Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

ALVIN KENNEDY and 

ELIEZER FELICIANO, 

Petitioners, 

v.	 

MUNICIPALITY OF ANCHORAGE,

Respondent.	 

) 

) Supreme Court No. S-14762 

Superior Court No. 3AN-10-08865 CI 

O P I N I O N 

No. 6809 - August 16, 2013 

) 

) 

) 

) 

) 

 ) 

) 

)
 

)
 

Petition for Review from the Superior Court of the State of 

Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner, 

Judge. 

Appearances: Kenneth W. Legacki, Anchorage, for 

Petitioners. Linda J. Johnson, Clapp, Peterson, Tiemessen, 

Thorsness & Johnson, LLC, Anchorage, Todd K. Sherwood, 

Assistant Municipal Attorney, and Dennis A. Wheeler, 

Municipal Attorney, Anchorage, for Respondent. Jeffrey J. 

Barber, Barber & Banker, LLC, Anchorage, for Amicus 

Curiae Alaska Association for Justice. 

Before: Fabe, Chief Justice, Winfree, Maassen, and Bolger, 

Justices. [Stowers, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

Two former police officers brought claims against the Municipality of 

Anchorage for racial discrimination, alleging a hostile work environment in violation of 
 

 

 

 

 

 

 

 

 

state law. The officers claimed damages for mental anguish, and the Municipality sought 

discovery concerning the nature of their mental anguish claims. But the officers refused 

to comply with these discovery requests, invoking the physician and psychotherapist 

privilege. The Municipality moved for an order to compel the officers to sign releases 

authorizing the disclosure of medical, pharmacy, and psychological counseling records, 

which the superior court granted. The officers then petitioned this court for review of 

the order. Upon review, we conclude that the assertion of garden-variety mental anguish 

claims in an employment discrimination case does not automatically waive the physician 

and psychotherapist privilege. 

II. FACTS AND PROCEEDINGS 

A. The Officers’ Claims Under AS 18.80.220 

Alvin Kennedy and Eliezer Feliciano (the officers) were police officers with 

the Anchorage Police Department (APD) who sued the Municipality of Anchorage (the 

Municipality) for racial discrimination and retaliation. Kennedy is African-American, 

and Feliciano is Hispanic. They alleged that the Municipality violated state law because 

APD created a hostile work environment for the officers, in which they were treated 

disparately because of their races.1 The alleged discrimination includes racially-profiled 

traffic stops, disparate discipline for questionable investigative searches, hostile remarks 

and actions concerning the undercover clothing worn by minority officers, reassignment 

from other units, denial of performance pay increases and promotions, and a retaliatory 

police investigation. Both claim damages for mental anguish. 

In response to discovery requests from the Municipality, each officer stated 

how the alleged discrimination had affected him. Kennedy reported that he was “very 

See AS 18.80.220(a)(1) (prohibiting employment discrimination on the 

basis of race). 

-2- 6809 

1 
 

 

 

 

 

 

 

angry, disappointed and occasionally sad.” He stated that his “trust levels [were] very 

low” and that he was “discouraged and disappointed” by the actions of the Municipality 

and APD. 

Feliciano stated that he was “disturbed” by the alleged discrimination. He 

elaborated: 

The conduct of the APD has given me the feeling that 

everything I have done throughout my career has been for 

naught. I feel sad, resulting in lower activity and feeling 

anxious, empty, hopeless, helpless, worthless, guilty, irritable 

and restless. I have experienced insomnia, fatigue, loss of 

energy, aches and pains, and a strained relationship with my 

wife and children. 

Both officers alleged that they had to retire because of the discrimination 

they suffered at APD. Both asserted that they had not sought any medical treatment or 

counseling, nor taken any medication related to their mental anguish claims. 

B. Proceedings Below 

The officers filed a complaint in June 2010 alleging employment 

discrimination. They amended this complaint in June 2011 to include claims for 

retaliation and mental anguish. The Municipality sought discovery, requesting that the 

officers (1) identify all medical professionals, counselors, and pharmacies that had 

provided them services since 2005; (2) produce copies of all medical and counseling 

records since 2005; and (3) sign releases for the same information. The officers refused 

to comply with these requests. 

In March 2012 the Municipality filed a motion to compel the officers to 

sign releases for medical, counseling, and pharmacy records. The Municipality argued 

that it was entitled to discovery of the officers’ medical records because the officers had 

put their medical histories at issue by seeking damages for mental anguish. The 

Municipality contended that such records were necessary to determine whether there was 

-3- 6809
 
 

 

 

 

 

 

any medical evidence of mental anguish and whether the officers’ alleged mental anguish 

was caused by other factors unrelated to their discrimination claims. 

