                 IN THE SUPREME COURT OF IOWA
                              No. 14–0095

                           Filed April 3, 2015


CAMERON FAGEN,

      Appellant,

vs.

Grand View University, NPI Security,

and

ROSS IDDINGS,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Rebecca

Goodgame Ebinger, Judge.



      A party seeking damages for mental disability and mental pain and

suffering appeals an order by the district court requiring him to sign a

patient’s waiver releasing his prior mental health records to the

tortfeasor. REVERSED AND CASE REMANDED WITH INSTRUCTIONS.


      Roxanne Conlin of Roxanne Conlin & Associates, P.C., Des Moines,

for appellant.



      Michael Carmoney and Allison J. Frederick of Carmoney Law Firm,

PLLC, Des Moines, for appellee.
                                  2

      Paige Fiedler of Fiedler & Timmer, P.L.L.C., Urbandale, and

Thomas J. Duff of Duff Law Firm, P.L.C., Des Moines, for amicus curiae

Iowa Association for Justice.



      Ryan G. Koopmans of Nyemaster Goode, P.C., Des Moines, for

amici curiae Iowa Association of Business and Industry and the Iowa

Defense Counsel Association.
                                    3

WIGGINS, Justice.

        An injured party brought a tort action claiming monetary damages

for his injury. Part of his damage claim included damages for mental

pain and mental disability.     Based on this claim, the district court

required the injured party to sign a patient’s waiver, allowing the

tortfeasor access to the injured party’s mental health records without

restriction.   We now adopt a protocol balancing a patient’s right to

privacy in his or her mental health records against a tortfeasor’s right to

present evidence relevant to the injured party’s damage claims.

Accordingly, we reverse the order of the district court requiring the

injured party to sign an unrestricted patient’s waiver and remand the

case for further proceedings consistent with this opinion.

        I. Background Facts and Proceedings.

        On April 12, 2012, Fagen was in his dormitory at Grand View

University when he and other male students, including Iddings, entered

the common area of his dormitory from an open doorway.            Another

student physically forced Fagen to the ground.        The students then

wrapped Fagen in a discarded carpet remnant that was in the common

area.   The students secured the carpet around Fagen with duct tape.

While encased in the carpet, Fagen was unable to move his arms and

legs.   The students then picked Fagen up and set him upright in a

corner. While propped up in the corner, the students tied a rope around

the carpet, threw food and trash at Fagen, and kicked and punched him.

        Then, the students lowered Fagen to the ground, rolled him to the

other side of the room, and propped him up against the opposite corner.

At that point, Fagen fell over. Unable to free his arms from the carpet, he

hit the ground face first and shattered his jaw.      An ambulance took

Fagen to the emergency room of Mercy Hospital. Due to the severity of
                                     4

his injuries, Mercy immediately arranged to transport him to the

University of Iowa Hospitals and Clinics for treatment. Fagen underwent

surgery at the University of Iowa hospital.

       On August 29, Fagen filed a petition against six of the students

involved in the assault as well as Grand View.       Fagen amended his

petition on March 3, 2013, adding Grand View’s security company, NPI

Security, as a defendant. Between May 2013 and the time of this appeal,

Fagen dismissed five of the six individual defendants from this action. In

his petition, Fagen asserts an assault and battery claim against Iddings.

His claims against Grand View and NPI are for negligence and premises

liability.

       Fagen alleges in his petition that he has suffered severe and

painful permanent injuries, and has endured and will continue to endure

great physical and mental pain, physical and mental disability, and loss

of enjoyment of life. He also alleges he has in the past and will in the

future incur expenses for medical care, hospitalization, physical therapy,

and medication for the treatment of said injuries. Fagen also alleges the

assault caused a loss of time from his studies and a loss of earning

capacity. He seeks monetary damages for his injuries.

       In his deposition, Fagen disclosed he underwent treatment for

anger management when he was in fourth through sixth grades. Iddings

requested Fagen provide him with a release, waiving Fagen’s privilege to

his mental health records under Iowa Code section 622.10(3)(a) (2013),

and allowing Iddings access to the mental health records pertaining to

the treatment.   Fagen refused.   Iddings then filed a motion in district

court to compel discovery of Fagen’s mental health records.

       Fagen filed a resistance to the motion, arguing the patient–

physician privilege protected the mental health records from his early
                                      5

childhood and the defendant’s request for the records violated his

constitutional right to privacy.   He stated he had not received mental

health treatment because of the assault, which is the subject of this

case.   Fagen argued in his resistance he is only claiming damages for

what he called garden-variety pain and suffering and mental distress and

not for a specific psychiatric or psychological condition. At the hearing,

he told the court he did not intend to introduce any expert testimony

regarding the emotional damages. He also stated he would only ask the

jury for damages for garden-variety pain and suffering and mental

distress, which he defined as the emotional suffering any normal person

would have experienced if they had been the victim of an assault like the

one he experienced.

        Fagen also argued he had a constitutional right to privacy in those

records that created an absolute patient–psychotherapist privilege.

Fagen argued only a showing of necessity or compelling need could

overcome the privilege, neither of which exists in Iddings’s request.

