Widow Secures a Victory in Wrongful Death Case

(CN) - The wife of a man shot dead by two policemen cannot demand copies of the officers' fitness-for-duty evaluations, but may access psychological reports that were submitted as part of a disability claim filed by one of the men, a magistrate judge ruled.

Oda Pool and Stan North were employed by the Rockford, Ill. Police Department when they fatally shot Mark Barmore on Aug. 24, 2009. Maryann Barmore sued the officers and the City of Rockford for wrongful death.

At issue before Magistrate Judge P. Michael Mahoney was whether Barmore could compel the officers to tender copies of their evaluations and to testify about them.

At their depositions, both defendants refused to answer certain questions based on claimed privileges, Mahoney wrote in his 8-page order, recalling the case's procedural history.

"Defendant Poole was asked at his deposition about a psychological fitness for duty evaluation that he underwent related to his administrative leave," Mahoney wrote. "When asked about the result of the evaluation, Defendant Poole was instructed not to answer based on the physician-patient privilege.

"Similarly, Defendant North testified that he underwent a psychological evaluation that resulted in a recommendation that he should not return to law enforcement," Mahoney continued. "Defendant North was also seen by a professional for treatment. When asked about the conclusions of the evaluation, North refused to answer based on a physician-patient or psychotherapist-patient privilege. Both defendants refused to tender a copy of the fitness for duty evaluations."

Considering Barmore's requests, Mahoney said, "[a] threshold question is whether defendants had a reasonable expectation that the communications underlying the examining psychotherapist's evaluation would remain private."

"In the context of police communications with examining psychotherapists, the Supreme Court indicated that the community has an interest in ensuring that trained police officers in need of treatment do not remain on the job," he continued. "It would follow that when officers have a reasonable expectation that their communications with an examining psychotherapist for the purpose of a fitness-for-duty evaluation will remain confidential, their communications should be privileged."

Therefore, the judge found both defendants' psychological evaluations to be privileged information.

However, when Officer North applied for disability benefits from the Rockford Police Pension Fund, he submitted evaluations from three different psychiatrists.

Referring to these psychological reports, Mahoney said, "While defendant North had a reasonable expectation that the substance of his communications would remain out of the general public, it is clear he expected some information to be released to some third parties. The public interest justifying the privilege also requires that the information be exchanged in the course of diagnosis or treatment such that it will provide a benefit to the community.

"It is not clear that protecting the confidentiality of communications in the context of an application for disability benefits rises to the same level of public concern as the interests described by the Supreme Court. The court will not extend the psychotherapist-patient privilege to defendant North's communications with psychiatrists in relation to his application for disability," Mahoney held.

Furthermore, "North's application for disability benefits arose as a direct result of the shooting, and at least some of his communications were likely to relate to the events at the heart of this case. Therefore, the court finds there to be at least the potential that the communications could lead to the discovery of other evidence or material that could be used for impeachment at trial," the judge said.

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