Summary
ordering Rule 35 exam based upon plaintiff's claims of depression caused by defendant's wrongful conduct
Summary of this case from Schlenker v. City of Arvada, ColoradoOpinion
00-2354-GTV
September 13, 2001
MEMORANDUM AND ORDER
Pending before the Court is Defendants' Motion for Order Directing Plaintiffs to Submit to Medical Examinations and Emergency Hearing Concerning Motion (doc. 70). Plaintiffs oppose Defendants' Motion and have filed a written brief in support of such opposition. A telephone hearing on Defendants' Motion was held on September 10, 2001. Plaintiffs appeared at the telephone motion hearing through counsel James Kiley and Defendants appeared through Dan Denk. Based on discussion at the hearing, as well as for the reasons stated below, Defendant's Motion is granted.
Discussion
Rule 3 5(a) of the Federal Rules of Civil Procedure states:
When the mental or physical condition (including the blood group) of a party, . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. . . . The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
In Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964), the Supreme Court stated that the "in controversy" and "good cause" requirements of Rule 3 5 would not be satisfied by conclusory allegations contained in pleadings, or by assertions of mere relevance to the case. Rule 35 requires an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Id. "[T]he rule is consciously designed to be somewhat restrictive to guard against the use of requests for mental examinations as a tool for harassment, intimidation or delay in what courts have described as the' garden variety'" emotional distress claim.
For example, "garden variety" in this case would be an emotional distress claim that seeks to recover for general feelings of sorrow, sadness, anger, grief and loneliness which anyone could be expected to feel when a close family member dies unexpectedly.
A. In Controversy
The Court must initially determine whether Defendants have made an affirmative showing that Plaintiff's have placed their mental condition "in controversy." Defendants relied in their written Motion on the general allegations in Plaintiff's' Complaint that they were entitled to damages for "mental anguish, suffering and bereavement." During the telephone conference, however, Defendants further relied on Plaintiff's' responses to Defendants' Interrogatory 2, in which Plaintiff's state that they have suffered mental injury in the form of depression as a result of Defendants' alleged misconduct and that they seek to recover for this mental injury, including compensation to pay for future prescriptions to treat the depression.
Based on these claims of depression, the Court finds Plaintiff's sufficiently have placed their mental condition "in controversy" within the meaning of Fed.R.Civ.P. 35(a). While sadness, anger, grief and loneliness are emotions one might expect an injured party to feel under the circumstances alleged, such feelings do not necessarily trigger a mental examination in the absence of something more; i.e., an impairment of the ability to function in some way which the injured party associates with the trauma caused by the alleged conduct. Through their allegations of depression, Plaintiff's' claims have gone beyond mere "garden variety" claims for emotional distress. See LeFave v. Symbios, Inc., 99-Z-1217, 2000 WL 1644154, at *4-5 (D. Colo. April 14, 2000) (finding plaintiff did not place her mental condition "in controversy" within the meaning of Rule 35 by making claims for "garden variety" emotional distress); Thiessen v. General Electric Capital Corp., 178 F.R.D. 568, 569-71 (D. Kan. 1998) (excerpts of plaintiffs deposition in which he identified specific injuries caused by defendants' alleged misconduct — as opposed to "garden variety" claims of generalized emotional distress — established that his mental condition was "in controversy" for purposes of conducting Rule 35 mental examination) (citing Dahdal v. Thorn Americas, Inc., No. 97-2119-GTV, 1998 WL 37532, at *2 (D. Kan. Jan. 28, 1998) (granting motion to compel mental examination where plaintiff's claims of emotional distress "are more extensive than what one would call a simple `garden variety' of emotional distress"); O'SuIlivan v. State of Minnesota, 176 F.R.D. 325, 328 (D. Minn. 1997) ("[A] plaintiff places a mental condition in controversy when `a claim of mental or psychiatric injury' is alleged, . . . mere allegations of mental pain and anguish' do not suffice."); Chaparro v. IBP, Inc., No. 93-2200-GTV, 1994 WL 714369, at *3 (D. Kan. Dec. 7, 1994) ("The mere assertion of a claim for emotional distress does not of itself open the door for a motion to compel submission to a mental examination."); Cody v. Marriott Corp., 103 F.R.D. 421, 423 (D. Mass. 1984) ("[I]t is clear that where . . . a plaintiff refers to specific mental and psychiatric injuries, the plaintiff is affirmatively placing in controversy a mental condition. Under those circumstances, it is appropriate for a court to order an examination.")).
