VAULT RECIPROCAL EXCHANGE, Plaintiff, v. Brenda COHAN and Michael Cohan, Defendants Civil No. 23-1489 (RMB/AMD) United States District Court, D. New Jersey, Camden Vicinage Filed April 02, 2024 Counsel Anupama Prasad, Kristie Marie Abel, Cozen O'Connor, Philadelphia, PA, for Plaintiff. David R. Castellani, Castellani Law Firm, LLC, Northfield, NJ, for Defendants. Donio, Ann Marie, United States Magistrate Judge ORDER [D.I. 37] *1 This is a declaratory judgment action in which Plaintiff, Vault Reciprocal Exchange, seeks a determination that it has no obligation under insurance policies issued by Plaintiff to defend or indemnify Defendant Brenda Cohan or reimburse Defendant Cohan for any personal injuries sustained in connection with a motor vehicle crash that occurred on December 12, 2022. Through the instant motion [D.I. 37], Plaintiff seeks to compel Defendant Cohan to execute medical authorizations for the release of psychological records from medical providers with whom Defendant Cohan treated prior to or as a result of the underlying motor vehicle crash.[1] In addition, Plaintiff seeks to compel Defendant Cohan to produce medical records relating to treatment for physical injuries that Defendant Cohan received after the underlying incident. Defendant Cohan filed opposition to the motion but did not cross-move for a protective order.[2] The Court has considered the parties’ submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth herein and for good cause shown, Plaintiff's motion to compel is granted in part and denied without prejudice in part. By way of background, this case arises from a motor vehicle crash in Ocean City, New Jersey wherein Defendant Cohan allegedly “crashed her vehicle at a high rate of speed into the rear end of a four car line of autos stopped at the intersection of 9th Street and Bay Avenue ... without any apparent attempt to stop or slow down prior to the crash.” (Compl. [D.I. 1], p. 1, ¶ 1.) Plaintiff avers in the complaint that “[a]n open pill bottle containing three Alprazolam (‘Xanax’) tablets and forty tablets of Metformin Hydrochloride, a prescription blood pressure medication, was later found in Cohan's vehicle by police.” (Id. at p. 2, ¶ 2.) Plaintiff further alleges that Defendant Cohan told police officers responding to the accident scene that “ ‘prior to operating her vehicle, she took a handful of ... unidentified pill[s] and drank approximately a pint of vodka in an effort to commit suicide.’ ” (Id.)(quoting Ex. C [D.I. 1-3].) Plaintiff contends in this action, inter alia, that it has no obligation under the relevant insurance policies to indemnify or defend Defendant Cohan in connection with the underlying incident because the incident occurred as a result of Defendant Cohan's alleged “intentional attempt at self-harm[,]” which Plaintiff asserts falls within policy exclusions for intentional acts. (See id. at pp. 2-3, 10-11, ¶¶ 4, 39-42.) In this regard, Plaintiff avers that “[b]y intentionally consuming significant quantities of alcohol and Xanax, a controlled substance, for the stated purpose of committing suicide, and then driving ... [the] actions fall within the Auto Policy's exclusion from coverage ‘for any insured [w]ho intentionally causes bodily injury or property damage.’ ” (Id. at pp. 10-11, ¶ 39.) Further, Plaintiff seeks a declaration that it has no obligation to provide Defendant Cohan with personal injury protection (hereinafter, “PIP”) coverage because the policy contains an exclusion for bodily injuries sustained while “committing a high misdemeanor or felony” or “while acting with specific intent of causing injury or damage to himself or others” and also excludes bodily injury sustained by an insured while occupying a vehicle insured for PIP. (Id. at p. 3, ¶ 4.) *2 In her answer to the complaint, Defendant Cohan denies the statements in the police report that are attributed to her, including those concerning her purported attempt to commit suicide, but admits that she was charged with DWI, reckless driving, careless driving and fourth degree assault by auto. (Answer to Compl. and Separate Defenses [D.I. 8], p. 1, ¶ 2.) Furthermore, Defendant Cohan asserts as a Tenth Separate Defense that she “had no intent to harm herself or other third parties” and as an Eleventh Separate Defense that her conduct “was neither extreme nor outrageous.” (Id. at p. 7.) Plaintiff now seeks to compel production of authorizations and medical records from Defendant Cohan, arguing that the requested information is relevant to the claims and defenses in this case. (Mem. of Law in Supp. of Pl. Vault Reciprocal Exchange's Mot. to Compel (hereinafter, “Pl.’s Br.”) [D.I. 37], p. 5.) Specifically, Plaintiff seeks to compel a response to Request for Production No. 1, which requests “[c]opies of all medical records, reports, and bills of any health care provider, including physical therapists, chiropractors, doctors, nurses, hospitals, clinics, or the like for which Defendant received treatment as a result of this collision.” (Pl.’s Br., Ex. A [D.I. 37-1], p. 9.) Plaintiff also seeks to compel a response to Request for Production No. 2, which requests that Defendant Cohan “[e]xecute and return to counsel for Vault the attached HIPAA-compliant medical authorizations enabling counsel for Vault to obtain Defendant Brenda Cohan's medical records, including, but not limited to, records pertaining to the providers identified in Interrogatories 2, 4, 6, 7, 9 and 10.”