In Re Gadeco, LLC; Celeste C. Grynberg, individually and as Co-Trustee for the Rachel Susan Grynberg 1982 Trust, the Stephen Mark Grynberg 1983 Trust, and the Miriam Zela Grynberg 1986 Trust; The Rachel Susan Grynberg 1982 Trust; The Stephen Mark Grynberg 1983 Trust; The Miriam Zela Grynberg1986 Trust; Pricaspian Development Corporation; Rachel S. Grynberg; Miriam Z. Grynberg; Stephen M. Grynberg, individually and as Trustee for Stephen Mark Grynberg Separate Property Trust; The Stephen Mark Grynberg Separate Property Trust; and RSM Production Corporation, Plaintiffs/Counterclaim Defendants:
Jack J. Grynberg, Defendant/Counterclaim Plaintiff: and The Grynberg Petroleum Corporation. Defendant:
Original Proceeding Pursuant to C.A.R. 21 Arapahoe County
District Court Case No. 16CV30959 Honorable Charles M. Pratt,
Attorneys for Plaintiffs/Counterclaim Defendants Celeste C.
Grynberg, individually and as Co-Trustee for the Rachel Susan
Grynberg 1982 Trust, the Stephen Mark Grynberg 1983 Trust,
and the Miriam Zela Grynberg 1986 Trust; The Rachel Susan
Grynberg 1982 Trust; The Stephen Mark Grynberg 1983 Trust;
The Miriam Zela Grynberg 1986 Trust; Rachel S. Grynberg;
Miriam Z. Grynberg; Stephen M. Grynberg, individually and as
Trustee for Stephen Mark Grynberg Separate Property Trust;
and The Stephen Mark Grynberg Separate Property Trust:
Bartlit Beck Herman Palenchar & Scott LLP Fred H.
Bartlit, Jr. Glen E. Summers Daniel C. Taylor Katherine L.I.
Hacker Denver, Colorado
Attorneys for Defendant/Counterclaim Plaintiff Jack J.
Grynberg: Dorsey & Whitney LLP Gregory S. Tamkin Case
Collard Andrea Ahn Wechter Denver, Colorado
appearance by or on behalf of Gadeco, LLC; Pricaspian
Development Corporation; RSM Production Corporation; The
Grynberg Petroleum Corporation.
In this original proceeding, we consider whether the
defendant Jack Grynberg impliedly waived the
physician-patient privilege by either (1) requesting specific
performance of a contract, or (2) denying the plaintiffs'
allegations that he made irrational decisions. Grynberg
asserted counterclaims for breach of contract against the
plaintiffs, his children and former wife ("the
Family"). Grynberg's counterclaims requested the
specific performance of an oral or implied-in-fact contract
in which the Family allegedly agreed to allow Grynberg to
control several family companies for his lifetime. The trial
court found that Grynberg impliedly waived the
physician-patient privilege by asserting those counterclaims,
and it ordered him to produce three years' worth of
mental health records for in-camera inspection. Grynberg
petitioned this court to review that ruling pursuant to
C.A.R. 21, and we issued a rule to show cause why the trial
court's order should not be vacated.
We have previously determined that only privilege
holders-patients-can impliedly waive the physician-patient
privilege, and that they do so by injecting their physical or
mental condition into the case as the basis of a claim or an
affirmative defense. Weil v. Dillon Cos., 109 P.3d
127, 129 (Colo. 2005). Relevant here, privilege holders
inject their physical or mental condition into a case as the
basis of a claim when they utilize the condition as "the
predicate for some form of judicial relief." Clark
v. Dist. Court, 668 P.2d 3, 10 (Colo. 1983). As a
corollary to that rule, an adverse party cannot inject the
patient's physical or mental condition into a case
through its defenses. See Hoffman v. Brookfield Republic,
Inc., 87 P.3d 858, 864 (Colo. 2004). Finally, patients
do not inject their mental condition into the case by denying
the opposing party's allegations. Clark, 668
P.2d at 10. In keeping with our previous interpretations of
the implied waiver doctrine, we hold that Grynberg did not
inject his mental condition into the case as the basis of a
claim by alleging that the Family breached a contract that
does not reference his mental health. Likewise, he did not
inject his mental condition into the case as the basis of a
claim or an affirmative defense by denying the Family's
allegations that he made irrational decisions. Accordingly,
we conclude that Grynberg did not impliedly waive the
physician-patient privilege and that the trial court abused
its discretion by ordering Grynberg to produce his mental
health records for in-camera inspection.
We make the rule to show cause absolute, and we remand this
case to the trial court for further proceedings.
Facts and Proceedings Below
This original proceeding arises out of a dispute between
Grynberg, who founded a number of businesses, and his family,
the owners and directors of those businesses. According to
Grynberg, he transferred his ownership interests in the
businesses to the Family on the condition that he would
remain in control of the businesses until his death. Grynberg
alleges that the Family members expressed agreement to these
terms either orally, in writing, or implicitly through their
conduct. In 2016, however, the Family voted to remove
Grynberg as president of each business, citing his declining
mental health. Grynberg refused to comply.
The Family then filed this lawsuit, seeking a declaration
that Grynberg no longer controlled the businesses and an
injunction preventing him from representing the businesses.
In its complaint, the Family asserted that Grynberg was
exhibiting erratic behavior, making irrational decisions, and
committing significant company funds to obviously fraudulent
scam operations. In his amended answer, Grynberg denied the
Family's allegations and asserted counterclaims,
including claims for breach of the lifetime-control
agreement. Grynberg alleged that the Family's breach of
the oral or implied contract caused substantial monetary
harm, and he sought "damages and/or specific
performance" as relief.
Because the case was complex, the trial court appointed a
special master to handle discovery issues. The Family filed a
motion requesting that the special master order Grynberg to
produce all medical records related to his mental health.
Grynberg objected, arguing that his medical records were
protected by the physician-patient privilege. The special
By arguing that he is capable of running the companies via
his specific performance claim, [Grynberg] has inserted his
physical and mental condition into the case (albeit, in
response to the allegations noted above that he is incapable
of running the companies). By inserting his mental condition
into the case, ...