B. Good Cause
The second requirement of Rule 35(a) is good cause. The majority of courts will not find good cause to require a plaintiff to submit to a medical examination unless, in addition to a claim for emotional distress damages, one or more of the following factors is also present: (1) plaintiff has asserted a specific cause of action for intentional or negligent infliction of emotional distress; (2) plaintiff has alleged a specific mental or psychiatric injury or disorder, (3) plaintiff has claimed unusually severe emotional distress; (4) plaintiff has offered expert testimony in support of his claim for emotional distress damages; and (5) plaintiff concedes that his mental condition is "in controversy" within the meaning of Fed.R.Civ.P. 35(a). LeFave v. Symbios, Inc., 99-Z-1217, 2000 WL 1644154, at *4-5; Thiessen v. General Electric Capital Corp., 178 F.R.D. at 569 (citing Turner v. Imperial Stores, 161 F.R.D. 89, 93-95 (S.D. Cal. 1995); Smith v. J.I Case Corp., 163 F.R.D. 229, 230 (E.D. Penn. 1995); Bridges v. Eastman Kodak Co., 850 F. Supp. 216, 221-222 (S.D.N.Y. 1994). See, also, Fox v. The Gates Corp., 179 F.R.D. 303, 307-308 (D. Colo. 1998)).
Although Plaintiff's have not asserted a separate cause of action for intentional or negligent infliction of emotional distress, have not indicated that expert testimony will be offered to support claims of emotional distress and have not conceded that their mental condition is "in controversy" within the meaning of Fed.R.Civ.P. 35(a), Plaintiff do allege, in response to Interrogatory 2, a "specific mental or psychiatric injury" and "unusually severe emotional distress" in the form of depression as a result of Defendants' alleged misconduct. In light of Plaintiff's' responses to Interrogatory 2, the Court finds that Defendants have shown good cause for the requested examination.
Conclusion
Based on the discussion above, Defendants' Motion for Order Directing Plaintiff's to Submit to Medical Examinations and Emergency Hearing Concerning Motion is granted as specifically requested regarding time, place, manner and conditions of examination. With regard to the scope of the examination, the Court further orders that the scope of the examination is limited to Plaintiff's' claims of mental anguish, suffering, bereavement and depression.
Rule 35 requires that an order "shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." Fed.R.Civ.P. 35(a).
IT IS SO ORDERED.
MOTION TO RECONSIDER
COMES NOW, the City of Overland Park, Kansas, pursuant to local rule D. Kan. 7.3, and moves this Court to reconsider its denial of the parties' Joint Motion to Amend Scheduling Order. See (Doc. #69). In support of this Motion, the City states the following.1. The original Motion to Amend Scheduling Order sought to push back the discovery deadline in this matter to allow for the conducting of additional discovery. Indeed, the only additional discovery needed to be conducted by the City is the depositions of the plaintiffs in this matter which the City has been unable to complete due to the delay of plaintiffs' counsel in responding to initial discovery, and then due to plaintiffs' counsel failure to provide deposition dates for these plaintiffs upon the request of defense counsel. More specifically the facts relevant to this Motion are as follows:
a. Some delay in scheduling the plaintiffs' depositions was due to plaintiffs' counsel's absolute failure to respond to the City's initial written discovery. More specifically, on March 26, 2001, the Defendant, City of Overland Park served both its First Set of Interrogatories to the Plaintiff as well as its First Request for Production of Documents to the Plaintiff upon Plaintiff's counsel, James E. Kiley, Jr., Pursuant Fed.R.Civ.P. 33 and 34, responses to this written discovery were due on April 30, 2001. Having received no response to this written discovery by May 11, 2001, defense counsel sent a letter to Plaintiff's counsel requesting that this discovery be answered immediately. Again, having received no response to this correspondence, defense counsel sent another letter on May 14, 2001 again requesting some sort of response regarding the written discovery. On or about May 16, 2001, Plaintiff's counsel contacted defense counsel's legal assistant and indicated that he had never received such discovery. During this conversation Plaintiff's counsel indicated that the address to which the written discovery was mailed was the former address of his office and is also his home address at which he still resides. Plaintiff's counsel therefore indicated that he did not know or understand why he did not receive this written discovery. He further indicated to defense counsel's legal assistant that he would respond to this written discovery as soon as possible. By letters dated May 16th to defense counsel, Plaintiff's counsel indicated that he would only respond to this written discovery within 30 days of his receipt of such written discovery instead of responding to such discovery in an expedited manner as originally promised. Plaintiff's counsel did not respond to this written discovery until June 14, 2001; however, such responses were incomplete. Specifically, plaintiff's counsel failed to execute and enclose the appropriate authorizations as they indicated they would do.