[3] (Id. at pp. 9-10.) With respect to post-incident medical records, Plaintiff notes Defendant Cohan's written discovery responses in which she stated that she received treatment at Atlantic Regional Medical Center for injuries she sustained in the crash. (Pl.’s Br. at p. 4.) Plaintiff argues that such records are “relevant and at issue because Cohan has submitted a personal injury protection [ ] claim for reimbursement for her own medical treatment resulting from” the underlying incident. (Id. at p. 6.) Plaintiff also argues that these records will demonstrate Defendant Cohan's “physical condition and state of mind prior to and during the Underlying Incident” which are relevant to the issue of intent in this case. (Id. at p. 5.) With respect to psychological records, Plaintiff notes Defendant Cohan's written discovery responses in which she stated that she treated at the Pines in AtlantiCare for anxiety and depression prior to the underlying motor vehicle crash. (Id. at p. 4.)[4] Plaintiff argues that such records are relevant to its allegations that the insurance policies at issue preclude coverage in light of the “intentional and criminal” nature of Defendant Cohan's conduct and Defendant Cohan's affirmative defense that she had no intent to harm herself or others. (Id. at pp. 5, 7.) Plaintiff contends that even if such records are privileged, disclosure is nonetheless warranted because Plaintiff has a legitimate need for the records to understand Defendant Cohan's “physical condition and state of mind” at the time of the underlying incident. (Id. at p. 7.) Plaintiff further argues that it cannot obtain this information from another source. (Id.) *3 In opposition to the motion, Defendant Cohan focuses solely on the psychologist-patient privilege, asserting that psychological records can only be disclosed when there are no other means available to obtain such information. (See Letter from David R. Castellani, Esq. [D.I. 44], Jan. 30, 2024, p. 1.) Defendant Cohan contends that the information sought by Plaintiff can be obtained from “less intrusive” sources, such as “depositions of the individuals on the scene of the accident, criminal discovery, etc.” (Id. at pp. 1-2.) Defendant Cohan asserts that public policy favors the psychologist-patient privilege and that an “atmosphere of confidence and trust” encourages a patient to “make a frank and complete disclosure of facts, emotions, memories, and fears.” (Id. at p. 2.) Defendant Cohan argues that if psychological records can be disclosed in subsequent litigation, “the Court would [ ] be setting a standard that deters the public from seeking mental health assistance in the form of therapy as individuals would not feel safe ... going to therapy if they had knowledge that the privilege ... can be overridden due to a mere request by an outside party.” (Id.) In reply, Plaintiff notes that Defendant Cohan does not address, let alone oppose, production of post-incident medical records, as her opposition addresses only the psychologist-patient privilege. (Pl.’s Reply Br. in Further Supp. of its Mot. to Compel [D.I. 45], p. 2.) Plaintiff therefore argues that Defendant Cohan should be compelled to produce the requested medical records concerning treatment for physical injuries sustained in the incident. (Id.) In addition, Plaintiff contends that Defendant Cohan has affirmatively placed her mental health condition at issue by asserting as an affirmative defense that she did not have any intention of hurting herself or others. (Id. at p. 4.) In response to Defendant Cohan's assertion that discovery concerning her mental state can be obtained through means other than psychological records, Plaintiff notes that Defendant Cohan, in her interrogatory answers, “responded that she does not remember anything prior to the Underlying Incident.” (Id. at p. 5.) In light of Defendant Cohan's professed inability to remember details prior to the underlying incident, Plaintiff contends that the requested information cannot be obtained through alternative sources, such as Defendant Cohan's deposition. (Id.) Plaintiff also argues that there is a statutory exception to the New Jersey psychotherapist-patient privilege for an action to recover damages resulting from a person's criminal conduct. (Id.) The Court first addresses Plaintiff's request to compel Defendant Cohan to produce post-incident medical records. As the party seeking to compel such discovery, Plaintiff “bears the initial burden of proving the relevance of the requested information.” Trask v. Olin Corp., 298 F.R.D. 244, 263 (W.D. Pa. 2014); see also Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000) (“The party seeking discovery has the burden of showing that the information sought is relevant to the subject matter of the action[.]”). Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Further, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. As noted above, Plaintiff contends that post-incident medical records are “relevant and at issue because Cohan has submitted a personal injury protection [ ] claim for reimbursement for her own medical treatment resulting from the Underlying Incident.” (Pl.’s Br. at p. 6.) However, this case primarily seeks a declaration that Plaintiff is not required to defend or indemnify Defendant Cohan in connection with the underlying incident in light of Defendant Cohan's intent and state of mind at the time of the motor vehicle crash. (See id. at p. 2.) Further, while Plaintiff alleges in the complaint that it is not required to reimburse Defendant Cohan for any PIP or medical expense benefits, this claim is likewise based on the purportedly intentional and/or criminal nature of Defendant Cohan's conduct and on a general policy exclusion for bodily injury sustained while occupying an insured vehicle. (See Compl. at p. 3, ¶ 4.) Plaintiff has not denied PIP coverage on the basis that the specific nature or type of treatment for which Defendant Cohan seeks coverage is outside the scope of the policy. Therefore, while the Court finds that post-incident medical records for the thirty-day period following the incident are discoverable insofar as they may contain evidence of Defendant Cohan's physical condition or state of mind or intent at the time of the underlying incident, the Court concludes that Plaintiff fails to demonstrate the proportionality of additional subsequent medical treatment records at this time. Accordingly, the Court shall grant in part and deny without prejudice in part the motion to compel with respect to post-incident medical records.[5] *4 The Court next considers the relevance of Defendant Cohan's psychological records for treatment received prior to or in connection with the underlying incident. The Court finds that Defendant Cohan's psychological records may contain information concerning Defendant Cohan's state of mind or intent at the time of the underlying incident, which is relevant both to Plaintiff's allegations in the complaint that Defendant Cohan acted with intent to inflict self-harm and Defendant Cohan's affirmative defense that she had no intention of harming herself or others at the time of the underlying incident. Specifically, as noted by Plaintiff, the records “may contain evidence as to what physical and mental condition Cohen was in at the time of the Underlying Incident” and may demonstrate Defendant Cohan's “awareness of the effects of the combination of [prescription] medications with alcohol and any warnings or instructions she may have received from her physicians regarding their use[,]” as well as “information showing any medications she was prescribed, or was not prescribed, that were ultimately found in her system at the time of the crash[,]” all of which are relevant to Defendant Cohan's intent on the date of the underlying incident. (Pl.’s Br. at pp. 5-6.) In so finding, however, the Court concludes that the temporal scope of Plaintiff's request for psychological records is overly broad. As set forth above, Plaintiff seeks to compel Defendant Cohan to sign medical authorizations for all providers identified in response to Interrogatories 2, 4, 6, 7, 9 and 10, and Interrogatories 9 and 10 sought identification of providers for a five-year time period. During a hearing on December 13, 2023, Plaintiff's counsel represented that Plaintiff would limit the request to treatment received within one year of the underlying incident. The Court finds this temporal limitation appropriate and concludes that records of psychological treatment for the one-year period preceding the underlying incident fall within the confines of discoverable information under Rule 26. In addition, like the post-treatment medical records, the Court finds that records concerning any psychological treatment that Defendant Cohan obtained in the thirty-day period following the underlying incident are also relevant under Rule 26 standards. To the extent Plaintiff seeks authorizations for the release of psychological records beyond this time period, the request is denied without prejudice. The Court next considers whether Defendant Cohan's psychological records, notwithstanding their relevance, are protected from disclosure by the psychologist-patient privilege, which