        The district court agreed with Iddings, finding Fagen waived his

privilege to his mental health records by putting his mental well-being at

issue in the case. The court also found Iddings’s request did not violate

Fagen’s constitutional right to privacy. The district court ordered Fagen

to sign an unrestricted patient’s waiver for records within five days of the

entry of the order.

        Fagen did not execute the waiver, but rather filed an application

for interlocutory appeal on this discovery issue.         We granted the

application.

        II. Issue.

        In this appeal, we are required to decide if a tortfeasor in a civil

case is entitled to a signed patient’s waiver from the injured party to
                                      6

obtain that party’s mental health records when he or she alleges in the

petition a claim for mental disability or mental distress.

         III. Scope of Review.

         We typically review discovery disputes under an abuse of discretion

standard.      See State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009).

However, because this case involves the statutory interpretation of Iowa

Code section 622.10, we review for corrections of errors at law.

Ashenfelter v. Mulligan, 792 N.W.2d 665, 668–69 (Iowa 2010). “Moreover,

we have consistently interpreted this statute liberally to accomplish its

goal of fostering candid communications between doctor and patient.”

Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996). We review the

constitutional issue de novo. State v. Reyes, 744 N.W.2d 95, 99 (Iowa

2008).

         IV. Claims of the Parties.

         We begin our analysis by examining the arguments urged by the

parties in this appeal. Iddings contends once Fagen alleged the assault

caused him to experience a mental disability and suffer mental pain and

anguish, he became automatically entitled to a waiver to look at all of

Fagen’s mental health records, without limitation.       Fagen argues that

because he is only seeking damages for the mental pain and suffering

that any normal person would have experienced because of the assault

he experienced, and he is not calling as a witness a mental health

professional to support his claim, Iddings is not entitled to obtain

Fagen’s mental health records. Both are urging an absolute rule. We

disagree with both positions.

         As to Iddings’s contention, we agree there are times a plaintiff’s

mental health records are essential for a tortfeasor’s defense against a

claim.     However, allowing a tortfeasor to obtain all the mental health
                                       7

records of an injured party is not appropriate in all circumstances. For

example, assume a tortfeasor injured a fifty-year-old person in a car

collision and the injured person claims mental disability and mental pain

and suffering in an action against the tortfeasor. Would the tortfeasor

automatically be entitled to review the injured person’s mental health

records concerning counseling the injured party received as a child in

connection with his parent’s divorce forty years earlier?       We think

probably not.

      Fagen’s position that his mental health records are confidential

and therefore absolutely privileged is also off the mark. Let us change

the hypothetical facts assumed above. Now the tortfeasor seeks access

to the fifty-year-old injured party’s mental health records pertaining to

counseling the injured party received for anxiety just six months prior to

the collision. Even if the injured party is only seeking mental pain and

suffering that any normal person would have experienced because of the

collision and not calling a mental health professional to support his or

her claim, we think it may be proper for the tortfeasor to obtain those

records to present a proper defense.

      Thus, it is important for us to strike a proper balance between

Iddings’s and Fagen’s contentions.         We can strike this balance by

examining the constitutional and statutory parameters of the patient–

physician privilege as it pertains to mental health providers and our

rules of discovery.

      V.     Constitutional Parameters of the Patient–Physician
Privilege as it Pertains to Mental Health Providers.

      In the context of a noncriminal case, we have discussed the

patient–physician privilege as it pertains to mental health providers.

McMaster v. Iowa Bd. of Psychology Exam’rs, 509 N.W.2d 754, 758–61
                                      8

(Iowa 1993). McMaster discussed the privilege in the context of the board

of psychology examiners subpoenaing a patient’s records from a

psychologist who was not under investigation. Id. at 755. The first thing

we noted concerning the privilege was that under Iowa law patients have

a constitutional right to privacy in their medical records, but the privilege

is not absolute. Id. at 758–59. Rather, the privilege is qualified and to

determine if the privilege attaches we use a balancing test. Id. at 759.

“The privacy interest must always be weighed against such public

interests as the societal need for information, and a compelling need for

information may override the privacy interest.”       Id. (emphasis added)

(internal quotation marks omitted).

      In McMaster, we adopted a five-part protocol for determining

whether a patient’s constitutional privacy interest in his or her mental

health records must yield to the competing interests of the board. Id. at

759–60.    In a recent case, we summarized the McMaster protocol as

follows:

      The protocol first required the party seeking access to the
      records must “make a minimal showing that the complaint
      reasonably justifies the issuance of a subpoena in
      furtherance of the investigation.” Second, the party seeking
      access to the records must show the records are necessary
      as evidence in the disciplinary proceedings.               This
      requirement can be satisfied by an in camera review of the
      records by the district court. Third, the party seeking access
      to the records must notify the patient and request a waiver
      from the patient prior to issuing the subpoena. Fourth, the
      party seeking access to the records should establish the
      existence of adequate safeguards to avoid unauthorized
      disclosure. Last, the patient’s privacy interest in the records
      will yield to a competing interest of the State only if there is
      an articulated public policy, recognized public interest, or an
      express statutory mandate “ ‘militating toward access.’ ”

State v. Cashen, 789 N.W.2d 400, 406 (Iowa 2010) (citations omitted),

superseded by statute, 2011 Iowa Acts ch. 8 § 2 (codified at Iowa Code
                                      9

§ 622.10(4)), as recognized in State v. Thompson, 836 N.W.2d 470, 490

(Iowa 2013).