The officers opposed the motion to compel. They asserted that they had not 

received any treatment or medication in response to the alleged racial discrimination, and 

they would not rely on expert medical testimony to establish damages. They argued that 

because they merely asserted garden-variety mental anguish claims, there was no waiver 

of the physician and psychotherapist privilege. The superior court granted the 

Municipality’s motion to compel and ordered the officers to provide the requested 

medical releases. 

We granted review, directing the parties to brief the following issues: 

(1) Should the assertion of garden-variety mental anguish claims in employment 

discrimination cases automatically waive a claimant’s physician and psychotherapist 

privilege? (2) If not, (a) How should garden-variety claims of mental anguish be 

defined? (b) Are the mental anguish claims of each of the officers in this case gardenvariety claims? (c) What are the proof limitations that should be imposed on claims for 

mental anguish where there is no waiver of the physician and psychotherapist privilege? 

III. STANDARD OF REVIEW 

Whether the assertion of garden-variety mental anguish claims 

automatically waives the physician and psychotherapist privilege is a question of law.2 

We exercise our independent judgment on questions of law, adopting “the rule of law 

that is most persuasive in light of precedent, reason and policy.”3 

2 See Mathis v. Hilderbrand, 416 P.2d 8, 8-10 (Alaska 1966) (reviewing de 

novo whether plaintiff waived the physician-patient privilege by filing suit for personal 

injury). 

3 Cf. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988) (quoting 

(continued...) 

-4- 6809
 
 

 

 

 

 

 

 

IV.	 DISCUSSION 

A.	 Mental Anguish Damages Are Available For Violations Of

 AS 18.80.220. 

Alaska Statute 18.80.220(a)(1) prohibits racial discrimination in hiring, 

promotion, compensation, and other terms, conditions, or privileges of employment. In 

Johnson v. Alaska State Department of Fish & Game, we held that damages for mental 

anguish claims are available for violations of this statute. 4 We explained that such 

damages must be limited to “actual damages — that is, to all those damages directly and 

naturally resulting, in the ordinary course of events, from the injury in question.”5 We 

held that while such damages should not be presumed, “[a] complainant’s own testimony 

may establish the fact and the quantum of damages.”6 

The Municipality suggests that our holding in Johnson supports a finding 

of waiver of the privilege in this case. It contends that applying the privilege would 

essentially exempt the officers from the requirement to prove mental anguish damages. 

This argument is not persuasive. Johnson holds that a complainant’s own testimony may 

3 (...continued) 

Brooks v. Brooks, 733 P.2d 1044, 1055 (Alaska 1987)) (citing Walsh v. Emerick, 611 

P.2d 28, 30 (Alaska 1980)). 

4 836 P.2d 896, 914 (Alaska 1991) (construing AS 22.10.020(i) to determine 

the remedies available for violations of AS 18.80). 

5 Id. at 915 (quoting Mitchell v. Seaboard Sys. R.R., 883 F.2d 451, 453 (6th 

Cir. 1989)) (internal quotation marks omitted) (citing Brewster v. Martin Marietta 

Aluminum Sales, Inc., 378 N.W.2d 558, 569 (Mich. App. 1985)). 

6 Id. (citing Cullen v. Nassau Cnty. Civil Serv. Comm’n, 425 N.E.2d 858, 861 

(N.Y. 1981)). 

-5-	 6809
 
 

 

 

 

 

 

 

 

establish the fact and amount of damages; it did not mandate that such testimony must 

be supported by medical records or expert testimony.7 

B.	 The Assertion Of Garden-Variety Mental Anguish Claims In A 

Discrimination Case Does Not Automatically Waive A Claimant’s 

Physician And Psychotherapist Privilege. 

1.	 The physician and psychotherapist privilege 

As a general matter, the Municipality is entitled to discover any relevant, 

unprivileged information. 8 The physician and psychotherapist privilege covers 

“confidential communications made for the purpose of diagnosis or treatment of the 

patient’s physical, mental or emotional conditions.” 9 But this privilege does not apply 

“to communications relevant to the physical, mental or emotional condition of the patient 

7 See id. To the extent the Municipality makes a sufficiency-of-the-evidence 

argument, such an argument is misplaced: Because the parties have not yet presented 

evidence of their mental anguish at trial, a determination of whether such evidence is 

sufficient to support an award cannot yet be made. 

8	 Alaska Civil Rule 26(b)(1) provides: 

Parties may obtain discovery regarding any matter, not 

privileged which is relevant to the subject matter involved in 

the pending action, whether it relates to the claim or defense 

of the party seeking discovery or to the claim or defense of 

any other party, including the existence, description, nature, 

custody, condition and location of any books, documents, or 

other tangible things and the identity and location of persons 

having knowledge of any discoverable matter. The 

information sought need not be admissible at the trial if the 

information sought appears reasonably calculated to lead to 

the discovery of admissible evidence. 

