2702 SI, 2009 WL 1468720, at *2 (holding that plaintiff’s “claims for emotional
distress — and any proof of them to be presented at trial — shall be limited to the periods
during her employment when she allegedly experienced harassment, retaliation and
discrimination, and the period immediately following her allegedly wrongful
termination”).
       56
             See Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999)
(permitting plaintiff to present evidence of “humiliation, embarrassment, and other
similar emotions,” but precluding plaintiff from introducing evidence “about symptoms
or conditions that she suffered”).
       57
              Cf. Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal. 2003) (concluding
privilege not waived because plaintiffs stipulated they would not affirmatively rely on
any treating psychotherapist or other expert to prove emotional distress damages).
       58
              See id. at 637.
       59
               See Verma, No. C 08-2702 SI, 2009 WL 1468720, at *2 (permitting
plaintiff to limit her emotional distress claims as necessary to avoid waiver of the
privilege, and construing her complaint accordingly).

                                           -20-                                      6809

asserted. Finally, we decline to address issues outside the scope of our order granting
review.60
V.    CONCLUSION
             We REVERSE the superior court’s order granting the Municipality’s
motion to compel discovery and REMAND to the superior court for proceedings
consistent with this opinion.




      60
             Both parties make a number of additional arguments in their briefs. The
Municipality urges us to impose a limit on damages awarded under AS 18.80.220. The
officers make arguments implicating the constitutional right to privacy and the Health
Insurance Portability and Accountability Act. But these issues were not designated for
review and so we decline to address them here. See Green v. State, 544 P.2d 1018, 1020
n.6 (Alaska 1976) (declining to review issue not raised in petition for review).

                                         -21-                                    6809
