good morning please be seated will begin with the st case on calendar year versus the employee health of rural systems good morning your honour's may please the court my name is earl hall and i represent appellant wesley gear i want respectfully brings to issues before this honorable court st was licensed clinical social worker joseph di maria owner employee health referral systems entitle to absolute immunity when he testified against his employee assistance program client wesley gere a tenured teacher of social studies recognized for his excellence in teaching by local state and federal government authorities at a th discharge hearing and if not was a court billows denial of mr gear's motion to amend based on a mistake of law and an abuse of discretion and july th two thousand and eighteen u s district court held that all claims against and is wholly owned subsidiary employee health referral services were dismissed based soley on the court's flow holding that and i quote the marias testimony was sufficiently akin to that given by a witness in a judicial proceeding to render him a therapist and his client was set forth and the verses read by the u s supreme court they talked about the necessity of having to have a trusting confident confidential relationship in order for therapy to have any possibility by testifying against his client to maria completely abrogated that constitute destroyed it that and the balderas of that confidentiality despite the arguments of my colleagues the set forth in case he learned that was what it was for several reasons st of all at the hearing he learned that the all the information that was going to be testified to had already been given to codefendant gates childlike school district in tw fourteen which was within the statute of limitations period which is another issue but demur riya who ran a confidential employee assistance program met with a school district and he told the school district  about concerns that his coworkers had about his medication about their their assessment of his condition so although that information was already out of the bag i have a different question for us which is even even assuming that you are the court the rd department said that they recognize confidentiality by a social worker as a tort sounding and professional malpractise that's that's one good source your honor also and the case in the case isn't very clear and that social worker is one of the learned professions and a cleric which they held did not have a right to confidentiality no one was the circumstance that the court dealt with in a harley  circumstance like like this one or not was the was the defendant in that case a treating doctor of the of the no in that case your honor the the the plaintiff was a cleric a minister and the court distinguished between a minister which they said was not one of the learned professions and other professions under the c p l are social workers doctors attorneys who were members of the learned profession and they set out their requirements for the learned profession in that opinion so clearly they distinguish between a cleric who had no duty of confidentiality and the learned professions which did it but even if we were social workers actionable as a tort and the case law again starting with my my question is one of my questions is do you have a law that supports the proposition that there was a duty of confidentiality arising out of this kind of relationship as opposed to a relationship where someone goes to a to have to a doctor or psychiatrist for yes your honor medical because again respectfully i would i would refer the distinction would be meaningless and would harm the the well being of patients so for cases that refer to psychologist and and psychiatrist and social workers the case law should should criminal prosecutions one woman missing because your honor in that and that's it you know two things in that situation it talks about prosecutions in this this was not a prosecutor this criminal prosecutions was in his administrati superintendent of schools and he went to mr di maria l c s deputy maria himself and he asked them there are things about the the hipaa release and you confidentiality koreans that i don't understand and he listed those things and he was or whether he was complying with the recommendations would or could be disclosed that in an affidavit that was before the court and it constitutes a matter of fact not a matter of law for the district  clearly was told that is the big the ambiguous documents that were put before him did not allow the l c s w di maria just to share any information even from him or from his coworkers this morning the morning may please the court my name is julian farrar and the attorney for a pelleas joseph di maria and employee health referral services i'm going to refer to them as e h s today this really comes down to a matter of absolute immunity arising out of testimony at a quasi judicial that doesn't answer does it the the aspect of the case that deals with your client's delivery of information prior to his testimony that's part of it isn't that part well that the delivery of the report of in two thousand and fourteen by mr di maria was specifically authorized in the authorization signed by mr gere in february of and fourteen it allowed mr di maria to communicate with the school district and mr brandon aspects of the employee assistance program and allowed mr di maria to divulge such things as even his diagnosis of mister of mr gear something that was never divulged so there's there are multiple layers of issues going on there is st this idea of absolute immune from are immune from sue rising from that testimony nd if you look at the transcript of the of mr de maria's testimony there was absolutely no disclosure of confidential information of confidential information it included concerns of mr gear's coworkers which is not confidential information mr gear included recommendations that mr di maria was going to w making with respect to if it had included if if we were to disagree with you one last point that you were making and we considered some of what was disclosed to be confidential information  information that would be confidential if it's legal confidential confidentiality applies here do you agree with the plaintiff's proposition that it would be illegal for the defendant to disclose respect to mr gere he he authorized mr gere to give certain information to the school district which meant which mr de marie i'm sorry which mr di maria did in connection with his asserted his privilege privileges is the is the right of the two of the client to enforce and it must be enforced otherwise a it's waived mr mr gear with mr gear or that those be documented and addressed with mr gear immediately it was it was not treatment recommendations or anything like  did not include any allegations with respect to actions by mr di maria prior to that three thousand and twenty a hearing in that respect mr di mara his counsel we had back period for the statute of limitations purposes wouldn't apply and so the three year statute which which ran between the filing of the st amended complaint and the proposed nd amended complaint we believe precludes plaint with plaintiff if we if we look at for a minute at the the disclosure or they get the alleged disclosure of a confidential information creates the fact that the plaintiff has not at all objected to the accuracy of the transcription and actually put the transcription in the record makes the any disclosures which would have taken place a matter of law for the court to decide not a matter of fact because if it can it can be read in the fact that there are no disclosures are is available so to summarize the from any claims arising out of that proceeding mr mr gere waived any privilege that he had with respect to the social worker privilege by failing to raise that privilege at the hearing and original complaint i won't waste my time going through each of those that they're there for the court to review secondly with respect to assessment it was l c has w d a maria himself and his transcript to several times referred to his assessment use that word in the transcript his assessment was that he did testing on the on my client and he found no basis for a mental health issue that clearly cuts against the interest my client my client is saying that he was discharged in violation of the americans with disabilities act because he was disabled and now he's got his confidential counselor who said he did assessments of him and there's nothing wrong with him so clearly he did violate that similarly with respect to things that he actually said that were that w fact your honour's and that consistent and that light here's what here's what di maria did high here's how he supported the contention of the district for terminating my client because because they said that he was he was his his professional mannerisms were intimidating to others he said and i quote there were concerns about either some of his classroom activities their relationships with him and an incident which occurred in the previous year june of thirteen transcript  those are the things that he said that's clearly supported the theory of discharge of the district those are the things he got from his confidential intervention employees this is program intervention he he he swore to he said to my client i confidential what i get it from your coworkers or you it's all part of the confidential a p program with respect to the the types of information that we're confidential if if your honour's would refer to the a his own document they talk about even a name as being confidential and private information protected health information the courts again have ruled that that the client's name is is protected in the reasoning of the court was that there was a stigma that attaches to two mental health services that's exactly what codefendant gates child i wanted to put before the arbitrator the number of sessions he i will respect the absolute immunity if the court were to accept that that any privilege whether it be for an attorney for a physician for a social worker would be abrogated now aren't you made that argument thank you thank you both will lower reserve decision