b. After receiving plaintiffs' responses to the City's first set of written discovery, but before receiving the necessary authorizations from the plaintiffs, defense counsel proposed deposing the plaintiffs in this matter on August 23rd and 24th (which was prior to the original close of discovery), which would allow the City sufficient time to obtain that final documentation necessary for plaintiffs' depositions after receiving the requisite authorizations. Indeed, on July 17, 2001, defense counsel in a letter to plaintiffs' counsel again inquired into the plaintiffs' availability for these deposition dates as plaintiffs' counsel wholly failed to respond to defense counsel initial inquiry into plaintiffs' availability. See Exhibit 1, 7/17/01 Correspondence. Defense counsel received no response to their request to depose the plaintiffs.
2. In light of the foregoing, the City requests this Court to reconsider its denial of the Joint Motion to Amend Scheduling Order to at least allow the City leave to depose the plaintiffs in this matter. Furthermore, the City likewise requests that the date for filing of dispositive motions be adjusted to allow time for the conducting of these depositions. It should be noted that dispositive motions are currently due on October 1, 2001, however, the Pre-Trial Conference in this matter has been continued and is not taking place until October 19, 2001 and the proposed pretrial order is not due to the Court until October 12, 2001. WHEREFORE, the defendant, the City of Overland Park, requests that this Court reconsider its denial of the parties Motion to Amend Scheduling Order, at least to the extent so as to allow the City of Overland Park, Kansas to conduct depositions of the plaintiffs to this action, and to allow the City sufficient time following such depositions to file any dispositive motions.
Defense counsel is well aware that the typical and wise practice of this Court is to set briefing for summary judgment after the pre-trial conference so that those issues of fact and law which are still in contention may be narrowed and so that the parties positions following discovery may be appropriately stated.
Via Telefax — 383-8339 James E. Kiley, Jr. KILEY. WEISNER FRACKOWIAK. LLP 6750 W. 93rd Street, Suite 220 Overland Park, Kansas 66212-1465
Re: Randall Phalp, et al. v. City of Overland Park, et al. Case No.: 00-2354-GTV MVP File No.: 2353.046
Dear Jim:
I am writing in an attempt to resolve the numerous discovery issues that seem to have developed in the last few weeks. First. I would like to address the production of the documents from our files. As you are aware, it is our position that the documents you have requested which include personnel and training riles. Internal Affairs' investigation tiles, police reports and witness statements are confidential. Under the provisions of Rule 26(c) we are allowed to seek a Protective Order from the Court before these documents are released. I understand that you will not sign the Stipulated Protective Order we have proposed. Therefore, we will be filing a Motion with the Court seeking a Protective Order. However, the polices and procedures in our files are not confidential and are available for your review and photocopying. These documents consist of approximately 130 pages. If you would like for us to send you a copy of these documents, please let me know and we will promptly do so. We are also experiencing difficulties in obtaining signed authorizations to obtain medical and education records from your clients as well as obtaining medical records on Aubrey Phalp through authorizations without first providing a death certificate. Last night you provided us with a report of death which we hope will take care of the problems obtaining Aubrey's medical records and have assured us that you continue to attempt to obtain signatures from your clients on the authorizations.
The second matter is the depositions which the parties wish to conduct before discovery closes on August 31, 2001. On July 11, 2001 you proposed to take the depositions of eight current and former correspondence. One of the officers is on vacation and two of the officers are retired making any further scheduling quite difficult. We have also requested the availability of the plaintiffs for deposition on August 23 and 24 and have not received a response to this request. Making matters worse is the fact that I have a three-week jury trial scheduled to begin in Federal Court on August 7, 2001. This trial involves 26 plaintiffs, two defendants and numerous complex litigation issues. Because of the pretrial preparation involved in that litigation and the fact that I will be in trial virtually the entire month of August only adds to the problems we are experiencing in our attempts at discovery in this litigation.
I think we both would agree that it would be more efficient to refrain from taking any depositions in this matter until the documents could be produced, reviewed and analyzed by all parties. Additionally, we do not possess a number of the documents in this matter as they were part of investigations conducted by the Miami County Prosecutor and the Kansas Bureau of Investigation. We have both undergone attempts to obtain documents from these sources. For the reasons set forth above, I am canceling the depositions of the officers which were described in my July 13th letter.
In response to your proposal contained in you July 11, 2001 letter, I would not oppose seeking a joint 30-day extension of all deadlines contained in the Scheduling Order which have not already expired,
May, I please hear from you regarding your thoughts on these matters.
Very truly yours.
Daniel B. Denk bcc: Tammy Williams