       In a later case, we suggested this type of balancing test may not be

appropriate in a civil case under federal law. Ashenfelter, 792 N.W.2d at

673. There, we decided we did not need to address whether a balancing

test is appropriate in a civil case under Iowa law. Id. at 673 (concluding

a parent’s constitutional right to privacy in her mental health records

shielded the records against discovery requests of grandparents seeking

visitation).

      VI.   Iowa Code Section 622.10 and the Patient–Physician
Privilege as it Pertains to Mental Health Providers.

       In Iowa, we do not recognize a common law patient–physician

privilege.     Harder v. Anderson, Arnold, Dickey, Jensen, Gullickson &

Sanger, L.L.P., 764 N.W.2d 534, 537 (Iowa 2009).       However, the Iowa

Code protects communications between a patient and a mental health

professional.     See Iowa Code § 622.10(1) (“A . . . mental health

professional . . . who obtains information by reason of the person’s

employment . . . shall not be allowed, in giving testimony, to disclose any

confidential communication properly entrusted to the person in the

person’s professional capacity, and necessary and proper to enable the

person to discharge the functions of the person’s office according to the

usual course of practice or discipline.”).

       The purpose of the patient–physician privilege is

       to promote free and full communication between a patient
       and his doctor so that the doctor will have the information
       necessary to competently diagnose and treat the patient[,]
       and . . . we construe the statute liberally to carry out its
       manifest purpose.
                                     10

State v. Heemstra, 721 N.W.2d 549, 560–61 (Iowa 2006) (citation omitted)

(internal quotation marks omitted).       A “more liberal interpretation of

section 622.10 is logical because the privilege would be virtually

meaningless if it prohibited testimony but did not protect the very

records upon which such testimony would be based.” Id. at 560. Thus,

we have extended the privilege under section 622.10 to requests for

medical records during discovery. See Ashenfelter, 792 N.W.2d at 671–

72.

       The statute provides for a patient–litigant exception. Iowa Code

§ 622.10(2). It states:

       The prohibition does not apply to . . . mental health
       professionals . . . in a civil action in which the condition of
       the person in whose favor the prohibition is made is an
       element or factor of the claim or defense of the person or of
       any party claiming through or under the person. The
       evidence is admissible upon trial of the action only as it
       relates to the condition alleged.

Id.   If the patient–litigant exception is applicable, Iowa law no longer

protects as privileged the information to which the exception applies.

       In the context of civil litigation, we have explained why the

protection of a patient’s mental health information is lost when the

condition is an element or factor of a claim:

       [T]he existence of the exception will not inhibit
       communication between a patient and his doctor because
       the patient knows his statements will remain confidential
       unless he affirmatively and voluntarily chooses to reveal
       them by raising his condition as an element or factor of any
       claim or defense the patient makes.

Chung, 548 N.W.2d at 151 (emphasis omitted).

       In Jaffee v. Redmond, the personal representative of an individual

who was shot and killed by a police officer sought production of the

officer’s mental health records in litigation filed against the officer and
                                      11

her employer. 518 U.S. 1, 4–5, 116 S. Ct. 1923, 1925–26, 135 L. Ed. 2d

337, 341–42 (1996).       In that case, the plaintiff asserted no claim the

officer had waived the patient–psychotherapist privilege, and the court

therefore decided the narrow question of whether a federal common law

privilege protected the defendant officer’s mental health records. See id.

at 4, 12–13, 116 S. Ct. at 1925, 1929–30, 135 L. Ed. 2d at 341, 346–47.

The Supreme Court concluded the records were confidential and

protected by an absolute federal common law privilege. Id. at 15, 116

S. Ct. at 1931, 135 L. Ed. 2d at 348. The Court in Jaffee explained that

“[a] rule that authorizes the recognition of new privileges on a case-by-

case basis makes it appropriate to define the details of new privileges in a

like manner.” Id. at 18, 116 S. Ct. at 1932, 135 L. Ed. 2d at 349. In

other words, the Court suggested future decisions would likely further

define the scope and waiver of the mental-health-records privilege. See

id.

      Iowa has deemed that when a person files a claim he or she waives

any privilege under section 622.10 in mental health records when the

“condition of the person in whose favor the prohibition is made is an

element or factor of the claim or defense of the person.”       Iowa Code

§ 622.10(2). This waiver occurs regardless of whether the constitution or

statute created the privilege. However, Iowa Code section 622.10 does

not waive the privilege to all mental health records.          The statute

recognizes two competing interests when dealing with medical records: a

patient’s right to privacy in his or her mental health records, which

promotes free and open communication between the psychotherapist and

patient, and the need of a defendant to present a full and fair defense to

the plaintiff’s claims.   “We do not lightly require disclosure of mental

health information.” In re A.M., 856 N.W.2d 365, 377–78 (Iowa 2014).
                                            12

       In balancing these two competing interests, section 622.10

protects a person’s privacy interest in confidential communications made

to certain professionals, but provides for a waiver of the person’s privacy

interest   under     certain     prescribed       circumstances.         One     of     these

circumstances occurs in civil litigation in which persons assert claims

making the person’s “condition . . . an element or factor of the claim or

defense of the person or of any party claiming through or under [them].”

