A party seeking to compel another party to submit to a mental examination must establish that the party’s mental condition is “in controversy” and must show “good cause” for the mental examination. Fed. R. Civ. P. 35. There must be an affirmative showing that the mental condition is “really and genuinely” in controversy. Schlaugenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964).
Plaintiff’s “mental condition” is not necessarily placed in controversy because Plaintiff seeks recovery for emotional distress. A person with no “mental condition” may still suffer emotional distress which is compensable. Ali v. Wang Laboratories, Inc., 162 F.R.D. 165, 167-68 (M.D. Fla. 1995).
Defendant mistakenly relies upon the Ali case for the proposition that “where a plaintiff asserts substantial emotional distress and seeks significant damages based upon that distress, he has put his mental condition in controversy” (emphasis added). Ali is distinguished from the instant case because the Plaintiff in the Ali case specifically stated in answers to interrogatories that he was, among other things, “severely and psychologically permanently damaged”, that he had suffered “extreme emotional duress”, and that he had suffered physical manifestations of his alleged psychological injuries. (Id., at 168). Plaintiff in the instant case has made no such claims.
In Schlaugenhauf, the Supreme Court looked at the language of Federal Rule 35 in comparison with other federal discovery rules. Unlike any of the others, Rule 35 has an additional requirement that the matter must actually be “in controversy”. Unlike any but Rule 34, a Rule 35 movant must demonstrate “good cause”. In explaining the rationale, the Supreme Court cited with approval Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F. 2d 921, 924 (C.A. 4th Cir.): “The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b). Thus, by adding the words ***good cause***, the Rules indicate that there must be some greater showing of need under Rules 34 and 35 than under the other discovery rules.”
The Supreme Court plainly construed the “in controversy” and “good cause” requirements of Rule 35 as limitations which require a movant to show a genuine need for medical examination, and which require “discriminating application” by a trial judge, who must decide whether the moving party has adequately demonstrated the existence of the Rule’s requirements. Schlaugenhauf, at 118-19.
Defendant has failed to show “good cause”. The ability to obtain the desired information by other means is also relevant. Id., at 118. Defendant has not sought to depose Dr. Newberry, which would be a perfectly valid method of “cross examination”, were Plaintiff’s mental condition even “in controversy”. However, Plaintiff’s mental condition is not “in controversy” and so Defendant’s motion also must be denied on this basis.
Plaintiff’s “mental condition”, within the meaning of Rule 35, is not necessarily placed in controversy merely because he seeks recovery for emotional distress. A person with no “mental condition” may still suffer emotional distress which is compensable.” Ali, at 167-68; Morton v. Haskell-Company, 1995 WL 819182, *2 (M.D. Fla. 1995).
Defendant cites the Morton case for the preposition that it should be allowed to “rebut Plaintiff’s self-reported mental state or the reasons for it.” Defendant’s reliance on Morton is misplaced, however. Morton was brought pursuant to the Americans with Disabilities Act and Family and Medical Leave Act. The Plaintiff in that case specifically alleged that he suffered from clinical depression and that this condition constituted a disability under the ADA, that he was discriminated against on the basis of his disability under the ADA and denied leave in violation of the FMLA, and that the violations constituted the intentional infliction of emotional distress which caused the Morton plaintiff “severe “mental suffering.” Morton, *1.
Morton has no applicability to the present case. As opposed to that case, where the crux of the plaintiff’s claims involved his mental condition, Plaintiff Kumar’s complaint alleges violations of Florida’s Civil Rights Act. Specifically, Plaintiff Kumar alleges discrimination on the basis of race, color and national origin, and retaliation. In Morton, a violation of the ADA turns on the very existence of a disability. In this case, a violation of Florida’s Civil Rights Act depends upon proof of race, color, national origin and retaliation, and not upon proof of disability. A violation of the Chapter 760, Florida Statutes, may occur regardless of the “mental condition” of the victim of the discriminatory practice.
Simply put, it appears that Defendant is attempting to add an additional requirement to Plaintiff’s prima facie case, by forcing him to prove the existence of a “mental condition” he has never sought relief for, nor which is an element of a discrimination claim pursuant to Chapter 760, Florida Statutes.
In Morton, it was observed by the Court that “if plaintiff did not suffer from this mental condition, or if it was insufficiently severe, he will not prevail on the bulk of his claims.” This was clearly sufficient to place Morton’s mental condition in controversy. Id., at *2. In Morton, the Plaintiff was seeking substantial damages based upon his claim that he suffered from clinical depression, which constituted both a disability and a serious medical condition. Id. In the instant case, if it is established that Plaintiff did not suffer any mental anguish, he will not be awarded compensatory damages for mental anguish, though this has no bearing on whether Defendant violated Chapter 760, Florida Statutes, and no bearing on whether Plaintiff may recover other damages, such as back pay. To find that Plaintiff in this case has placed his mental condition “in controversy” is simply not supported by the pleadings which have heretofore framed the issues in this lawsuit.
