UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

SARA J. KUBIK, 

 Plaintiff, Case No. 15-cv-12055 

v. Honorable Thomas L. Ludington 

 

CENTRAL MICHIGAN UNIVERSITY 

BOARD OF TRUSTEES, et al., 

 Defendants. 

_______________________________________/ 

ORDER OVERRULING OBJECTIONS TO THE MAGISTRATE JUDGE’S ORDER 

DENYING MOTION TO COMPEL 

 Plaintiff Sara J. Kubik initiated this suit against Defendants Central Michigan University 

Board of Trustees, Maria Marron, Lori Brost, Timothy Boudreau, Michael Gealt, and Shelly 

Hinck on June 5, 2015. Pl. Compl., ECF No. 1. Kubik pleaded four counts: (1) sex/pregnancy 

discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e); (1) sex 

discrimination under the Elliot Larsen Civil Rights Act (ELRCA), M.C.L.A. 37.2101; (3) 

pregnancy discrimination under the ELRCA, M.C.L.A. 37.2202(1)(d); and (4) retaliatory actions 

in violation of the ELRCA and Title VII. Id. 

During the dates in question, Plaintiff Sara Kubik worked as a non-tenured, appointed, 

assistant professor at Central Michigan University (CMU). Pl. Compl. ¶ 18. Defendants Marron, 

Brost, Boudreau, Gealt, and Hinck were all either professors or administrators at CMU. See id. at 

¶¶ 5–9. Kubik alleges that she became pregnant while working at CMU and took leave on April 

15, 2013, pursuant to the Family Medical Leave Act. Id. at ¶¶ 19–21. She further alleges that, as 

a result of taking that leave, Defendants harassed and discriminated against her, including 

refusing to grant Kubik a tenure extension and deciding to not reappoint her as a professor. Id. at 

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¶ 23, 31. Defendants argue that Kubik’s request for a tenure extension was denied and she was 

not reappointed because of her unsatisfactory performance and insufficient scholarship. See Def. 

Answ. At ¶ 11, 23, 24, 27, 28, ECF No. 9. 

Kubik brought this action against Defendants on June 5, 2015. ECF No. 1. In her 

complaint, Kubik alleged that she suffered financial injury, bodily injury, and emotional and 

mental distress. Id. at ¶¶ 38, 43, 48. She further alleged that she would continue to suffer these 

same injuries in the future. Id. During discovery, Defendants requested Kubik’s medical records 

for the dates in question. Although Kubik originally planned to provide those records, she later 

stipulated to seeking only “garden-variety” emotional damages and refused to provide her 

medical records, including those from her psychologist, Tom Olson. Pl. Resp. to Objs. at 4, ECF 

No. 36. At a hearing held on March 8, 2016, Kubik further stipulated that she was not seeking 

damages for physical injuries in connection with the emotional distress and that she was not 

planning to call medical professionals as witnesses. Transcript at 8–11, ECF No. 34. On 

February 5, 2016, Defendants filed a motion to compel release of Kubik’s medical records. ECF 

No. 24. That motion was referred to Magistrate Judge Morris, ECF No. 25, who denied the 

motion to compel on March 17, 2016. ECF No. 32. Defendants timely objected to Judge Morris’ 

order, and those objections will now be considered. 

I. 

The decision and order of a non-dispositive motion by a magistrate judge will be upheld 

unless it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 

72(a); Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993). A district judge shall 

consider such objections and may modify or set aside any portion of the magistrate judge’s order 

found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). “The ‘clearly erroneous’ 

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standard applies only to the magistrate judge’s factual findings; legal conclusions are reviewed 

under the plenary ‘contrary to law’ standard . . . . Therefore, [the reviewing court] must exercise 

independent judgment with respect to the magistrate judge’s conclusions of law.” Haworth, Inc. 

v. Herman Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v. Glaser, 785 F. 

Supp. 684, 686 (S.D. Ohio 1992)). “An order is contrary to law when it fails to apply or 

misapplies relevant statutes, case law, or rules of procedure.” Ford Motor Co. v. United States, 

2009 WL 2922875, at *1 (E.D. Mich. Sept. 9, 2009)). 

Objections to a magistrate judge’s non-dispositive order must be both timely and specific. 