Iowa Code § 622.10(2). Notably, the legislature did not mandate in this

context a waiver of a person’s privacy interest in records unrelated to the

condition that is an element or factor of the claim or defense of the

person.       The last sentence of section 622.10(2) clearly limits the

admissibility of the waived record only if “it relates to the condition

alleged”      by   the   person     whose        privacy   interest     in   confidential

communications is protected. Id.; see also Chung, 548 N.W.2d at 149.

     VII. Iowa Rule of Civil Procedure 1.503 and the Scope of
Discovery.

       “The statutory rule of testimonial exclusion has been extended by

rule to the discovery of confidential communications.”                       Chung, 548

N.W.2d at 149.           Rule 1.503(1) allows discovery of all nonprivileged

documents relevant to the subject matter of the litigation. Iowa R. Civ. P.

1.503(1). Section 622.10 sets up the means for the plaintiff to produce

those nonprivileged records. 1 In situations involving records that are not


       1The legislature added the language requiring a plaintiff to provide a patient’s
waiver in 1997. 1997 Iowa Acts ch. 197, § 8(3). The preamble to chapter 197 included
the phrase “procedures for furnishing patient records of plaintiffs.” Id. ch. 197,
preamble. The bill’s explanation provided:
                Code section 622.10 is amended to provide a procedure for the
       furnishing of a plaintiff’s patient records by a physician or surgeon,
       physician assistant, or mental health professional to an adverse party in
       a civil action in which the condition of the plaintiff is an element or factor
                                          13

mental health records, the party asserting the privilege has the burden of

showing a privilege exists and applies. Hutchinson v. Smith Labs., Inc.,

392 N.W.2d 139, 141 (Iowa 1986).

       Requests for discovery must be “reasonably calculated to lead to

the discovery of admissible evidence.” Iowa R. Civ. P. 1.503(1). In other

words, relevancy to the subject matter of a lawsuit is broader than

relevancy to an issue specifically pled, because the rule permits a party

to discover inadmissible information as long as the request is reasonably

calculated to lead to the discovery of admissible evidence.                 Mediacom

Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 66 (Iowa 2004).

       Thus, rule 1.503(1) and section 622.10(2) operate in tandem. Both

the rule and the statute allow for discovery of records that may lead to

admissible material because the condition of the person in whose favor

the prohibition is made is an element or factor of the claim or defense of

the person. The rule and the statute must work in tandem because the

rule prohibits discovery of privileged information, and the statute

prescribes the limited circumstances in which the privilege in medical

records is waived. Neither the rule nor the statute allows carte blanche

access to a person’s medical records. A person’s mental health records

are discoverable under rule 1.503 if they are not privileged. See Iowa R.

Civ. P. 1.503(1). A person’s mental health records are privileged in a civil

action unless the person’s condition is an element or factor of the claim

of the person or of any party claiming through the person, or an element



_____________________
       of the claim or is a defense of the adverse party or of any party claiming
       through or under the adverse party, if the record relates to the condition
       alleged.
H.F. 693, 77th G.A., 1st Sess., explanation (Iowa 1997).
                                       14

of the claim or defense of an adverse party or of any party claiming

through or under the adverse party. See Iowa Code § 622.10(2)–(3).

      VIII. Analysis.

      The legislature has facilitated the process for accessing a party’s

nonprivileged medical records, including mental health records, by

requiring a party to provide a patient’s waiver to the requesting party

under Iowa Code section 622.10. To decide when and how a party will

be required to provide a waiver to allow another party in a civil case to

access mental health records, we must construe section 622.10.

      In construing a statute, our goal is to determine legislative intent.

See Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004).

To do this, we look at the words the legislature used, not the words the

legislature should have used.    Id.    When the legislature fails to define

words in a statute, we examine the context in which the words appear

and give them their ordinary and common meanings.           Id.   We cannot

“extend, enlarge, or otherwise change the meaning of a statute” under

the guise of construction. Id.

      The language of section 622.10 is clear and unambiguous.           The

legislature has determined the patient–physician privilege is not absolute

in the context of civil litigation.    When a person files a lawsuit, that

person waives his or her privilege in mental health records in which the

condition of the person in whose favor the prohibition is made is an

element or factor of the claim.        Iowa Code § 622.10(2).     By filing a

lawsuit, a party does not give up his or her right to contest the

discoverability of his or her mental health records. Our job is to decide

how a court determines when, in civil litigation, a party waives his or her

privilege in a certain medical record under section 622.10(2) and the

record becomes discoverable under rule 1.503.
                                    15

      We start the discussion by noting that in most actions the parties

are able to determine when a party waives his or her privilege in a

medical record under section 622.10(2).     The parties will only ask the

court to decide this dispute in those rare cases where the parties cannot

resolve it themselves.

      This case presents one of those situations in which the parties

have been unable to resolve their dispute. It is no different from other

discovery disputes that our courts deal with on a regular basis.