9 Alaska R. Evid. 504(b). 

-6-	 6809
 
 

 

 

in any proceeding in which the condition of the patient is an element of the claim or 

defense of the patient.”10 

The critical question is whether the officers have placed their mental or 

emotional conditions at issue by asserting a claim for mental anguish damages and 

thereby waived the privilege.11 The Municipality argues that the officers’ request for 

mental anguish damages has put their mental state at issue and suggests this request 

automatically waives the privilege. The officers respond that they have asserted claims 

for only the sort of mental anguish that any normal, well-adjusted person would 

experience under the circumstances, and they consequently urge this court to hold that 

the assertion of such garden-variety mental anguish claims does not waive the privilege. 

The officers further contend that their medical records are not relevant because they did 

not seek medical treatment related to their mental anguish claims and will not rely on any 

expert testimony or medical records. 

2. The broad approach to waiver 

Other courts have not taken a consistent approach to whether mental 

anguish claims waive the physician and psychotherapist privilege. Courts taking a broad 

approach hold that the privilege12 is waived whenever the patient alleges emotional 

10 Alaska R. Evid. 504(d)(1). 

11 Cf. Trans-World Invs. v. Drobny, 554 P.2d 1148, 1151 (Alaska 1976) 

(“[W]e hold that the filing of a personal injury action waives the physician-patient 

privilege as to all information concerning the health and medical history relevant to the 

matters which the plaintiff has put in issue.”) (citing 8 JOHN H. WIGMORE, EVIDENCE 

§ 2389 (McNaughton rev. 1961); Collins v. Blair, 268 N.E.2d 95 (Ind. 1971)). 

12 Although this is a question of first impression in Alaska, other courts have 

considered the same issue under analogous provisions of law. We therefore look to 

authority from other jurisdictions in interpreting Alaska law. 

-7- 6809
 
 

 

 

 

 

 

 

 

 

 

 

 

 

13 14 distress. The rationale behind this broad approach to waiver is rooted in fairness. 

That is, if a plaintiff claims emotional distress, then a defendant must be able to challenge 

that claim; for example, psychiatric records may point to sources of emotional distress 

other than the defendant’s conduct.15 

13 See Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 136 (E.D. Pa. 2001) 

(holding that plaintiffs alleging a violation of Title VII of the Civil Rights Act of 1964 

waived the psychotherapist privilege by alleging emotional distress); Doe v. City of 

Chula Vista, 196 F.R.D. 562, 568-69 (S.D. Cal. 1999) (holding that plaintiff in 

employment discrimination case seeking to recover $1,000,000 for severe emotional 

distress relied on her emotional condition as an element of her claim and waived the 

privilege); Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997) 

(holding plaintiff in Americans with Disabilities Act suit who alleged defendant did not 

accommodate her depression waived psychotherapist privilege). 

14 See, e.g., EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D. 

Cal. 2009) (stating that defendant “should be able to determine whether [p]laintiff’s 

emotional state may have been effected by something other than [d]efendant’s alleged 

actions”); Doe, 196 F.R.D. at 569 (“Defendants must be free to test the truth of 

[plaintiff’s] contention that she is emotionally upset because of the defendants’ 

conduct.”); Sarko, 170 F.R.D. at 130 (“[W]e agree that allowing a plaintiff to hide [] 

behind a claim of privilege when that condition is placed directly at issue in a case would 

simply be contrary to the most basic sense of fairness and justice.”) (quoting Premack 

v. J.C.J. Ogar, Inc., 148 F.R.D. 140, 145 (E.D. Pa. 1993)) (internal quotations marks 

omitted). 

15 See Fitzgerald v. Cassil, 216 F.R.D. 632, 636-38 (N.D. Cal. 2003) 

(examining rationales behind different approaches to waiver); cf. Dudley v. Stevens, 338 

S.W.3d 774, 777 (Ky. 2011), modified (June 16, 2011) (holding that claim for gardenvariety emotional damages in personal injury action waived privilege because “it would 

be fundamentally unfair to permit [plaintiff] to allege and prove mental anguish caused 

by the negligence while denying [defendants] from reviewing her mental health records 

for the possibility of pre-existing mental conditions”). 

-8- 6809
 
 

 

 

 

 

 

 

In one of the cases primarily relied upon by the Municipality, Hyde v. 