requires analysis of the appropriate privilege law applicable to the present dispute. “A federal court sitting in a case based on diversity jurisdiction must apply the choice-of-law rules of the forum state to determine what law applies.” R.M.W. by Wolfe v. Homewood Suites by Hilton Mt. Laurel, Civil No. 09-400, 2012 WL 13186031, at *10 (D.N.J. June 28, 2012) (citing Kaneff v. Del. Title Loans, Inc., 587 F.3d 616, 621 (3d Cir. 2009)). The parties do not address the choice of law issue and both parties cite New Jersey law in connection with the instant motion. The Court finds that New Jersey privilege law applies for purposes of determining this discovery motion. Pursuant to N.J.S.A. § 45:14B-28, “confidential relations and communications between and among a licensed practicing psychologist and individuals ... in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.” N.J. Stat. Ann. § 45:14B-28. The Superior Court of New Jersey, Appellate Division considered the scope of this privilege in Arena v. Saphier, 492 A.2d 1020 (N.J. Super. Ct. App. Div. 1985). In Arena, the plaintiff brought a medical malpractice claim in which she alleged that the defendant physicians “failed to properly diagnose and treat plaintiff's ectopic pregnancies[.]” Arena, 492 A.2d at 1021. The Arena plaintiff sought damages for emotional distress and depression allegedly resulting from the defendants’ negligent conduct. Id. The Appellate Division in Arena considered whether the consultation notes of the plaintiff's psychologist were protected from pretrial disclosure by the psychologist-patient privilege, as codified as set forth above. The Appellate Division noted that “the discoverability of the psychologist's consultation notes should be considered within the context of the more limited waiver doctrine applicable to the attorney-client privilege[,]” as “[t]he nature of the psychotherapeutic process is such that full disclosure to the therapist of the patient's most intimate emotions, fears and fantasies is required.” Id. at 1024-25. While recognizing the heightened degree of protection afforded to mental health records,[6] however, the Appellate Division in Arena also recognized that as a matter of fairness, “a patient should not be permitted to establish a claim while simultaneously foreclosing inquiry into relevant matters.” Id. at 1025. To strike a balance between these competing concerns, the Appellate Division concluded in Arena that when the patient places mental or emotional problems “in issue,” fairness dictates “at least limited disclosure of otherwise confidential communications.” Id. *5 In deciding whether the psychologist-patient privilege has been waived, New Jersey courts apply the three-part test set forth in In re Kozlov, 398 A.2d 882, 887 (1979). Kinsella v. Kinsella, 696 A.2d 556, 569 (N.J. 1997). The three factors a party seeking to pierce the privilege must establish are: “(1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) by a fair preponderance of the evidence, the party must show that the information cannot be secured from any less intrusive source.” Id. at 572. The “typical setting” in which a privilege “has not been sustained under Kozlov is where the party claiming the privilege has implicitly waived it by putting the confidential communications ‘in issue’ in the litigation.” Id. at 568. “New Jersey courts have declined to treat the ‘in issue’ doctrine as operating automatically based on the cause of action pled. Instead they have used Kozlov's three-part test to limit the waiver in scope to that which is necessary to serve the ‘public interest,’ according to the facts of the case.” Id. at 569. Here, the Court concludes that Defendant Cohan has waived the psychologist-patient privilege afforded to her psychological records. The Court recognizes that Defendant Cohan, unlike the plaintiff in Arena, did not bring this civil action and therefore does not affirmatively seek relief in connection with her mental condition. However, this case arises because Defendant Cohan sought coverage under an insurance policy that precludes coverage for intentional acts, and she has not only denied the allegations in the complaint concerning her intent to commit suicide but also set forth as an affirmative defense that she “had no intent to harm herself or other third parties.” (See Answer [D.I. 8], pp. 2, 7.) Defendant Cohan has therefore taken the affirmative step of placing her mental state in issue. Moreover, in light of Defendant Cohan's affirmative defense, the Court finds that all three Kozlov elements are satisfied here. First, psychological records of treatment Defendant Cohan received prior to or arising out of the underlying incident are likely to contain information concerning whether Defendant Cohan contemplated self-harm, which is relevant to her affirmative defense that she had no intention of harming herself or others as