See Slater v. Potter, 28 F. App’x 512, 512 (6th Cir. 2002). A general objection, or one that 

merely restates the arguments previously presented, does not sufficiently identify alleged errors 

on the part of the magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 

(E.D.Mich.2004). An “objection” that does nothing more than disagree with a magistrate judge’s 

determination, “without explaining the source of the error,” is not considered a valid objection. 

Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without 

specific objections, “[t]he functions of the district court are effectively duplicated as both the 

magistrate and the district court perform identical tasks. This duplication of time and effort 

wastes judicial resources rather than saving them, and runs contrary to the purposes of the 

Magistrate’s Act.” Id. Defendants have raised two objections to the magistrate judge’s decision. 

A. 

First, Defendants argue that the magistrate judge did not address Plaintiff’s refusal to 

produce medical records relevant to Kubik’s physical injuries. The magistrate judge’s opinion 

addresses whether Kubik has waived her psychotherapist-patient privilege by alleging damages 

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from emotional or mental distress. It does not directly address whether Kubik should be 

compelled to produce her non-psychological medical records. 

There is no physician-patient privilege under federal law. Gen. Motors Corp. v. Dir. of 

Nat. Inst. for Occupational Safety & Health, 636 F.2d 163, 165 (6th Cir. 1980) (citing Whalen v. 

Roe, 429 U.S. 589 at 602, n. 28 (1977)). And although a psychotherapist-patient privilege exists, 

it covers only “confidential communications made to licensed psychiatrists and psychologists.” 

Jaffee v. Redmond, 518 U.S. 1, 15 (1996). Defendants seek medical records from Dr. Tom 

Olson, a psychologist, Dr. Mark Maslovich, a gynecologist, and Dr. Clint Cornell, a general 

practitioner. Pl. Resp. Inter. At 10, ECF No. 36, Ex. 2. Because only the records from Dr. Olson 

are conceivably covered by the psychotherapist-physician privilege, Kubik cannot rely on that 

privilege in refusing to produce the records from Dr. Maslovich and Dr. Cornell. Instead, 

Defendants are entitled to discovery of the non-privileged medical records if they are “relevant to 

any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26. See 

also Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998) (“The scope of discovery 

under the Federal Rules of Civil Procedure is traditionally quite broad.”). 

The magistrate judge weighed the need for the psychotherapist records under the 

threshold test for relevance, but did not explicitly analyze the need for the non-privileged 

medical records. The magistrate judge’s analysis focused solely on the relevance of the medical 

records to Kubik’s mental and emotional distress claims. But Kubik is also alleging claims of 

physical injury and distress. See Compl. At ¶¶ 38, 43, 48, 56. In her initial disclosures, Kubik 

alleged that her damages include “physicial effects” and payment for “doctor’s visits and 

treatment.” Initial Discl. at 7, ECF No. 27, Ex. 1. 

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However, during the hearing held on March 8, 2016, Kubik’s attorney stipulated on the 

record that Kubik was not seeking damages based on physical consequences from the emotional 

harm and was not planning to call medical personnel as witnesses. See Transcript at 9–10. 

Kubik’s attorney explained that the physical damages were plead for “taxation reasons” and that 

she was willing to “remove that from [the] complaint” if necessary. Id. at 10–11. Given this 

stipulation on the record, the medical records from Kubik’s gynecologist and family doctor are 

not relevant. Kubik has never indicated that she plans to call them as witnesses, see Pl. Resp. 

Inter. at 2–6, and because she is no longer seeking damages for physical injuries, any records 

they might possess are not “reasonably calculated to lead to the discovery of admissible 

evidence.” Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 389 (E.D. Mich. 2012). Given 

Kubik’s stipulations, the magistrate judge’s decision to not directly address whether Defendants 

were entitled to non-privileged medical records relating to Kubik’s alleged physical injuries was 

not clearly erroneous. 

B.

Second, Defendants argue that the magistrate judge erred in ruling that Kubik did not 

waive her psychotherapist-patient privilege by alleging emotional and mental distress in her 

complaint. Federal common law governs questions of privilege in federal question cases. 

Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992). In the Sixth Circuit, private 

communications between psychotherapists and their clients are privileged under Fed. R. Ev. 501. 

In re Zuniga, 714 F.2d 632, 639 (6th Cir. 1983). However, a plaintiff waives that 

psychotherapist-patient privilege when he or she puts their emotional state at issue in the case. 

Maday v. Pub. Libraries of Saginaw, 480 F.3d 815, 821 (6th Cir. 2007). A plaintiff who asserts 

mental injuries places his or her mental state in controversy.” Schlagenhauf v. Holder, 379 U.S. 