Although Fagen’s pleading may be imprecise in describing the nature

and extent of the damages he seeks in alleging mental disability, and

although he has not precisely characterized in his discovery responses

the types of damages he seeks, he has objected to Iddings’s request for a

patient’s waiver on the ground the records sought do not relate to the

condition for which damages are claimed in this case or to any defense

that might be asserted. Fagen has a right to raise this objection. Once

raised, the court must examine the record and the arguments of counsel

to decide this dispute.

      We think using some of the protocols of McMasters will inform the

district court’s approach in identifying which mental health records of a

person must be produced under rule 1.503 as a consequence of waiver

resulting from the person’s filing of a civil lawsuit. These protocols will

enable the court to determine when the record relates to the condition

alleged by a party. As we have already noted, a person does not waive

the privilege in all of his mental health records by merely filing a civil

action.

      When a party refuses upon request to provide a patient’s waiver

under section 622.10, the court must make sure the party seeking the

waiver is not permitted to go on an unlimited fishing expedition into a
                                      16

party’s mental health records.       Therefore, the person requesting the

waiver must make a showing that he or she has a reasonable basis to

believe the specific records are likely to contain information relevant to

an element or factor of the claim or defense of the person or of any party

claiming through or under the privilege. In doing so, the person seeking

the patient’s waiver need not establish the records sought actually

contain admissible evidence concerning an element or factor of the claim

or defense. The person seeking the patient’s waiver need only advance

some good-faith factual basis demonstrating how the records are

reasonably calculated to lead to admissible evidence germane to an

element or factor of the claim or defense. An important requirement of

this showing is the person seeking the patient’s waiver must show a

nexus between the records sought and a specific claim or defense made

in the case.    If a party can make this showing, the patient–physician

privilege is lost as to those records and the party requesting the waiver

shall be entitled to the waiver to obtain those records within the scope of

discovery.

      If the court requires a party to sign and deliver a patient’s waiver,

the party seeking the records must keep confidential the records

obtained with the waiver. See McMaster, 509 N.W.2d at 759–60. The

patient’s    waiver   authorizes   access   only   to   records   meeting   the

requirements of the protocol. If a party needs to disseminate the records

to a third party to prepare for trial, the court should allow such

dissemination with the appropriate safeguards. Finally, the records are

not admissible as evidence unless the party can show the records are

necessary as evidence in the proceeding. See id.
                                        17

      IX. Application of Protocol to the Facts of This Case.

      In this appeal, Fagen objects to providing the waiver because he

claims he is only seeking damages for mental pain and suffering that any

normal person would have experienced because of the assault and is not

calling a mental health professional to support his claim. Assuming this

to be true, Iddings must have a reasonable basis to believe the records

are likely to contain information concerning the mental pain and

suffering Fagen is claiming. Before the court can require Fagen to sign a

waiver for the anger-management counseling records Iddings seeks,

Iddings must advance some good-faith factual basis demonstrating how

the records are reasonably calculated to lead to admissible evidence

germane to mental pain and suffering that any normal person would

have experienced because of the assault alleged by Fagen.

      Based on the record on appeal, we are unable to apply this

protocol to the facts of this case.      First, Fagen’s petition alleges more

than mere mental pain and suffering. It alleges Fagen suffered a mental

disability. A mental disability connotes an incapacity to perform certain

mental functions.        However, at the hearing on this matter before the

district court, Fagen said he was not seeking damages for a mental

disability, but rather damages for garden-variety pain and suffering and

mental distress.

      Second,      the   record   on   appeal   does   not   include   discovery

documents identifying the mental injury damages Fagen is seeking. The

briefs and pleadings indicate he is only claiming damages for garden-

variety pain and suffering and mental distress, which he defines as the

emotional suffering any normal person would have experienced because

of the assault he endured, and not as a specific psychiatric or
                                      18

psychological condition. He also claims in his brief and pleadings that

he does not intend to introduce expert witnesses to support this claim.

      However, the record on appeal does not include discovery

documents limiting his claim to a garden-variety mental distress claim.

Additionally, the record does not include any discovery responses stating

the extent or nature of his mental distress claim.         Furthermore, the

record does not include medical records regarding his physical injuries to

gain further insight into his damage claims in this case.

      Third, the record does not include the portions of Fagen’s

deposition revealing the nature of any anger-management counseling he

received. We do not know who performed the counseling, the time the

counseling    took   place,   and   the    circumstances   that   caused   the

counseling.

      Finally, Iddings asserts he should get all of Fagen’s mental health

records. Iddings has not shown how all of these records are relevant to

Fagen’s specific claim for mental distress. Accordingly, on our review of

the record, Iddings’s request for these specific records is too general in

light of the protocols we announce in this opinion.

      Iddings contends he needs Fagen’s mental health records to

establish a baseline of Fagen’s mental condition prior to the assault. He

fails, however, to show a good-faith factual basis demonstrating how the

records are reasonably calculated to lead to admissible evidence germane

to Fagen’s claim. Iddings presents no facts that Fagen’s mental health

immediately prior to the assault was anything but normal. He presents

no facts as to how counseling sessions from grade school are reasonably

calculated to lead to admissible evidence regarding a baseline.

      Consequently, we are unable to determine from the record before

us and the arguments made by the parties whether Iddings is entitled to
                                     19

a waiver releasing the specific records he seeks. Thus, we reverse the

order requiring Fagen to sign the requested patient’s waiver and remand

the case to the district court to allow the parties to present the

appropriate evidence called for by this protocol and to apply the protocol

before deciding if Fagen should sign a patient’s waiver.