set forth above. Furthermore, if the psychological records are not produced, Defendant Cohan could “divulge whatever information is favorable to [her] position” concerning her intent and state of mind and “assert the privilege to preclude disclosure of the detrimental facts.” See United Jersey Bank v. Wolosoff, 483 A.2d 821, 828 (N.J. Super. Ct. App. Div. 1984). Defendant Cohan's mental health records are therefore not only relevant, but Plaintiff has a legitimate need for disclosure of such documents. Finally, despite Defendant Cohan's assertion that information concerning her mental health can be obtained from a less intrusive source, Plaintiff has sufficiently demonstrated that such information cannot be obtained from another source. While hospital or police records may contain information concerning Defendant Cohan's level of impairment, and eyewitness testimony may inform the apparent manner in which Defendant Cohan operated the vehicle, these sources cannot identify Defendant Cohan's state of mind or intent at the time of the underlying incident. Defendant Cohan also apparently cannot testify as to her own state of mind or intent, as her written discovery responses indicate that she has “no recollection of the collision[,]” does not “remember anything immediately prior to the accident[,]” has “no recollection of the amount of pills ingested[,]” and has “no recollection of how much or whether vodka was consumed or the amount of pills ingested.” (See Pl.’s Mot., Ex. B, pp. 2, 5.) The Court thus finds that the third Kozlov factor also supports piercing of the privilege. In summary, the Court shall grant in part and deny without prejudice in part Plaintiff's motion to compel. The Court finds that Defendant Cohan's records for psychological treatment received in the one-year period preceding the underlying incident and the thirty-day period following the incident must be produced, notwithstanding any psychologist-patient privilege afforded such documents, because Defendant Cohan has affirmatively placed her mental state in issue in this case. The Court shall therefore compel Defendant Cohan to sign authorizations for the release of such records. Furthermore, medical records for treatment obtained by Defendant Cohan in the thirty-day period immediately following the underlying incident must also be produced. To the extent Plaintiff seeks through this motion any additional medical or psychological records, the motion is denied without prejudice. *6 CONSEQUENTLY, for the reasons set forth above and for good cause shown: IT IS on this 2nd day of April 2024, ORDERED that Plaintiff's motion [D.I. 37] to compel shall be, and is hereby, GRANTED in part and DENIED WITHOUT PREJUDICE in part; and it is further ORDERED that Defendant Brenda Cohan shall, by no later than April 30, 2024, execute medical authorizations provided by Plaintiff for the release of psychological records for the one-year period preceding the incident at issue in this case and the thirty-day period thereafter; and it is further ORDERED that Defendant Cohan shall produce by no later than April 30, 2024 medical records for the thirty-day period immediately following the incident at issue in this case. Footnotes [1] The Court notes that Michael Cohan is also a named defendant in this matter, but Plaintiff only seeks to compel Brenda Cohan to respond to discovery at this time. Accordingly, the Court's reference to “Defendant Cohan” herein refers to Defendant Brenda Cohan only. [2] By Order dated December 13, 2023, Plaintiff was directed to file a formal motion to compel, and the Order further provided that Defendants may cross-move for a protective order. (Order [D.I. 35], Dec. 13, 2023, p. 1, ¶ 2.) [3] Interrogatories 9 and 10, in turn, seek the names of all medical providers that treated Defendant Cohan “during the past five (5) years.” (Pl.’s Br., Ex. A, p. 5.) [4] Defendant Cohan also identified “Dr. DeMeo” as a doctor with whom she treated in the past five years, but she did not set forth a description of the condition for which she was treated by Dr. DeMeo. (See Pl.’s Br., Ex. B [D.I. 37-2], p. 2.) [5] Because Defendant Cohan did not oppose the motion with respect to post-incident medical records, she did not assert that the documents are protected from disclosure pursuant to a physician-patient privilege. [6] Specifically, the Appellate Division contrasted the highly personal nature of mental health records to other medical records, noting that “[t]he nature of psychotherapy might well justify a greater degree of confidentiality and protection than is generally afforded medical treatment of a physical condition.... We recognize that ‘[m]any physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a [psychologist] must have his patient's confidence or he cannot help him.’ ” Arena, 492 A.2d at 1024 (quoting Taylor v. United States, 222 F.2d 398, 401 (D.C. Cir. 1955)).