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Ortiz v. Potter

March 5, 2010

OLGA G. ORTIZ AND PATRICIA SOTO, PLAINTIFFS,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is defendant's motion seeking an order compelling plaintiffs Olga Ortiz and Patricia Soto to each attend and undergo a mental examination pursuant to Federal Rule of Civil Procedure 35(a).*fn1 (Dkt. No. 30.) The court heard this matter on its law and motion calendar on March 4, 2010.*fn2 Assistant United States Attorney Jason S. Ehrlinspiel appeared on behalf of defendant. Attorney Jeremy A. Graham appeared on behalf of plaintiffs. For the reasons that follow, the court grants defendant's motion.

I. BACKGROUND

Plaintiffs Ortiz and Soto filed the operative Third Amended Complaint against defendant John Potter, Postmaster General of the U.S. Postal Service ("USPS"), which relates to their respective employment with USPS. (Dkt. No. 22.) Both plaintiffs allege violations of federal law as a result of conduct by their respective supervisors at USPS. The undersigned refers those interested in a more detailed history of this action and the allegations contained in the Third Amended Complaint to the court's order denying defendant's motion to sever. (Dkt. No. 29.)

With respect to Ortiz, the Third Amended Complaint alleges claims for: sexual harassment in violation of Title VII, 42 U.S.C. §§ 2000e, et seq. ("Title VII"); racial harassment in violation of Title VII; disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. §§ 701, et seq. ("Rehabilitation Act"); failure to provide reasonable accommodation in violation of the Rehabilitation Act; failure to engage in the interactive process in violation of the Rehabilitation Act; failure to give full consideration to placement and advancement in violation of the Rehabilitation Act; and retaliation in violation of Title VII and the Rehabilitation Act. (See Third Am. Compl. ¶¶ 55-95.)

As to Soto, the Third Amended Complaint alleges claims for: disability discrimination in violation of the Rehabilitation Act; failure to provide reasonable accommodation in violation of the Rehabilitation Act; failure to engage in the interactive process in violation of the Rehabilitation Act; harassment based on physical disability in violation of the Rehabilitation Act; failure to give full consideration to placement and advancement in violation of the Rehabilitation Act; and retaliation in violation of the Rehabilitation Act. (See Third Am. Compl. ¶¶ 96-132.)

The Third Amended Complaint contains allegations specifically related to plaintiffs' respective claims of emotional distress based on defendant's alleged unlawful conduct. Each claim for relief stated in the Third Amended Complaint separately alleges that "[a]s a proximate result of Defendant's conduct, Plaintiff . . . has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to her damage in a sum according to proof." (See Third Am. Compl. ¶¶ 58, 63, 69, 75, 81, 86, 94, 100, 106, 112, 119, 124, 131.) In addition, the prayer for relief in the Third Amended Complaint seeks, among other things, "damages for emotional distress, humiliation, and mental anguish on all causes of action." (Id. at 33:22-23.)

II. LEGAL STANDARDS

The Federal Rules of Civil Procedure provide that the court "may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed. R. Civ. P. 35(a)(1). The party seeking to compel the mental or physical examination bears the burden to demonstrate not only that the physical or mental condition of the person to be examined is "in controversy," but also that the motion is supported by "good cause."*fn3 Fed. R. Civ. P. 35(a)(2)(A); see also Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964). In Schlagenhauf, the United States Supreme Court stated that the "in controversy" and "good cause" requirements are not met by "mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require 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." Schlagenhauf, 379 U.S. at 118.

The good cause requirement has been described as requiring a "showing that the examination could adduce specific facts relevant to the cause of action and necessary to the defendant's case." Ragge v. MCA/Univeral Studios, 165 F.R.D. 605, 609 (C.D. Cal. 1995). Moreover, the Supreme Court has stated that "what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant." Schlagenhauf, 379 U.S. at 118; accord Ragge, 165 F.R.D. at 609 ("'Good cause' is established by a showing that the defendant has no other method to discover relevant information; there is simply no less intrusive means" (citations and internal quotation marks omitted).).