      X. Disposition.

      We reverse the district court’s order requiring Fagen to sign a

patient’s waiver for his mental health records concerning his anger-

management counseling and remand this case to the district court to

follow the protocol contained in this opinion pertaining to the release of a

party’s mental health records in a civil action.

      REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

      All justices concur except Zager, J., who concurs in result only,

and Mansfield, J., Cady, C.J., and Waterman, J., who dissent.
                                     20
                                                #14–0095, Fagen v. Iddings
MANSFIELD, Justice (dissenting).

      I respectfully dissent.   A good deal of the plurality’s reasoning

makes sense to me. However, I am concerned we are disregarding the

question we are supposed to answer, and instead, answering a question

nobody asked us to answer.

      I. The Garden-Variety Exception.

      This appeal is not about specific mental health records.           The

question Fagen has raised on appeal is whether a defendant can obtain

any of the plaintiff’s mental health records when the plaintiff seeks only

garden-variety emotional distress damages.         I would reject Fagen’s

appeal for three reasons.

      First, Fagen is alleging “mental disability,” which would not qualify

as garden-variety emotional distress under any plausible definition of

that term. Second, I do not believe the underlying statute—Iowa Code

section 622.10 (2013)—allows for a garden-variety exception.          Third,

while I see the policy arguments for a garden-variety exception in the

employment litigation field, I am concerned that in the personal injury

context, a garden-variety exception could be used to give plaintiffs two

bites at the same apple.     Since personal injury plaintiffs can already

recover pain and suffering damages, why should they get a second

verdict line covering “the normal feelings of anguish, grief, distress, fear,

and pain and suffering that any reasonable person would feel . . .

incident to the physical injuries he suffered”? That sounds duplicative to

me. For any of these reasons, I would affirm the judgment below.

      Let me elaborate on these three points.         To begin with, it is

undisputed that Fagen has alleged he suffered a mental disability at the

hands of the defendants. At the beginning of oral argument in this court,
                                       21

Fagen’s counsel reaffirmed that allegation, stating, “We pled . . . that the

plaintiff has endured and will endure great physical and mental pain,

physical and mental disability, and loss of enjoyment of life.” A mental

disability is not garden-variety emotional distress.

        Normally, the availability of discovery is determined by the parties’

allegations.    When a plaintiff has alleged mental disability, opposing

parties and the district court should be able to take that allegation at

face value.

        In addition, even if a plaintiff were alleging only a more routine

form of mental injury, we have a controlling statute. Section 622.10(2)

provides that the patient–psychotherapist privilege

        does not apply . . . in a civil action in which the condition of
        the person in whose favor the prohibition is made is an
        element or factor of the claim or defense of the person or of
        any party claiming through or under the person.

Iowa Code § 622.10(2). Here, the mental health condition of the plaintiff

is an element or factor in the plaintiff’s claim.        In his petition, the

plaintiff alleges, among other things, that he “has endured and will

continue to endure . . . mental pain . . . and mental disability.”

Therefore, under section 622.10(2), the privilege does not apply.           The
statute is not ambiguous, and it should resolve the present case, in my

view.

        Furthermore, section 622.10(3)(a) provides:

        In a civil action in which the condition of the plaintiff in
        whose favor the prohibition is made is an element or factor of
        the claim or defense of the adverse party or of any party
        claiming through or under the adverse party, the adverse
        party shall make a written request for records relating to the
        condition alleged upon the plaintiff’s attorney . . . . Upon
        receipt of a written request, the plaintiff shall execute a
        legally sufficient patient’s waiver and release it to the adverse
        party . . . .
                                         22

Id. § 622.10(3)(a). Note again the mandatory wording—“shall execute.”

Id. I do not see anything in sections 622.10(2) or 622.10(3) that supports

a garden-variety exception.

       Also on point is a rule of civil procedure we have just adopted.

Rule 1.500(1)(b) provides:

       [A]ny party asserting a claim for damages for personal or
       emotional injuries must, without awaiting a discovery
       request, provide to the other parties:

              ....

              (3) The names and addresses of all doctors, hospitals,
       clinics, pharmacies, and other health care providers
       claimant consulted within five years prior to the date of
       injury up to the present date.

             (4) Legally sufficient written waivers allowing the
       opposing party to obtain those records subject to appropriate
       protective provisions authorized by rule 1.504. The opposing
       party must give contemporaneous notice to the claimant
       when the opposing party uses the waivers to obtain records
       and must provide a copy of all records obtained by waiver to
       the claimant and all other parties. Any party who requests
       that the opposing party produce these records in
       nonelectronic form must bear the opposing party’s costs of
       producing them in that form.

