
USCA1 Opinion

	




          March 27, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1850                                  SHARON E. RANKIN,                                Plaintiff, Appellant,                                          v.                          LIBERTY MUTUAL INSURANCE COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Sharon E. Rankin on brief pro se.            ________________            Joan Ackerstein,  Jackson, Lewis, Schnitzler  & Krupman and  Janet            _______________   _____________________________________      _____        K. Adachi on brief for appellee.        _________                                 ____________________                                 ____________________                      Per Curiam.   Plaintiff-appellant Sharon E. Rankin,                      __________            pro  se, challenges the  district court's judgment dismissing            ___  __            her complaint with prejudice as a sanction for her failure to            comply with  discovery orders.  The  complaint alleged racial            discrimination,   nepotism,   and  workplace   harassment  in            violation of Title VII,  as well as pendent state  law claims            for   intentional  infliction   of  emotional   distress  and            defamation.                       The  district judge dismissed  the case upon motion            by the defendant because over a two year period plaintiff had            repeatedly ignored discovery  deadlines without  "justifiable            excuse," and  "steadfastly refused  to comply with  discovery            orders even though  she was given  several warnings from  the            court  and the  magistrate  judge  that [further]  failure[s]            could lead to dismissal."  Order  at 9.  The court found that            plaintiff's actions had  "unnecessarily wasted the  resources            of  the defendant and the court" and impeded attempts to move            toward a resolution of the case on the merits.  Id.                                                            ___                      On  appeal, plaintiff  challenges the  propriety of            the  court's  discovery  orders  compelling   the  deposition            testimony of  her treating  psychiatrist, Dr.  Gaticales, and            production  of related  medical  records.   She resisted  the            orders below  on the ground  that the doctor's  knowledge and            records  were protected  from  disclosure by  New Hampshire's            psychotherapist-patient privilege.  The magistrate determined            that while the federal court would recognize the privilege in            this  case,1   on  balance  the  defendant's   need  for  the            discovery of relevant matters outweighed plaintiff's interest            in  confidentiality.   See Hampers, 651  F.2d at  19 (holding                                   ___ _______            that  court  should weigh any injury  from disclosure against            the  benefit  to  be  gained  for  the  "correct disposal  of            litigation" when deciding on applicability of a state-created            privilege  in a federal  question case).   The district court            several times affirmed the magistrate's decision.                      The balance struck by the court was well within its            discretion to resolve conflicts over the permissible scope of            discovery.   See  In  re San  Juan  Dupont Plaza  Hotel  Fire                         ___  ___________________________________________            Litig., 859 F.2d 1007,  1019 (1st Cir. 1988) (holding  that a            ______            trial  court has  broad discretion  in managing  discovery to            balance  conflicting interests  in discovery  of confidential            information).    Plaintiff's  complaint  made  her  emotional            condition  a central  issue in  the case.   She  alleged that            defendant's discrimination  and intentional torts  had caused                                            ____________________            1.    No issue has been  raised in this  appeal regarding the            magistrate's  preliminary  determinations,  (1) that  federal            common  law  governs  the  assertion of  the  privilege  with            respect to both the federal and pendent state claims, and (2)            that the factors listed in In re Hampers, 651  F.2d 19, 22-23                                       _____________            (1st  Cir.  1981),  favor recognition  of  the  state-created            privilege in  this case.  In light of our disposition we need            not address  these preliminary matters.  See United States v.                                                     ___ _____________            Butt, 955 F.2d  77, 80 n.3 (1st Cir. 1992)  (leaving open the            ____            question    whether   the    federal   rules    recognize   a            psychotherapist-patient privilege); United States v. Barrett,                                                _____________    _______            766  F. 2d 609, 616 (1st Cir.) (same), cert. denied, 474 U.S.                                                   ____________            923 (1985).                                         -3-            her  permanent  psychological injury  which had  disabled her            from all employment since May 9, 1990, rendered her unable to            seek  work,   and  required  her  to   submit  to  continuing            psychiatric care.   She  sought compensatory damages  for her            alleged emotional disability in addition to punitive damages,            front  pay, back  pay and  employment benefits.   To  mount a            defense,   obviously  defendant  needed  discovery  from  Dr.            Gaticales   who,   as   plaintiff's   treating   psychiatrist            throughout  the  period  of  alleged  disability, had  unique            firsthand   knowledge  and  opinions  about  the  plaintiff's            condition.   Cf.  Nelson v.  Lewis, 534  A.2d 720,  722 (N.H.                         ___  ______     _____            1987)  (explaining   that  a   state  plaintiff  waives   her            physician-patient  privilege as  to formal  discovery of  her            medical condition when she places the condition at issue in a            malpractice case).2                        Plaintiff shifts ground on appeal, however, and now            urges that the defendant had no right to depose Dr. Gaticales                                            ____________________            2.         Moreover,  plaintiff  specifically  signalled  her            intention to  waive whatever  remaining privilege she  had by            designating  Dr.   Gaticales  as  a  potential  expert  trial            witness.  See 8 Charles A.  