University of Michigan Regents, 

16 the Michigan Court of Appeals concluded that a 

plaintiff claiming any type of emotional distress damages in connection with his 

employment discrimination claim had waived the privilege. 17 The court found that any 

allegation of emotional distress — including “pain and suffering, mental distress, hurt 

feelings, embarrassment, and so forth” — automatically waived the privilege; and it held 

that if the plaintiff wanted to avoid waiver he must withdraw any claim for noneconomic 

damages.18 But Hyde is distinguishable because it is based in part on a provision in the 

Michigan civil rules, providing that if a party claims a medical privilege in discovery, he 

may not thereafter introduce any evidence relating to the condition for which he has 

claimed the privilege.19 Moreover, the result in Hyde has been criticized by another 

Michigan appellate court for being contrary to the majority of the courts that have 

addressed this issue.20 

16 575 N.W.2d 36 (Mich. App. 1997). 

17 Id. at 38. 

18 Id. at 42. 

19 See id. Michigan Court Rule 2.314(B)(2) provides: “[I]f a party asserts that 

the medical information is subject to a privilege and the assertion has the effect of 

preventing discovery of medical information otherwise discoverable under MCR 

2.302(B), the party may not thereafter present or introduce any physical, documentary, 

or testimonial evidence relating to the party’s medical history or mental or physical 

condition.” 

20 See LeGendre v. Monroe Cnty., 600 N.W.2d 78, 87-90 (Mich. App. 1999) 

(disagreeing with result in Hyde because it contravenes rule that the “in controversy” 

requirement is not met “by mere conclusory allegations of the pleadings or by mere 

relevance to the case, and because it is contrary to the results reached by the majority of 

courts that have addressed the issue”); see also Mara Kent & Thomas Kent, Michigan 

(continued...) 

-9- 6809
 
 

 

 

Notably, many of the decisions applying a broad view of waiver involve 

circumstances that placed the plaintiff’s mental condition more directly at issue than the 

simple assertion of garden-variety mental anguish. These circumstances include: a 

plaintiff who claimed her employer violated the Americans with Disabilities Act by 

failing to accommodate her depression,21 a plaintiff who sought $1,000,000 for severe 

emotional distress,22 and plaintiffs who had received treatment for their emotional 

distress.23 These allegations of diagnosable conditions, severe emotional distress, and 

conditions requiring psychiatric treatment are more serious than mere garden-variety 

claims; as such, we do not find these cases to be particularly persuasive on the issue 

before us. 

3. A narrower approach to waiver 

Some courts hold that the physician and psychotherapist privilege is waived 

only when the plaintiff introduces the privileged communications themselves as 

20 (...continued) 

Civil Rights Claimants: Should They Be Required to Give Up Their Physician-Patient 

Privilege When Alleging Garden-Variety Emotional Distress?, 77 U. DET. MERCY L. 

REV. 479, 479, 499 (2000) (noting that Hyde “clearly departs from the overwhelming 

majority of federal courts that have considered the issue” and criticizing Hyde for its 

failure to analyze relevant federal precedent or consider the potential for abuse by 

defendants). 

21 Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 129-30 (E.D. Pa. 1997). 

22 Doe v. City of Chula Vista, 196 F.R.D. 562, 568-69 (S.D. Cal. 1999). 

23 See EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D. Cal. 

2009) (noting that plaintiff’s treatment for depression “suggests that multiple causation 

for her emotional distress may exist”); Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 

133 (E.D. Pa. 2001) (noting that plaintiffs had received treatment for mental and 

emotional distress caused by the alleged unlawful conduct). 

-10- 6809
 
 

 

 

 

 

 

 

 

evidence.24 Courts adhering to this narrow view generally deem the privacy interests 

inherent in the privilege to be of paramount importance. 25 By precluding plaintiffs from 

relying on the privileged communications to further their own claim, this approach 

“prevents the privilege from being used as both a shield and a sword.”26 

There is a middle ground. Some courts allow discovery for serious 

psychological conditions, but recognize the physician and psychotherapist privilege for 

garden-variety mental anguish claims.27 The Missouri Supreme Court adopted this view 

in State ex rel. Dean v. Cunningham, which concerned a claim for emotional distress in 

the context of a sex discrimination suit.28 There, the court held that a plaintiff claiming 

emotional distress damages in an antidiscrimination suit is protected by the 

psychotherapist privilege where: “ her claim [(1)] is only for such emotional distress and 

24 See, e.g., Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal. 2003) 

(holding privilege not waived in housing discrimination suit seeking emotional distress 

damages where plaintiffs stipulated they would not “rely on any treating psychotherapist 

or other expert” to prove emotional distress); Hucko v. City of Oak Forest, 185 F.R.D. 