The case of Robinson v. Jacksonville Shipyards, 118 F.R.D. 525 (M.D. Fla. 1988) is worth considering, in this regard. That case involved a claim of sexual harassment based on hostile work environment, brought pursuant to Title VII. This Court refused to order the Robinson Title VII Plaintiff to submit to a mental exam for a claim of damages for emotional distress, in addition to back pay, because “plaintiff does not place her medical condition in controversy by alleging that her psychological well being, is seriously affected by defendant’s behavior.” Id., at 531. The Court distinguished between tort claims for damages stemming from intentional infliction of emotional distress, where the existence of a mental injury is the crux of the inquiry, and Title VII claims, where the emotional distress and/or mental anguish is incidental to the violation of an anti-discrimination provision. Id., at 528. Unlike tort claims for damages from emotional and mental injuries, where severe mental and emotional injuries must be alleged and proven, often by the introduction of psychiatric testimony, a Title VII harassment case involves no such issues. This distinction would also be applicable to claims brought pursuant to anti-discrimination provisions of the Florida Civil Rights Act, Chapter 760, Florida Statutes. The crux of this case is whether Defendant violated laws prohibiting discrimination based on race, color, national origin and retaliation, not whether he has a psychological injury.
Because Defendant has failed to establish that Plaintiff has put his mental condition “in controversy” or that it has “good cause” to seek an order compelling Plaintiff to submit to an independent medical examination, as required by Rule 35, Defendant’s motion should be denied.
Defendant also requests that, should the Court find that the “in controversy” and “good cause” requirements of Fed. R. Civ. P. 35 are satisfied, no third parties should be allowed to attend the examination. As Defendant has recognized in its memorandum of law, the Eleventh Circuit has not taken a position on this issue, and in fact, the question of whether a party may have an observer present during a Rule 35 examination is unsettled in courts throughout the country. Galieti v. State Farm Mutual Automobile Insurance Company, 154 F.R.D. 262, 263 (D. Colorado 1994). Some courts have in fact held there is an absolute right to have an observer present during an examination, since a Court-ordered examination is “merely a continuation of the adversary process” Id., Langfeldt-Haaland v. Saupe Enterprises, Inc., 768 P. 2d 1144 (Alaska 1989); Bartell v. McCarrick, 498 So. 2d 1378 (Fla. App. 1986); Tietjen v. Dept. of Labor & Indus., 13 Wash. App. 86, 534 P. 2d 151 (1975); Acosta v. Tenneco Oil Co., 913 f. 2d 205 (5th Cir. 1990). The decision is discretionary and rests with the Court. Herkalo v. National Liberty Insurance Co., 1995 WL 739694 (E. D. Pa. 1995); Bartell v. McCarrick, 498 So. 2d 1378, 1379 (Fla. App. 1986). “Trial judges are in the best position to make those decisions on a case by case basis.” Id.
Contrary to the position stated in Defendant’s memorandum of law, a Court-ordered medical examination is an adversarial procedure, and is not objective. Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12, 13 (E.D. N.Y. 1989). Defendant has retained an expert witness to try to limit any damages for mental anguish which might be awarded to Plaintiff. Defendant has chosen not to take the deposition of Plaintiff’s doctor, but rather has elected to further harass Plaintiff by requiring him to undergo what is little more than a second deposition. Now Defendant seeks to conduct this quasi-deposition without an observer present.
It is essential to recognize that “the privacy of the [Plaintiff] is involved, not that of the examiner.” Bartell, at 1379. Defendant’s expert is not necessarily a disinterested examiner, indifferent to the conflicting interests of the parties. Jakubowski v. Langen, 86 A.D. 2d 398, 450 N.Y. S. 612, 614 (N.Y. App. Div. 1982). “Whenever a doctor selected by the Defendant conducts [an examination] of the Plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril.” Id., at 1380, quoting from Sharff v. Superior Court of the City and County of San Francisco, 44 Cal. 2d 508, 510, 282 P. 2d 896, 897 (1955).
Plaintiff is a native of India. While his English is quite good, there exists the distinct possibility that, if the Court orders that no third parties may be present during examination, Plaintiff may not be able to communicate fully to his counsel the precise nature and substance of what occurred during the examination. Thus it is critical that, should this Court order an examination of Plaintiff pursuant to Rule 35, an observer must be present to accurately preserve what is, essentially, a compelled intrusion into Plaintiff’s privacy. Furthermore, as evidenced by Plaintiff’s deposition, the discrimination and harassment Plaintiff suffered while employed by Defendant is obviously extremely upsetting to him. Plaintiff should be entitled to some assurance that Defendant’s unbiased examination would accurately be recorded. At a minimum, on this basis, the Court should allow Plaintiff to have a court reporter present.
Plaintiff argues that this Court should not order an examination pursuant to Fed. R. Civ. P. 35 because Defendant has failed to show that the Plaintiff’s mental condition is really and genuinely “in controversy”, or that there is “good cause” for such an examination. The determination of whether the Plaintiff has suffered compensable damages for mental anguish is not a subject that requires an expert opinion. This is an issue to be resolved by the trier of fact, in this case, the jury. Defendant’s motion should be denied on these grounds.
While Plaintiff rigorously maintains that Defendant has failed to establish that a Rule 35 examination is warranted, if the Court should order an examination, at a minimum, Plaintiff should be entitled to have a third party present.
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Attorney: Maurice Arcadier
Date Filed: November 2, 2012
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