Opinion
Civil No. A-99-CA-434 JN.
May, 2000.
ORDER
Before the Court is Defendant, City of Austin's Motion for Order Compelling Psychiatric Examinations (Clerk's Doc. No. 21); Plaintiff's Response (Clerk's Doc. No. 23); and Defendant's Reply (Clerk's Doc. No. 24). The District Court referred the motion to the undersigned Magistrate Judge for a determination on the merits pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C to the Local Rules of the United States District Court for the Western District of Texas.
The City of Austin seeks to compel the Plaintiffs in this case to submit to a psychiatric examination to distinguish between the mental anguish caused by the arrest made the basis of the lawsuit, and past traumatic events in the Plaintiffs' lives. FED.R.CIV. P. 35 provides:
When the mental or physical condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by physician, or mental examination by a physician or psychologist . . . The order may be made only on motion for good cause shown . . .
FED. R. CIV. P. 35(a). Three requirements are necessary to enable a court to order a Rule 35 exam: (1) the party's physical or mental condition must be in controversy; (2) the expert must be either a physician or a psychologist; and, (3) good cause must be shown. Acosta v. Tenneco Oil Co., 913 F.2d 205, 208 (5th Cir. 1990). In analyzing Rule 35, the Supreme Court has held:
Sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident . . . and a general charge of negligence is lodged. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule. To hold otherwise would mean that such examinations could be ordered routinely in automobile accident cases. The plain language of Rule 35 precludes such an untoward result.
Schlagenhauf v. Holder, 379 U.S. 104, 121-122, 85 S.Ct. 234, 244 (1964). The Schlagenhauf Court noted that a plaintiff in a negligence action who asserts mental or physical injury clearly places her mental condition in controversy. However, in applying Schlagenhauf, Texas federal courts have held that the routine request for damages for mental anguish or emotional distress, as opposed to causes of action based upon emotional distress, does not place a party's mental condition in controversy. See, e.g. Burrell v. Crown Central Petroleum, Inc., 177 F.R.D. 376, 380 (E.D.Tex. 1997). The Burrell Court reasoned that routine claims of mental anguish do not place the mental condition in controversy, so long as they are ordinary, garden variety claims that an objective fact-finder can evaluate. Id., citing Lahr v. Fulbright Jaworski, L.L.P., 164 F.R.D. 204 (N.D.Tex. 1996).
The Plaintiffs in this case have not pled emotional distress as a cause of action; but, instead plead mental anguish as part of their damages. Defendants' sole argument to compel an examination is that it will be difficult to apportion mental anguish caused by the arrest and past stressful events in the Plaintiffs' lives. With regard to Plaintiffs Kendra Trejo, Shanaesia Trejo, and Mariesha Stevenson, merely moving for mental anguish damages does not place their mental condition in controversy. That these particular Plaintiffs may rely heavily on mental anguish as a portion of their damages does not place their mental condition in controversy, and defense counsel will be free to seek discovery regarding their claim and the Plaintiffs will be subject to cross examination. Considering all of the above and the Supreme Court's admonition to compel psychiatric examinations judiciously, the Court finds these Plaintiffs' claims are the type that an objective fact finder can evaluate.
However, Plaintiff, Lue Pearson, goes beyond routinely requesting mental anguish damages by offering as an expert witness, her psychiatrist, Dr. Vinod Patel, to testify that her depression and anxiety were exacerbated by the incident. This type of claim is not one that an objective fact-finder can evaluate and apportion. Accordingly, Plaintiff Pearson has put her mental state in controversy and the City has shown good cause exists to support a psychiatric examination under Rule 35. Pearson's medical records are not sufficient to counter Pearson's claim as the mental injury is complex and differing specialists may disagree as to causation and apportionment. Therefore, the City is entitled to an independent examination. Duncan v. Upjohn Co., 155 F.R.D. 23 (D.C. Conn. 1994). However, there is nothing in Rule 35, or the cases interpreting it, that require the examination to take place outside the presence of Pearson's attorney. Acosta, 913 F.2d 205 at 210.
Accordingly, the City's motion to compel psychiatric examination is DENIED as to Plaintiffs Kendra Trejo, Shanaesia Trejo, and Mariesha Stevenson and GRANTED as to Plaintiff Pearson. Plaintiffs do not object to the examiner offered by the City, and the Court therefore ORDERS Plaintiff Pearson to submit to a psychiatric examination to be performed by Dr. Richard Edmund Coons. The parties are ORDERED to submit an agreed order to that effect that specifies the time, place, manner, conditions, and scope of the examination as Rule 35 requires within seven days of the date of this order.