526, 529-31 (N.D. Ill. 1999) (finding no waiver where plaintiff did not intend to offer 

evidence of his psychotherapy, testify about doctor’s advice, or offer independent expert 

testimony to prove his claim of emotional harm); Vanderbilt v. Town of Chilmark, 174 

F.R.D. 225, 228-30 (D. Mass. 1997) (holding that plaintiff in discrimination suit seeking 

damages for emotional distress did not waive privilege because she did not introduce 

communications with psychotherapist into evidence). 

25 See, e.g., Vanderbilt, 174 F.R.D. at 229 (analyzing federal privilege). 

26 Fitzgerald, 216 F.R.D. at 637. 

27 See, e.g., EEOC v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 641 (E.D. Wash. 

2011) (holding that plaintiff had not waived privilege where he alleged only gardenvariety mental anguish and had not affirmatively relied on any privileged 

communications). 

28 182 S.W.3d 561, 563-64 (Mo. 2006). 

-11- 6809
 
 

 

 

 

 

 

 

 

humiliation that an ordinary person would experience under the circumstances or that 

may be inferred from the circumstances, and (2) is not to be supported by any evidence 

of medical or psychological treatment for a diagnosable condition.”29 The Cunningham 

court thus based its decision on both the nature of the mental anguish claims and the fact 

that the plaintiff had not introduced any privileged communications into the lawsuit. 

In Cunningham, the plaintiff had asserted that she sought no treatment for 

mental anguish, had not requested a specific dollar amount for damages, and had sought 

only garden-variety mental anguish damages.30 In these circumstances, the court 

concluded that evidence of the plaintiff’s “medically or psychologically diagnosable 

mental or physical condition is irrelevant to the question of whether she suffered 

‘garden[-]variety’ emotional distress as a result of the incidents pleaded” in her sex 

discrimination claim.31 

The Cunningham court explained that its holding should not prejudice the 

defendant: 

[T]he corollary to Dean’s denial that she has a medically 

diagnosable injury is that the defense is entitled to bring that 

fact to the attention of the jury, through her answers to 

interrogatories, through cross-examination or otherwise. In 

other words, the defense may show that Dean’s emotional 

distress and humiliation were not so severe as to require 

[ ] medical or physical consultation or treatment. 32

The court also noted that its holding precluded the plaintiff from claiming a medically 

diagnosable injury, such as depression: If the plaintiff contended that she was treated for 

29 Id. at 569. 

30 Id. at 567. 

31 Id. at 568. 

32 Id. at 569. 

-12- 6809
 
 

 

 

 

 

 

 

depression resulting from the defendants’ alleged acts, the privilege would be waived.33 

Many courts in other jurisdictions have adopted a similar approach.34 

This narrower approach to waiver is consistent with our previous decisions 

construing Alaska Civil Rule 35(a). This rule provides that a court cannot order a mental 

examination unless the movant shows that the other party’s mental condition is “in 

controversy” and that there is “good cause” for an examination.35 Some federal courts 

have noted that “determining whether the plaintiff has placed her mental condition at 

issue so as to waive the [psychotherapist] privilege is analogous to, and should be 

generally consistent with, the analysis conducted when a Rule 35(a) examination is 

requested.”36 

Our cases interpreting the “in controversy” requirement of Rule 35(a) are 

therefore instructive. “To be ‘in controversy’ means to be ‘directly involved in some 

33 Id. 

34 See, e.g., Ruhlmann v. Ulster Cnty. Dep’t of Soc. Servs., 194 F.R.D. 445, 

450 (N.D.N.Y. 2000) (“[A] party does not put his or her emotional condition in issue by 

merely seeking incidental, ‘garden-variety,’ emotional distress damages, without 

more.”); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (holding that 

plaintiff avoided waiver of privilege where she had restricted her claims to humiliation, 

embarrassment, anger, and other similar emotions, and was barred from introducing 

medical evidence at trial); Kent, supra note 20, at 490-96 (collecting cases). 

35 Alaska R. Civ. P. 35(a). Federal Civil Rule 35(a) also provides that a court 

may order a party whose mental condition is “in controversy” to submit to a mental 

examination. 

36 Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 557 (N.D. Ga. 2001); 

see also Jackson v. Chubb Corp., 193 F.R.D. 216, 225 n.8 (D.N.J. 2000) (noting that 

“[i]n the analogous context of requiring a plaintiff to undergo a mental examination 

pursuant to Federal Rule of Civil Procedure 35(a), courts have generally found that 

‘garden[-]variety’ emotional distress does not satisfy the rule’s requirement that the 

plaintiff’s mental condition must be ‘in controversy’ ” and citing cases). 