Iowa R. Civ. P. 1.500(1)(b). Like Iowa Code section 622.10, our initial

disclosure rule does not support a garden-variety exception.                Rather,

whenever the plaintiff alleges emotional injury, she or he must provide

waivers at the commencement of litigation so the defendant may obtain

the preceding five years of mental health records. 2
       Lastly, even if Iowa Code section 622.10 (and Iowa Rule of Civil

Procedure 1.500) were not an obstacle to recognizing a garden-variety

exception to permitted discovery on mental health, I do not see any need

       2However,   it should be noted that under this rule the defendant would not be
entitled to disclosure of Fagen’s anger-management counseling records from fourth
through sixth grade because of the time that has elapsed.
                                      23

for such an exception in personal injury cases.      In effect, the plaintiff

here seeks to carve out an exception to sections 622.10(2) and 622.10(3)

for garden-variety emotional distress.      What the plaintiff means by

“garden variety” is somewhat elusive to me. The plaintiff offered several

definitions in his briefs and continued to shift among those definitions

during oral argument before this court. Yet his predominant definition

appears to be that emotional distress is garden variety when the plaintiff

is claiming for “the normal feelings of anguish, grief, distress, fear, and

pain and suffering that any reasonable person would feel . . . incident to

the physical injuries he suffered.”

      To me, this form of garden-variety emotional distress sounds a lot

like generic “pain and suffering.”    “The element of pain and suffering

includes bodily discomfort, mental suffering, loss of enjoyment of life,

and other emotional distress.” Pexa v. Auto Owners Ins. Co., 686 N.W.2d

150, 163 (Iowa 2004); see also Miller v. Rohling, 720 N.W.2d 562, 570

(Iowa 2006); Estate of Pearson ex rel. Latta v. Interstate Power & Light Co.,

700 N.W.2d 333, 346–47 (Iowa 2005).           When a plaintiff is simply

claiming undifferentiated pain and suffering damages as part of a

physical injury claim, I would be inclined to agree that his or her mental

health records are not subject to discovery because the plaintiff’s

condition is not an element of his or her claim.

      What then is the problem in this case? The problem is that the

plaintiff wants emotional distress damages in addition to traditional pain

and suffering—in other words, the plaintiff wants a separate line for each

item on the verdict form. If that is so, two possibilities exist. One is that

the plaintiff seeks a double recovery, which should not be allowed. The

other is that the plaintiff intends to recover for mental health injuries

different from and more extensive than the typical “anguish, grief,
                                     24

distress, fear, and pain and suffering . . . incident to the physical injuries

he suffered.”      In that case, the plaintiff has put his mental health

condition at issue and Iowa Code sections 622.10(2) and 622.10(3) apply.

      For all these reasons, the whole notion of garden-variety emotional

distress claims in a personal injury case seems to be a solution in search

of a problem. The plaintiff already can recover what most would regard

as garden-variety damages without exposing his or her mental health

records to discovery—simply by asking only for general pain and

suffering damages.

      It is worth noting, though, where the garden-variety concept

originated. As the plaintiff points out in his briefing, it comes from and

most often appears in the employment discrimination field.          The first

case apparently to use this term is Sabree v. United Brotherhood of

Carpenters & Joiners of America, Local No. 33, 126 F.R.D. 422, 426 (D.

Mass. 1989).       The court there denied discovery of an employment

discrimination plaintiff’s psychotherapy records, on the ground that he

“makes a ‘garden-variety’ claim of emotional distress, not a claim of

psychic injury or psychiatric disorder resulting from the alleged

discrimination.”      Id.   Since then, the garden-variety exception to

discovery of mental health records has become more popular in civil

rights litigation. See Helen A. Anderson, The Psychotherapist Privilege:

Privacy and “Garden Variety” Emotional Distress, 21 Geo. Mason L. Rev.

117, 118, 125–26 (2013) (noting that the approach has been “gaining

ground” and that the issue arises in federal court “most often in civil

rights suits”).    To my knowledge, the vast majority of garden-variety

cases are civil rights cases.

      Here the analysis gets a little more complicated for me. We do not

have a routine line item for pain and suffering in discrimination cases. Is
                                      25

it unreasonable to allow victims of discrimination—like victims of

physical injuries—to recover for a certain modicum of pain and suffering

caused by the incident without putting their mental health condition at

issue? Does the law permit this? Should the law in effect presume that

all acts of unlawful discrimination cause some degree of mental anguish?

These are legitimate questions.      However, they are issues for another

day. My present point is simply that in personal injury cases, a garden-

variety exception is either unneeded or, to the extent it serves any

purpose, contradicted by the statute. That is enough to decide today’s

case for me.

         II. The Plurality’s Protocol.

         Let me now turn to the issue the plurality has addressed,

specifically its decision to engraft a protocol from constitutional privacy

cases.     See McMaster v. Iowa Bd. of Psychology Exam’rs, 509 N.W.2d

754, 758–60 (Iowa 1993); see also Ashenfelter v. Mulligan, 792 N.W.2d

665, 672–73 (Iowa 2010); State v. Cashen, 789 N.W.2d 400, 406 (Iowa

2010), superseded by statute, 2011 Iowa Acts ch. 8, § 2 (codified at Iowa

Code § 622.10(4)), as recognized in State v. Thompson, 836 N.W.2d 470,

490 (Iowa 2013). Importantly, all of those cases involved an involuntary

participant in a legal proceeding who was being asked to produce mental

health records so a party to the proceeding could prove that party’s claim

or defense. See McMaster, 509 N.W.2d at 756; see also Ashenfelter, 792

N.W.2d at 667–68; Cashen, 789 N.W.2d at 404.