Although the Ninth Circuit Court of Appeals has not addressed the "in controversy" requirement, the district court in Turner v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995), announced a test that has been regularly applied by district courts. See, e.g., Azevedo v. City of Fresno, slip op., No. 1:09cv0375 AWI DLB, 2009 WL 5216877, *3 (E.D. Cal. Dec. 30, 2009); Kob v. County of Marin, slip op., No. C 07-2211 JL, 2009 WL 3706820, *1 (N.D. Cal. Nov. 3, 2009); Ford v. Contra Costa County, 179 F.R.D. 579, 580 (N.D. Cal. 1998).*fn4 Under the Turner test, a bare claim for emotional distress will not, by itself, support an order compelling a mental examination under Rule 35(a). See Turner, 161 F.R.D. at 97 (stating that the weight of authority establishes that "the moving party must show more than that the party in question has claimed emotional distress"); accord Bowen v. Parking Auth. of City of Camden, 214 F.R.D. 188, 194 (D.N.J. 2003). Instead, the Turner test requires the party seeking to compel the mental examination to demonstrate that the party to be examined has claimed emotional distress and the presence of one or more of the following with respect to the proposed examinee: (1) a claim for intentional or negligent infliction of emotional distress, (2) an allegation of a specific mental or psychiatric injury or disorder caused by the alleged conduct, (3) a claim of "unusually severe" emotional distress, (4) an intent to offer expert testimony regarding the claimed emotional distress, or (5) a concession that the mental condition is "in controversy" within the meaning of Federal Rule of Civil Procedure 35(a). See, e.g., Ford, 179 F.R.D. at 580 (citing Turner, 161 F.R.D. at 95).

Under Turner, "garden-variety" emotional distress is not sufficient alone to place a party's mental state in controversy because "Rule 35(a) was not meant to be applied in so broad a fashion as to allow courts to order a mental examination whenever a plaintiff claimed emotional distress." Tan v. City and County of San Francisco, slip op., No. C 08-01564 MEJ, 2009 WL 594238, *1 (N.D. Cal. Mar. 9, 2009) (citing Turner, 161 F.R.D. at 97); cf. Sabee v. United Bhd. of Carpenters & Joiners of Am., Local No. 33, 126 F.R.D. 422, 426 (D. Mass. 1989) (holding that plaintiff had not placed his mental condition at issue through his "'garden variety' claim of emotional distress" such that it effectuated a waiver of the psychotherapist-patient privilege). One district court has characterized garden-variety claims for emotional distress as "claims of generalized insult, hurt feelings, and lingering resentment" that "do not involve a significant disruption of the plaintiff's work life and rarely involve more than a temporary disruption of the claimant's personal life." Javeed v. Covenant Med. Ctr., Inc., 218 F.R.D. 178, 179 (N.D. Iowa 2001).

Prior to Turner, the Northern District of California had produced the only published decision in this Circuit addressing the "in controversy" requirement of Rule 35(a), and ordered a mental examination based solely on plaintiff's claim of emotional distress. See Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1232 (N.D. Cal. 1993) (holding that although plaintiff maintained that she did not intend to present expert testimony at trial or to seek damages for incurred medical expenses, defendants were entitled to an order compelling a mental examination where plaintiff intended to "present evidence of 'normal' emotional distress"). District courts, including the Northern District, have declined to follow Smedley on the grounds that its holding is unsupported by authority or significant discussion and would "subject innumerable plaintiffs to mandatory yet unnecessary psychiatric examinations." Ford, 179 F.R.D. at 580; see also Turner, 161 F.R.D. at 93; Fox, 179 F.R.D. at 307 (characterizing Smedley as supporting a minority view).

The undersigned agrees with those district courts that have declined to apply the rule from Smedley and concludes that the rule from Turner, arrived at after a thorough analysis of the relevant case law, provides a persuasive and sound rule for most cases.*fn5 The Turner rule adequately balances the intended liberal construction of Rule 35 in favor of granting examinations, see Postell v. Amana Refrigeration, Inc., 87 F.R.D. 706, 707 (D.C. Ga. 1980), with the right of the party to be examined to avoid unnecessary personal invasions. See Curtis v. Express, Inc., 868 F. Supp. 467, 468 ...


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