Summary
declining to restrict the IME physician from administering a specific type of test
Summary of this case from Madej v. MaidenOpinion
Civil Action 2:10-CV-332.
May 17, 2011
OPINION AND ORDER
This is an employment action in which Michelle C. Powers and Christina M. Brown allege that they were subjected to sexual harassment and were unlawfully retaliated against and eventually discharged from employment by defendant. The Amended Complaint, Doc. No. 19, asserts claims under Title VII, 42 U.S.C. § 2000e-5, O.R.C. § 4112.99 and Ohio's common law and seeks recovery of, inter alia, compensatory damages. Id., at 25. This matter is now before the Court on defendant's Motion to Order a Psychological Examination of Plaintiff Michelle Powers, Doc. No. 32 ["Defendant's Motion"].
As it relates to Defendant's Motion, the Amended Complaint alleges that plaintiff Powers "was treated by a mental health care counselor for the emotional distress and mental anguish she suffered due to the hostile environment, retaliatory differential treatment, and suggestion that she resign." Amended Complaint, ¶ 97. Defendant asks that plaintiff Powers submit to a psychological examination by Lee Howard, Ph. D., on a date to be determined by the parties. In asking for the examination, defendant notes that plaintiff Powers has placed her mental status in controversy and has identified as possible witnesses on her behalf three individuals who apparently provided counseling services to her. See Plaintiff Michelle Powers' Supplemental Answers to Defendant's First Set of Interrogatories, Exhibit 2 to Defendant's Motion. Defendant represents that the examination is expected to last no more than four (4) hours, including a 40-60 minute clinical interview and the administration of three (3) standard tests. Affidavit of Angelique Newcomb, ¶ 3, attached as Exhibit 4 to Defendant's Motion; Declaration of Lee Howard, Ph.D., ¶ 1, attached as Exhibit A to Defendant Chase Bankcard Services, Inc.'s Reply Brief in Support of Its Motion to Order a Psychological Examination of Plaintiff Michelle Powers, Doc. No. 37 ["Reply"].
A court may order the mental examination, by a "suitably licensed or certified examiner," of a party whose mental condition is in controversy. Fed.R.Civ.P. 35(a)(1). However, such an order
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
Plaintiffs initially suggest that Defendant's Motion fails to sufficiently specify the terms and scope of the examination. Plaintiffs' Memorandum in Opposition of Defendant Chase Bankcard Services, Inc.'s Motion to Order a Psychological Examination of Plaintiff Michelle Powers, Doc. No 36, at 2 ["Plaintiffs' Memorandum contra"]. However, Rule 35(a) makes clear that it is a court's order that must specify the "time, place, manner, conditions, and scope of the examination," not a party's motion. See Rule 35(a)(2)(B). In any event, plaintiffs appear to concede that, in light of plaintiff's alleged diagnosis and treatment of post traumatic stress disorder, defendant is entitled to the requested examination. Plaintiffs' Memorandum contra, at 3-4. This Court concludes that defendant has satisfied the requirements of Rule 35(a). Plaintiff Powers will therefore be required to undergo a mental examination.
Plaintiffs ask that the Court impose certain limitations on the terms of the examination. Specifically, plaintiffs ask (1) that the scope of the examination be "confined in time and subject matter to stressors in [plaintiff Powers'] life during the period after January 2005, when she started to work for Chase;" (b) that only the MMPI-2 and DAPS tests be administered; (c) that the examination not include inquiry into "other sexual behavior" or plaintiff Powers' "sexual predisposition;" and (d) that the examination be tape recorded. Plaintiffs' Memorandum contra.
A.
The Court declines to limit the scope of the examination to the period after the commencement of plaintiff's employment by defendant. Defendant has the undisputed right to vigorously defend against plaintiff Powers' claims against it, including her allegation that she now suffers from post traumatic stress disorder as the proximate result of defendant's misconduct. To arbitrarily limit Dr. Howard's examination to the period beginning with defendant's employment of plaintiff Powers would be to impose unreasonable and unwarranted contraints on defendant's ability to litigate its case.B.
Plaintiffs also argue that Dr. Howard ought not be permitted to administer the Structured Inventory Malingering Symptomatology Test [the "SIMS" test]. According to plaintiffs, "[i]t is onconceivable that Dr. Howard will be permitted to tell a jury that Ms. Powers' test score on the SIMS demonstrate malingering. Their credibility assessment, rather than the SIMS score, will control at a jury trial." Plaintiffs' Memorandum contra, at 14-15. Dr. Howard has expressed his intention to administer this test, which he characterizes as "scientifically accepted." Declaration of Lee Howard, Ph.D., ¶ 1. Although plaintiffs surmise that the results of this test will not be admissible at trial, that speculation does not justify the restraint requested by plaintiffs on Dr. Howard's professional judgment. See Fed.R.Evid. 703 ("If of a type reasonably relied upon by experts in the particular field in forming [expert] opinions or inferences upon the subject, the facts or data [underlying the expert opinion] need not be admissible in evidence in order for the opinion or inference to be admitted").
C.
Defendant agrees that Dr. Howard's examination will not include inquiry into the "off-duty sexual conduct" of plaintiff Powers. Reply, at 11. However, defendant insists that Dr. Howard must be permitted to inquire about sexual abuse in the personal history of plaintiff Powers, if any, and about her sexual conduct at work. Id. The former area of inquiry, defendant argues, goes to the issue of causation and the latter area of inquiry goes to plaintiff's alleged subjective response to her work environment. This Court agrees that these areas of inquiry fall within the ambit of discoverable information, see Fed.R.Civ.P. 26(b)(1), and concludes that plaintiff Powers has not established that a protective order imposing an absolute prohibition on inquiry into these areas is warranted. See Fed.R.Civ.P. 26(c)(1).
The Court also rejects plaintiff's argument that Fed.R.Evid. 412 prohibits discovery of this information. "In an action for sexual harassment, for instance, . . . some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant. . . ." Advisory Committee Notes to Rule 412.
D.
Plaintiffs argue that their request that the examination be tape recorded is justified by "the [l]evel of [a]dversariality at [b]ar." Id., at 4. Plaintiffs' request departs from the normal procedure in federal courts under Rule 35, "which is that the examination take place without the presence of third-party observers or recording devices." Morrison v. Stephenson, 244 F.R.D. 405, 407 (S.D. Ohio 2007). Moreover, according to Dr. Howard, the presence of a recording device during his examination will "interfere[] with the one-on-one communication that is essential to the evaluation process, prohibit[] the establishment of rapport, and unavoidably establish[] an adversarial, mistrusting expectation by the individual being examined." Declaration of Lee Howard, Ph.D., ¶ 2. Plaintiff Powers concedes that she "lacks a specific factual basis for believing that Dr. Howard will be unprofessional." Plaintiffs' Memorandum contra, at 8. Absent evidence of potential abuse during the course of the examination, this Court is unwilling to authorize the unusual limitation proposed by plaintiff Powers on this not-so-unusual examination. See Morrison, 244 F.R.D. at 407 ("[W]ithout evidence that some improper conduct is likely . . ., [to permit a recording] would essentially make routine the ordering of a videotape recording of any mental or physical examination conducted under Rule 35").In sum, Defendant's Motion, Doc. No. 32, is GRANTED. Plaintiff Powers is ORDERED to submit to a psychological examination by Dr. Howard under the terms and conditions articulated in Defendant's Motion and at a time and date to be agreed to by the parties.