The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Pending before the court is defendants' motion to compel plaintiff's attendance at a videotaped independent mental examination (IME) (Doc. 31).*fn1 A hearing on this motion was held on March 26, 2009, before the undersigned. Attorney Jay Jambeck appeared telephonically for plaintiff; defense counsel, John Kelley, appeared in person. The parties stipulated to a hearing on shortened notice (Doc. 30).
This case arises from an alleged injury of an 8-year old autistic child. Plaintiff has alleged that due to the actions of the defendants, he suffers from Post Traumatic Stress Disorder (PTSD). The parties agree that the defense is entitled to have an expert examine plaintiff. The issues in dispute is whether that examination can be videotaped, as requested by the defense expert, and whether plaintiff's mother should be compelled to participate in the examination. The parties agreed to a hearing on shortened notice as the discovery cutoff, for all non-expert discovery, is set for May 1, 2009.*fn2
Defendants bring this motion to compel (Doc. 31) to compel plaintiff's attendance at a videotaped IME on April 1-2, 2009, pursuant to Rule 35(a) of the Federal Rules of Civil Procedure, to be conducted by Dr. Gilbert Kliman. Defendants also request a court order to compel plaintiff's mother, G.B., to participate in the examination of plaintiff. Plaintiff agrees that he is required to submit to an IME, and has not objected to the examination being conducted by Dr. Kliman, but objects to Dr. Kliman's intention of videotaping the examination and requiring the participation of his mother.*fn3
Rule 35 allows the court to order "a party whose mental . . . condition . . . is in controversy to submit to a . . . mental examination by a suitably licensed or certified examiner." Rule 35(a)(1). In addition, the court is required to "specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Rule 35(a)(2)(B).
In resolving the issue of whether the IME can be recorded, the parties acknowledge that courts have come down on both sides of the issue. Generally, the court has discretionary authority under the discovery rules to permit the presence of a third person or a recording device at a court-ordered psychiatric examination. See Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620 (D. Kan. 1999). A review of the relevant case law on this matter shows that this issue usually arises in the context of a plaintiff requesting the presence of a third party at, or a recording of, the examination. This case is the opposite. Here, the defense expert is requesting the right to videotape the examination in order to facilitate a complete examination of the plaintiff.*fn4
When a plaintiff requests the examination be recorded, the request usually involves concerns about improper questions or techniques during the exam, the need for emotional support regarding sensitive material, or concern that the exam will turn into a de facto deposition. None of those concerns are present in this case. Here, plaintiff is concerned that Dr. Kliman's use of the videotape will have a negative impact on plaintiff, and on the interview in general.*fn5
Because the mental examination provides one of the few opportunities for a defendant to have access to a plaintiff, and the only opportunity for a defendant to have a plaintiff examined by defendant's expert, some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination.
Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609-10 (C.D. Cal. 1995) (disallowing a third party observer, as plaintiff had requested, due to "[t]he potential for a third party observer to interfere with, or even contaminate, a mental examination").
Dr. Kliman states specific and reasonable reasons for requesting the use of the videotape. Dr. Kliman states that he routinely uses a small video camera as part of his diagnostic technique. He further states that, particularly with traumatized children, "a child's facial expressions, body language, movements and behavioral enactments communicate medically significant information which can be captured on videotape for the purposes of providing a fuller clinical picture of an individual's condition upon later review." (Declaration of Gilbert Kliman, M.D. (Doc. 33) at 2.) In addition, Dr. Kliman indicates the video camera he uses is small, is placed in a stationary location and no particular attention is drawn to the camera. No videographer will be present during the exam. The court has considered the concerns outlined by plaintiff's expert, Dr. Solomon, including the uncertainty of how plaintiff might react to being videotaped during his interview, and concerns about retraumatizing plaintiff. The court is sympathetic to plaintiff's condition, but as Dr. Solomon points out, plaintiff may suffer simply from the examination, as he did following Dr. Solomon's examination. The court does not wish to cause plaintiff any additional trauma, but Dr. Solomon even acknowledges there is no way to predict how plaintiff will react, and whether the addition of the unobtrusive video camera will cause additional trauma. Finally, Dr. Solomon raises a concern regarding the need to inform plaintiff about the use of the recording device. While the court does not argue with Dr. Solomon's opinion that a psychologist must inform the test-taker that the exam will be recorded, this issue can be easily addressed by so informing plaintiff's mother. Plaintiff is a minor, and therefore unable to authorize any medical procedure for himself. He is required to have parental authorization for any medical procedure, and the same can be true for the use of a video camera during his examination by Dr. Kliman. In the court's opinion, there is no reason to inform plaintiff himself that the examination will be recorded, so long as his parent is informed.*fn6 The court further notes that even Dr. Solomon acknowledges that there is no research which definitively proves, either way, whether videotaping impacts a child's answer. (Declaration of Dr. Paula Solomon (Doc. 37) at 6).
Plaintiff cites to Nicholas v. Wyndham Intern., Inc., 218 F.R.D. 122, 124 (D. V.I. 2003, in support of his position that the examination should not be videotaped. In Nicholas, the court did not allow defendant's expert to videotape a minor's examination. However, as plaintiff acknowledges, the court noted "that courts generally - but not always - prohibit video recording when there is a concern that allowing the recording will tend to make the examination adversarial." 218 F.R.D. at 124 (citing Holland v. United States, 182 F.R.D. 493, 496 (D.S.C. 1998), Tomlin v. Holecek, 150 F.R.D. 628, 634 (D. Minn. 1993)). The court found the magistrate judge properly exercised his discretion in denying the defendant's expert's request to videotape the ...