-13- 6809
 
 

 

 

 

material element of the cause of action or a defense.’ ”37 We have cautioned that this 

requirement should not be disregarded: 

Civil Rule 35(a) should be invoked cautiously, only after the 

movant has demonstrated sufficient justification for a mental 

or physical examination. This ensures that trial courts can 

guard against misuse of Civil Rule 35(a) as an unwarranted 

mechanism for discovering mental or physical issues absent 

[ ] good reason to believe that such issues actually exist. 38

Most other courts addressing this issue have held that employment discrimination 

plaintiffs do not place their mental condition “in controversy” by alleging garden-variety 

emotional distress.39 

We find the rationale underlying this narrower approach to waiver more 

persuasive. Garden-variety mental anguish claims are sufficiently limited in scope to 

alleviate the Municipality’s concerns regarding fairness to defendants. If the officers do 

not allege that they have a medically diagnosable injury or that they have received 

37 Alyssa B. v. State, Dep’t of Health & Soc. Servs., 123 P.3d 646, 650 (Alaska 

2005) (quoting Dingeman v. Dingeman, 865 P.2d 94, 99 (Alaska 1993)). 

38 Id. at 650-51 (footnote omitted). 

39 Stevenson, 201 F.R.D. at 553; see also Ricks v. Abbott Labs., 198 F.R.D. 

647, 648 (D. Md. 2001) (noting that the majority of courts have held that a plaintiff’s 

mental condition is not placed “in controversy” by simply making a claim for emotional 

damages as part of an employment discrimination claim, unless she asserts a specific 

cause of action for the infliction of emotional distress, alleges a specific disorder, alleges 

unusually severe distress, offers expert testimony in support of her claim for emotional 

distress, or concedes that her mental condition is “in controversy”); LeGendre v. Monroe 

Cnty., 600 N.W.2d 78, 87-90 (Mich. App. 1999) (collecting cases). 

-14- 6809
 
 

 

 

 

 

 

 

treatment related to their emotional distress, the Municipality is entitled to bring this 

information to the jury’s attention.40 

Moreover, wide-ranging inquiry into an individual’s medical and 

psychiatric history could deter legitimate discrimination claims.41 Litigants should not 

be forced to choose between disclosing highly personal medical information and 

asserting claims for distress that any healthy individual would likely suffer as a result of 

discrimination. Our cautious approach should achieve an appropriate balance between 

a defendant’s interest in fair disclosure, the privacy interest protected by the physician 

and psychotherapist privilege, and the societal values promoted by state law.42 

C.	 Some Of The Mental Anguish Claims In This Case Are GardenVariety Claims. 

The officers assert that they suffered only garden-variety mental anguish 

as a result of the Municipality’s discriminatory conduct. They point out that they did not 

40 See State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 569 (Mo. 2006); 

see also Fitzgerald v. Cassil, 216 F.R.D. 632, 638 (N.D. Cal. 2003) (listing the defense’s 

ability to cross-examine the plaintiff “about other stressors or contributing factors that 

may explain or have contributed to the alleged emotional distress,” present other 

evidence to show that a plaintiff’s description of her distress is exaggerated, and elicit 

from the plaintiff the fact that the plaintiff did not seek treatment or therapy for such 

distress as “numerous avenues” through which a defendant can make its case without 

access to confidential medical records). 

41 Cunningham, 182 S.W.3d at 566; see also Taylor v. ABT Elecs., Inc., No. 

05 C 576, 2007 WL 1455842, at *2-3 (N.D. Ill. May 14, 2007) (holding assertion of 

garden-variety emotional distress claims does not waive privilege and noting that 

“allowing such discovery would discourage people from coming forward to bring these 

kinds of [civil rights] claims if as a result their whole life becomes an open book”) 

(internal quotation marks omitted). 

42 AS 18.80.200(b) (“[I]t is the policy of the state and the purpose of this 

chapter to eliminate and prevent discrimination in employment . . . .”). 

-15-	 6809
 
 

 

 

 

 

 

 

 

receive medical treatment for emotional distress and that their claims can be established 

by lay testimony. They suggest that their reactions to APD’s alleged discriminatory 

conduct were normal considering the stresses unique to their positions as police officers. 

The Municipality argues that the officers’ claims are not garden-variety 

claims. Specifically, it asserts that Feliciano’s claims of aches and pains, fatigue, 

insomnia, loss of energy, and relationship issues with his family are not the foreseeable 

result of a hostile work environment. The Municipality contends that Feliciano’s 

physical symptoms could be due to a number of medical ailments and that his emotional 

reactions are not typical or proportionate to the magnitude of the alleged discrimination. 

The Municipality also argues that Kennedy’s claims are not garden-variety claims 

because they “go further than expressing mere emotions.” 

