What follows is a guest post from Dan Cummins, of Foley, Cognetti, Comerford, Cimini & Cummins in Scranton, Pennsylvania.  His Tort Talk Blog is rapidly becoming required reading for Pennsylvania tort defense lawyers.  Dan participated in the case he discusses as amicus curiae for the Pennsylvania Defense Institute.  Dan gets all the credit, and all the blame, for this post.

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Here is a link to the Superior Court’s April 26, 2010 Opinion in favor of the defense in the case of Gormley v. Edgar.

The issue presented was whether the Philadelphia County Court of Common Pleas correctly ruled that the defense should be entitled to discovery of a pre-accident mental health consultation medical record pertaining to a plaintiff who had pled emotional distress claims in a civil litigation matter.

The Plaintiff argued that they were only pleading ordinary emotional distress claims attendant with a personal injury action.

The defense argued that, once the Plaintiff put her mental health condition in issue in the case with claims of severe, disabling and indefinitely continuing mental distress, anguish and anxiety, the discovery of the pre-accident record should be allowed.

The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly ruled that, where the Plaintiff made allegations in the Complaint that she sustained “anxiety” as a result of an accident, which is a recognized mental health disorder, the Plaintiff put her mental health status at issue. As such, the Superior Court found that the trial court properly ruled that the defense was entitled to discovery of medical records pertaining to the Plaintiff’s pre-accident mental health treatment records.

In the Opinion, the Superior Court did note that general averments of shock, mental anguish and humiliation, which are routinely recoverable damages for non-economic loss in Pennsylvania, are not sufficient to place a Plaintiff’s mental condition at issue or cause a waiver any privilege against the production of mental health records.