Wright et al., Federal Practice &                      ___                              __________________            Procedure:  Civil  2d    2016.2  (1994)  (reporting that  the            _____________________            majority of courts permit discovery of privileged matter when            it is  contemplated  that the  privilege  will be  waived  at            trial).   The  designation  did not,  as plaintiff  seemingly            contends, insulate the  doctor's firsthand  knowledge of  the            facts from  discovery under the "work  product doctrine," nor            cloak it with other protections which  apply solely to expert            opinions  developed in  anticipation  of litigation.   See  8                                                                   ___            Wright  et  al.    2033  (citing  Fed.  R.  Civ. P.  26(b)(4)            advisory committee's note).                                         -4-            because  the  Supreme Court  has  held that  a  plaintiff may            sustain  a  Title  VII  harassment  claim  without  proof  of            concrete psychological harm.    See Harris  v. Forklift Sys.,                                            ___ ______     _____________            114 S. Ct. 367, 371 (1993) ("So long as the environment would            reasonably  be perceived,  and  is perceived,  as hostile  or            abusive  .  .  .  there  is   no  need  for  it  also  to  be            psychologically injurious.").   She  also argues  that direct            proof of  psychological  harm is  not needed  to support  her            state tort claims.                      Whatever the cogency of these arguments in  another            case,3 here  they  are beside  the  point.   Plaintiff  never            asked the  district court for  an opportunity to  withdraw or            replead her claim. Throughout  the drawn-out discovery battle                                            ____________________            3.      In discrimination  cases where  the complaint  merely            includes   an  allegation  of  emotional  distress  there  is            disagreement  whether  the  plaintiff's  mental  condition is            thereby placed "in controversy"  for discovery purposes.  See                                                                      ___            Ziemann v.  Burlington County Bridge Comm'n,  155 F.R.D. 497,            _______     _______________________________            500  (D.N.J.  1994)  (observing  disagreement  among district            courts, but finding "no substantial dispute" that plaintiff's            mental condition was in  controversy where she alleged a  60%            psychiatric disability.); Bridges  v. Eastman Kodak  Co., 850                                      _______     __________________            F. Supp. 216, 221 (S.D.N.Y. 1994) (finding no "hard and fast"            rule  to explain  district  courts'  differing  results,  but            observing that most cases allow discovery where the plaintiff            pleads  an ongoing mental injury or a separate tort claim for            emotional distress).                       In  this case,  however, plaintiff  alleged both  a            separate tort claim for  emotional distress, and a continuing            psychiatric disability,  so there is no question that she had            placed her  mental condition in  controversy.  Cf.  Sabree v.                                                           ___  ______            United  Bhd. of Carpenters & Joiners, 126 F.R.D. 422, 425 (D.            ____________________________________            Mass.  1989)  (denying  a  motion  to  compel  production  of            psychotherapist's  records  where   plaintiff  alleged   only            "garden variety" emotional distress).                                           -5-            below, she presented her alleged  psychological disability as            a  pivotal part of her  case.  She  repeatedly emphasized the            defendant's   alleged   responsibility   for  her   emotional            suffering, and her need for continuing psychiatric care, even            as she  opposed defendant's  requests for discovery  from Dr.            Gaticales and disobeyed the court's orders.                        Plaintiff's  attempt in  this court  to recast  her            pleading as  a "garden  variety" claim of  emotional distress            comes too late.  See Powers v. Boston  Cooper Corp., 926 F.2d                             ___ ______    ____________________            109,  111 (1st Cir. 1991)  (holding that this  court will not            entertain   theories  omitted  from  the  pleadings  and  not            otherwise  seasonably advanced  in  the district  court).   A            party will not be permitted to undermine the district court's            management of  the discovery process by  shifting theories of            recovery on appeal.                        We also see no merit to plaintiff's contention that            the  district court chose  the wrong sanction.   The district            judge   has   considerable   discretion  to   determine   the            appropriate sanction for  a party's deliberate  noncompliance            with  the court's  discovery  orders.   Barreto v.  Citibank,                                                    _______     _________            N.A.,  907 F.2d  15, 17  (1st Cir.  1990); see  also National            ____                                       _________ ________            Hockey League v. Metropolitan Hockey Club, 427 U.S. 639,  642            _____________    ________________________            (1976).  Plaintiff's assertions to  the effect that the court            misconstrued  her  recalcitrance,  unfairly  blamed  her  for            delays attributable  to others,  and  misinterpreted its  own                                         -6-            orders,  are belied by the  record.  The  court explained its            reason  for   imposing  the   sanction  of  dismissal   in  a            comprehensive  order that  is well  supported by  the record.            There was no abuse.                      Lastly, we  perceive no  support in the  record for            plaintiff's  contention that  the district  court abused  its            discretion  by denying  her motions  to dismiss  the opposing            counsel  from the case.  See In  re Bushkin Assoc., Inc., 864                                     ___ ___________________________            F.2d  241,  246  (1st  Cir.  1989)  (the  district  court  is            necessarily   accorded   wide    latitude   in    determining            disqualification  motions).  After  careful consideration, we            find plaintiff's remaining arguments legally frivolous.                      Affirmed.                      ________                                         -7-