“Garden-variety” means ordinary or commonplace.43 “Garden[-]variety 

claims refer to claims for compensation for nothing more than the distress that any 

healthy, well-adjusted person would likely feel as a result of being so victimized.”44 

They are restricted to “the negative emotions that [a plaintiff] experience[s] essentially 

as the intrinsic result of the defendant’s alleged conduct.”45 Claims fall within the ambit 

of garden-variety anguish where they “do[] not exceed the suffering and loss an ordinary 

person would likely experience in similar circumstances, and constitute[] matters that are 

43 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 480 (10th ed. 1998); see 

also GARNER’S DICTIONARY OF LEGAL USAGE 386 (3d ed. 2011) (defining garden variety 

as “of the ordinary or familiar kind”). 

44 Jacobs v. Conn. Cmty. Technical Colls., 258 F.R.D. 192, 196 (D. Conn. 

2009) (quoting EEOC v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 121 (W.D.N.Y. 2009)) 

(internal quotation marks omitted). 

45 Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999). 

-16- 6809
 
 

 

 

 

 

 

within the everyday experience of the average juror.”46 Generally, garden-variety claims 

allege “the kind of emotional distress or humiliation that an ordinary person would 

experience in such circumstances.”47 

Several courts have distinguished garden-variety anguish from more serious 

conditions, such as depression.48 One court, for example, allowed a plaintiff to present 

evidence of “humiliation, embarrassment, and other similar emotions,” such as anger, but 

precluded evidence “about symptoms or conditions that she suffered (e.g., sleeplessness, 

nervousness, depression).”49 Some courts have identified the relevant inquiry as whether 

the condition required medical treatment. 50 Others have placed temporal boundaries on 

46 EEOC v. Serramonte, 237 F.R.D. 220, 224 (N.D. Cal. 2006) (quoting 

Fritsch v. City of Chula Vista, 187 F.R.D. 614, 632 (S.D. Cal. 1999)) (internal quotation 

marks omitted). 

47 State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 564 (Mo. 2006). 

48 See id. at 569 (stating that plaintiff’s allegation that she was treated for 

depression resulting from defendants’ alleged acts will waive the privilege). 

49 Santelli, 188 F.R.D. at 309; see also Jacobs, 258 F.R.D. at 196-97 

(deeming allegations of insomnia, depression, inability to focus, and anxiety as 

sufficiently serious to trigger waiver of the privilege). But see Sorenson v. H & R Block, 

Inc., 197 F.R.D. 199, 204 (D. Mass. 2000) (holding that allegations of “mental anguish, 

severe emotional distress, humiliation, personal indignity, emotional pain, . . . 

embarrassment, and anxiety” qualified as garden-variety claims). 

50 See Taylor v. ABT Elecs., Inc., No. 05 C 576, 2007 WL 1455842, at *2 

(N.D. Ill. May 14, 2007) (“[T]he very nature of ‘garden[-]variety’ emotional 

distress damages contemplates that they are not necessarily medically based, but 

rather compensation for ‘humiliation, embarrassment, and similar emotions.’ ”); 

Epstein v. Kalvin-Miller Int’l, Inc., 139 F. Supp. 2d 469, 480 (S.D.N.Y. 2001) (“A 

‘garden[-]variety’ emotional distress claim is one that did not require medical treatment.” 

(citing Luciano v. Olsten Corp., 912 F. Supp. 663, 673 (E.D.N.Y. 1996))). 

-17- 6809
 
 

 

 

 

claims, indicating that a claim for mental suffering is not a garden-variety claim if the 

plaintiff alleges ongoing or permanent emotional distress.51 

We find several of these limitations appropriate. A claim is not a gardenvariety anguish claim if it involves a diagnosable mental disease or disorder, medical 

treatment or medication, longstanding, severe, or permanent emotional distress, physical 

symptoms, or expert testimony. Garden-variety claims will typically involve emotions 

rather than conditions. Limiting potential claims in this way ensures that the alleged 

distress will fall within the common experience of jurors such that they can readily 

understand the nature or severity of the emotional distress.52 

In this case, Kennedy described his mental anguish claim by referring to 

simple emotions. He asserted that he was “very angry, disappointed, and occasionally 

sad.” He stated that his “trust levels [were] very low” and that he was “discouraged and 

disappointed” by the actions of the APD. Because Kennedy only references his 

emotions, his claim is a garden-variety mental anguish claim. 

Feliciano described more severe symptoms. He stated that he was 

“disturbed” by the alleged discrimination. He elaborated: 

51 See Verma v. Am. Express, No. C 08-2702 SI, 2009 WL 1468720, at *2 

(N.D. Cal. May 26, 2009) (finding emotional distress claims were not garden variety if 

plaintiff stated that she continued to experience extreme emotional distress nearly two 

years after her alleged wrongful termination); cf. Serramonte, 237 F.R.D. at 224 (noting 

that plaintiff no longer had symptoms of distress and concluding that claims for 

emotional distress were garden variety). 