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104, 119 (1964). Most courts to consider the issue have adopted an exception to this general rule 

where the plaintiff merely seeks “garden variety” emotional distress damages, holding that the 

plaintiff does not waive their psychotherapist-patient privilege by doing so. See Salser v. 

Dyncorp Int'l, Inc., No. 12-10960, 2014 WL 7139886, at *2 (E.D. Mich. Dec. 12, 2014). Courts 

have held that a plaintiff alleges more than mere “garden variety” damages if any of the 

following factors are present: 

1) a cause of action for intentional or negligent infliction of emotional distress; 2) 

an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of 

unusually severe emotional distress; 4) plaintiff’s offer of expert testimony to 

support a claim of emotional distress; and/or 5) plaintiff’s concession that his or 

her mental condition is “in controversy” within the meaning of Rule 35(a). 

Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995). 

 The magistrate judge found that Kubik did not put her mental state at issue because she 

stipulated to seeking only “garden-variety” damages. Order at 11, ECF No. 32. Defendants argue 

that Kubik waived the psychotherapist-patient privilege because Michigan law governs the 

pendant state claims and Michigan law provides that a plaintiff waives the privilege whenever he 

or she seeks damages for emotional distress. But when an action is brought in federal court based 

on federal question jurisdiction, federal privilege law will apply even to pendant state claims. 

Hancock, 958 F.2d at 1373. Accordingly, the magistrate judge did not err by applying federal 

privilege law. 

 Defendants also argue that Kubik waived the privilege because her complaint claims 

damages for emotional and mental distress. However, as the magistrate judge rightly 

emphasized, Kubik has waived the right to recover damages for any emotional distress beyond 

“garden-variety.” When a plaintiff waives the right to recover damages for more than “gardenvariety” emotional distress, the plaintiff retains the psychotherapist-patient privilege. See

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Sunegova v. Vill. of Rye Brook, No. 09-CV-4956 KMK, 2011 WL 6640424, at *10 (S.D.N.Y. 

Dec. 22, 2011); Gatsas v. Manchester Sch. Dist., No. CIV. 05-CV-315-SM, 2006 WL 1424417, 

at *1 (D.N.H. May 17, 2006). The magistrate judge’s ruling was not clearly erroneous. 

Finally, Defendants argue that the magistrate judge erred by refusing to allow Defendants 

access to Kubik’s medical records for the purpose of exploring whether Kubik’s mental distress 

was related to outside stressors. Defendants’ arguments primarily assert that medical records are 

discoverable for this purpose when plaintiffs put their emotional state at issue. The cases 

Defendants cite either did not involve claims for “garden-variety” emotional damages or adopted 

the minority approach to whether claims for “garden-variety” emotional damages waives 

psychotherapist-patient privilege. See Maday v. Pub. Libraries of Saginaw, 480 F.3d 815, 821 

(6th Cir. 2007) (plaintiff put social worker’s records at issue by introducing some of them 

herself); Jones-McNamara v. Holzer Health Sys., Inc., No. 2:13-CV-616, 2015 WL 196415, at 

*1 (S.D. Ohio Jan. 15, 2015) (concluding that plaintiff was not seeking only “garden-variety” 

emotional damages); E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D. Cal. 

2009) (psychotherapist-patient privilege waived because emotional distress damages was the 

only remedy sought); Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 660 (D. Kan. 2004) 

(adopting the minority approach). 

Thus, Defendants are promulgating the same argument the magistrate judge considered 

and rejected in favor of the majority approach, which holds that requests for “garden-variety” 

emotional damages does not waive the psychotherapist-patient privilege. To the extent 

Defendants argue that the magistrate judge should have balanced the probativeness of the records 

against Kubik’s privacy concerns, the magistrate judge properly relied on the Supreme Court’s 

holding that the psychotherapist-patient privilege does not depend on the trial judge’s 

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determination that the patient’s interest in privacy outweighed the defendant’s need for 

disclosure. Jaffee v. Redmond, 518 U.S. 1, 17 (1996). Thus, the magistrate judge’s refusal to 

consider the importance of the medical records to the Defendants’ case was not clearly 

erroneous. Defendants’ second objection will be overruled. 

II 

Accordingly, it is ORDERED that Defendants’ objections, ECF No. 35, are 

OVERRULED. 

Dated: August 22, 2016 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on August 22, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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