Buck, Randy v. BNSF Railway Company

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IN THE UNITED STATES DISTRICT COURT                        
             FOR THE WESTERN DISTRICT OF WISCONSIN                       


RANDY J. BUCK,                                                           

                   Plaintiff,                                            
                                           OPINION and ORDER             
     v.                                                                  


                                              24-cv-232-wmc              
BNSF RAILYWAY COMPANY,                                                   

                   Defendant.                                            


    Plaintiff Randy J. Buck, a locomotive engineer for defendant BNSF Railway Company, 
seeks to recover damages for alleged “severe mental and physical injuries” suffered when he 
released an engine’s handbrake.  Dkt 1 at 3.  This order addresses defendant’s motion to compel 
production of plaintiff’s mental health records related to his emotional distress.1  Dkt. 20.  
Because plaintiff has limited his claim to garden variety emotional distress, the court DENIES 
defendant’s motion.                                                       
                        LEGAL STANDARD                                   
    “Parties 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 

1 Defendant also moved to compel production of plaintiff’s medical records related to his 
claimed spinal injuries.  Dkt. 21 at 6–7.  That request is DENIED as moot in light of plaintiff’s 
response that he has agreed to provide a medical authorization for records concerning his 
cervical treatment.  Dkt. 24 at 1–2.  Only the parties’ dispute over plaintiff’s mental health 
records remains unresolved.                                               
issues, and whether the burden or expense of the proposed discovery outweighs its likely 
benefit.  Information within this scope of discovery need not be admissible in evidence to be 
discoverable.”  Fed. R. Civ. P. 26(b)(1).                                 

                           ANALYSIS                                      

    Defendant argues that it is entitled to review plaintiff’s mental health records.  Patients, 
like plaintiff, hold a limited privilege over information concerning their mental health.  McGlenn 
v. Madison Metro. Sch. Dist., No. 21-cv-683-jdp,
2024 WL 359107
, at *1 (W.D. Wis. Jan 31, 
2024) (citing Jaffee v. Redmond,
518 U.S. 1, 10
(1996)).  But this privilege can be waived,
id.,
including if a plaintiff places his mental health at issue by seeking damages for emotional 
distress.  Doe v. Oberweis Dairy,
456 F.3d 704, 718
(7th Cir. 2006).  In that instance, the 
defendant may discover any related mental health records and subject the plaintiff to a mental 
health examination.
Id.
But there is an exception to this waiver rule:  A party does not waive his mental health 
privilege if the evidence he presents on emotional harm is limited to “garden variety emotional 
distress.”  See McGlenn, No. 21-cv-683-jdp,
2024 WL 359107
, at *1 (collecting cases); see also 
Hess v. Garcia, No. 21-CV-101-JD-MGG,
2024 WL 2846474
, at *7 n. 12 (N.D. Ind. June 4, 
2024) (collecting cases).  This is the kind of emotional distress “within the range of what a 
healthy, well-adjusted person would feel as the result of the defendant’s conduct” that “may 
not b[e] supported or negated by expert testimony or by evidence of plaintiff’s counseling or 
therapy” but rather by “testimony about plaintiff’s emotional state or conduct.”  Id., at *4.  

The exception does not apply, however, if a plaintiff’s emotional distress is sufficiently extreme 
to suggest it could have been caused by something other than defendant’s conduct, such as an 
undisclosed mental health condition.  Id., at *3.  This is because “it would be unfair to allow 
the plaintiff to seek damages for that distress without allowing the defendant to obtain 
discovery that could undermine the claim.”  Id.                           
    Defendant agrees that plaintiff may preserve the privilege in his medical records if 

plaintiff agrees to a proper “garden variety” limit.  Dkt. 21 at 8.  But defendant argues that 
plaintiff seeks damages beyond that limit as evidenced by his allegation of severe mental injures 
in his complaint and testimony at his deposition that he would seek mental health treatment 
if his condition worsened.  Defendant also notes that plaintiff admits to a history of anxiety 
and depression that could account for his current emotional distress.     
    The court will not require disclosure of plaintiff’s mental health records at this time.  
Although plaintiff used commonplace, broad language in his complaint and testified that he 
experienced anxiety and depression when he could not return to work due to his physical 

injuries, plaintiff states that his emotional damages claim is “plainly limited to the garden 
variety.”  Dkt. 24 at 5.  Indeed, plaintiff has not noticed any mental health experts.  See Dkt. 
25–1 (plaintiff’s expert witness disclosures).  And plaintiff’s deposition testimony does not 
suggest that he means to back door any claim for more severe emotional distress.2  Plaintiff 
testified that while he had been treated for anxiety and depression between 2010 and 2014, 
his current experience with these feelings “set in” after the injury because he could not return 
to work and he was not taking any medication and had not sought any treatment from a 
counselor, therapist, or life coach.  Dkt. 23–1 at 146:13-148:24.  Plaintiff’s testimony to date 


2 To the extent defendant is concerned that plaintiff, plaintiff’s experts, or any other witness 
will offer undisclosed testimony about plaintiff’s emotional distress at trial, defendant can 
litigate the issue as part of trial preparation via a motion in limine.   
does not suggest that his current feelings of anxiety and depression stem from anything other 
than the incident in question and his related inability to work.          
    At bottom, a plaintiff is free to limit his emotional damages claim as the case progresses.  
See, e.g., Caine v. Burge, No. 11-C-8996,
2012 WL 6720597
, at *4 (N.D. Ill. Dec. 27, 2012) (it 

was plaintiff’s strategic decision in discovery to limit emotion damages to garden variety and 
maintain the psychotherapist-patient privilege).  And plaintiff has now done so here.  Dkt. 24 
at 5.  Because plaintiff has limited his emotional damages claim to garden variety, waiver does 
not apply, and the court will not order the disclosure of his mental health records. 

                            ORDER                                        
    IT IS ORDERED that:                                                  
    1.  Defendant’s motion to compel, Dkt. 20, is DENIED.                
    2.  Each party shall each bear their own costs in litigating this motion. 

    Entered February 6, 2025.                                            

                             BY THE COURT:                               

                             /s/                                         
                             ________________________________________    
                             ANITA MARIE BOOR                            
                             Magistrate Judge