52 See Ricks v. Abbott Labs., 198 F.R.D. 647, 649 (D. Md. 2001) (“A trier of 

fact . . . does not need help understanding the ordinary grief, anxiety, anger, and 

frustration that any person feels when something bad occurs.”); see also Cunningham, 

182 S.W.3d at 568. 

-18- 6809
 
 

 

 

 

 

The conduct of the APD has given me the feeling that 

everything I have done throughout my career has been for 

naught. I feel sad, resulting in lower activity and feeling 

anxious, empty, hopeless, helpless, worthless, guilty, 

irritable[,] and restless. I have experienced insomnia, fatigue, 

loss of energy, aches and pains, and a strained relationship 

with my wife and children. 

Feliciano also asserted that he “had no confidence” and felt he had to retire from APD. 

As currently framed, Feliciano’s claim goes beyond the scope of mere 

emotions. Feliciano’s symptoms could suggest that he may suffer from a diagnosable 

mental condition. Because this claim does more than describe Feliciano’s emotions, it 

is not a garden-variety claim. 

D. Other Issues 

The Municipality argues that strict limitations should be imposed on proof 

of mental anguish when there is no waiver of the physician and psychotherapist 

privilege. It contends that the officers’ claims should be based solely on their own 

testimony and requests various other specific limitations on the substance of such 

testimony. 

The appropriate limitations on proof should mirror the limits placed on 

permitted claims. Therefore, under the test we adopted above, the officers are precluded 

from introducing evidence of a diagnosable disease or disorder,53 medical treatment or 

54 55 56 medication, longstanding, severe, or permanent distress, physical symptoms, or 

53 Cf. Valiavacharska v. Celaya, No. 10-4847 JSC, 2011 WL 4479341, at *3 

(N.D. Cal. Sept. 26, 2011) (precluding claims of post-traumatic stress disorder or 

nightmares). 

54 Cf. Epstein, 139 F. Supp. 2d at 480 (“A ‘garden[-]variety’ emotional
 

distress claim is one that did not require medical treatment.” (citing Luciano, 912 F.
 

(continued...)
 

-19- 6809
 
 

 

 

 

 

 

 

 

 

 

 

 

expert testimony.57 Subject to these limitations on content, nothing precludes lay 

testimony by individuals other than the claimants. Such limitations on proof will prevent 

the privilege from being used as both a “shield and a sword.” 58 

On remand, Feliciano should be permitted the opportunity to limit his claim 

to garden-variety mental anguish.59 If he does not, then he may be ordered to provide the 

requested medical discovery. Any required release should be reasonably limited to the 

relevant time frame and to those records that could be relevant to the types of conditions 

54 (...continued) 

Supp. at 673)). 

55 See Valiavacharska, No. 10-4847 JSC, 2011 WL 4479341, at*3 (limiting 

evidence of emotional distress to “that what an ordinary person subjected to similar 

circumstances would experience and was not prolonged or ongoing”); Verma, No. C 08­

2702 SI, 2009 WL 1468720, at *2 (holding that plaintiff’s “claims for emotional 

distress — and any proof of them to be presented at trial — shall be limited to the periods 

during her employment when she allegedly experienced harassment, retaliation and 

discrimination, and the period immediately following her allegedly wrongful 

termination”). 

56 See Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) 

(permitting plaintiff to present evidence of “humiliation, embarrassment, and other 

similar emotions,” but precluding plaintiff from introducing evidence “about symptoms 

or conditions that she suffered”). 

57 Cf. Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal. 2003) (concluding 

privilege not waived because plaintiffs stipulated they would not affirmatively rely on 

any treating psychotherapist or other expert to prove emotional distress damages). 

58 See id. at 637. 

59 See Verma, No. C 08-2702 SI, 2009 WL 1468720, at *2 (permitting 

plaintiff to limit her emotional distress claims as necessary to avoid waiver of the 

privilege, and construing her complaint accordingly). 

-20- 6809
 
 

 

asserted. Finally, we decline to address issues outside the scope of our order granting 

review.60 

V. CONCLUSION 

We REVERSE the superior court’s order granting the Municipality’s 

motion to compel discovery and REMAND to the superior court for proceedings 

consistent with this opinion. 

Both parties make a number of additional arguments in their briefs. The 

Municipality urges us to impose a limit on damages awarded under AS 18.80.220. The 

officers make arguments implicating the constitutional right to privacy and the Health 

Insurance Portability and Accountability Act. But these issues were not designated for 

review and so we decline to address them here. See Green v. State, 544 P.2d 1018, 1020 

n.6 (Alaska 1976) (declining to review issue not raised in petition for review). 

-21- 6809 

60