         That scenario raises a serious constitutional issue. A crime victim

who finds herself being compelled by the machinery of the state to give

up her private mental health records can legitimately ask, “What about

my privacy?” But someone like the plaintiff here who is seeking to use

the machinery of the state to recover money from another person for
                                           26

mental     health     injuries    stands     in   a    much      different    position,

constitutionally speaking. 3

       My basic quibble with the plurality’s protocol is that even when the

plaintiff has alleged mental injury, it places the burden on the defendant

who wants specific mental health records to provide a “good-faith factual

basis demonstrating how the records are reasonably calculated to lead to

admissible evidence.”         Hence, the plurality criticizes the defendant

because he “presents no facts.” All the plaintiff has to do is refuse to

execute a waiver, and the defendant has to go to court and make this

factual showing.       Thus, in practical effect, the plurality requires the

defendant to conduct other discovery before getting access to mental

health records. This is illustrated in the present case, where the court

remands for the district court to look at “discovery documents identifying

the mental injury damages Fagen is seeking,” “discovery responses

stating the extent or nature of his mental distress claim,” “medical

records regarding his physical injuries to gain further insight,” and

“Fagen’s deposition.”

       I believe Iowa Code sections 622.10(2) and 622.10(3) and Iowa Rule

of Civil Procedure 1.500(1)(b) place the burden on the other side. Section

622.10(3)(a) authorizes access to records based on the “condition

alleged.” Iowa Code § 622.10(3)(a). Rule 1.500(1)(b) requires disclosure

of records when the plaintiff is “asserting a claim for . . . emotional



       3See  Stefanie J. Thomas, Note, Weeding the Garden: Finding a Solution to
“Garden Variety” Emotional Distress Claims and Discovery Issues, 62 Drake L. Rev. 599,
615 (2014) (“It is analogous to assume that when a plaintiff waives the statutory
physician-patient privilege under Iowa Code section 622.10, the plaintiff also waives the
constitutional right to privacy. When confronted with this argument, federal courts
have held that the constitutional right to privacy is waived when a plaintiff alleges
emotional distress.”).
                                           27

injuries.”    Iowa R. Civ. P. 1.500(1)(b).          Allegations drive the process.

Thus, presumptively, when a plaintiff alleges he or she has suffered a

mental injury, his or her mental condition is an element or a factor in the

plaintiff’s claim or defendant’s defense, see Iowa Code § 622.10(2), (3)(a),

and she or he should produce the last five years of mental health records

to the defendant subject to the procedural protections in the rule, see

Iowa Rs. Civ. P. 1.500(1)(b)(3), (4).           True, a plaintiff should have an

opportunity to demonstrate that particular records are not subject to

discovery because they are not reasonably calculated to lead to the

discovery of admissible evidence and in that sense do not “relat[e] to” the

defendant’s defense. 4      However, the burden should be on the plaintiff.

After all, the plaintiff already knows or can readily determine what is in

those records.

       By adopting a protocol that nobody asked for, I fear the plurality is

being helpful to neither trial judges, plaintiffs, nor defendants. I do not

detect a groundswell of opinion that Iowa judges are not managing

discovery disputes appropriately or need more protocols to assist them. 5

The plaintiff here asked for a blanket exception, not a new procedural

protocol.



        4Our prior caselaw has given the phrase “relating to” broad meaning. See, e.g.,

Baker v. City of Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997) (calling an exemption to
governmental tort liability for a “claim relating to a swimming pool” a “broad
classification” and therefore determining it exempted suits involving negligent lifeguards
as well as cases pertaining to pool health standards (internal quotation marks omitted));
see also Dubuque Casino Belle, Inc. v. Bair, 562 N.W.2d 605, 607 (Iowa 1997) (agreeing
with the plaintiff that “ ‘relating to’ is a phrase to be given broad meaning” but noting
that its broad scope can be limited where the legislature chooses to provide narrower
statutory definitions).
       5In fact, the plurality says that the present matter “is no different from other
discovery disputes that our courts deal with on a regular basis.” This confirms, in my
view, the absence of need for a new protocol.
                                     28

      Notably, the plurality’s protocol would apply in any case where the

plaintiff seeks recovery of damages for emotional distress or mental

injury, whether garden variety or not.       It may foster time-consuming

discovery disputes.    It may force a defendant to spend time on extra

depositions trying to find indirect evidence of the plaintiff’s mental health

condition (say through questioning of the plaintiff’s acquaintances) in

order to support a request for the plaintiff’s mental health records. In

some cases, this discovery may be more intrusive and embarrassing than

production of the records would have been. It may cause trial dates to

be postponed because the district court will be unable to rule on whether

mental health records should be produced until fact discovery is largely

complete—i.e., on the eve of trial. The plurality seems to foreswear the

traditional, logical approach (embodied in Iowa Code section 622.10 and

recently reinforced by Iowa Rule of Civil Procedure 1.500(1)(b)) that a

defendant can conduct discovery based on what the plaintiff alleges,

subject to the plaintiff’s ability to make specific, supported objections.

      For the foregoing reasons, I respectfully dissent.

      Cady, C.J., and Waterman, J., join this dissent.
