Respondent's motion to have his rebuttal expert, Dr. Dunn, conduct a mental examination of petitioner came on for hearing April 14, 2010. Paul Bernardino and Heather Gimle appeared for respondent. Tivon Schardl and Robert Bacon appeared for petitioner. Upon review of the motion and the documents in support and opposition, including petitioner's April 28 response to respondent's reply, upon hearing the arguments of counsel and good cause appearing therefor, the court finds and orders as follows.
The standards for determining whether or not to permit a mental exam are found in Rule 35 of the Federal Rules of Civil Procedure. Rule 35 provides that the court may, for good cause shown, order a physical or mental exam by a "suitably licensed or certified examiner" of a party whose physical or mental condition is "in controversy." Fed. R. Civ. P. 35(a)(1), (2). Good cause is also required for discovery in a habeas proceeding. Rule 6, Rules Governing Section 2254 Cases. See Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course"). The Court in Bracy held that a party seeking discovery must make "specific allegations" showing reason to believe he could prevail on the merits if the facts are more fully developed. Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 295 (1969)).
The primary case regarding the scope of Rule 35 is Schlagenhauf v. Holder, 379 U.S. 104 (1964). There, the Supreme Court stated:
The courts of appeals in other cases have also recognized that Rule 34's good-cause requirement is not a mere formality, but is a plainly expressed limitation on the use of that Rule. This is obviously true as to the 'in controversy' and 'good cause' requirements of Rule 35. They 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. Obviously, 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.
379 U.S. at 118. Relying on Schlagenhauf, federal courts have held that the party seeking a mental health exam must show both that the proposed examinee's mental health is "in controversy" and that there is "good cause" for the examination requested. A few courts, without explanation, elide the "in controversy" and "good cause" requirements by granting a Rule 35 request where mental or physical health is a significant issue in the case. See, e.g., Regan v. Trinity Distribution Services, Inc., 251 F.R.D. 108, 110 (W.D. N.Y. 2008); Nuskey v. Lambright, 251 F.R.D. 3, 6 (D. D.C. 2008); Benham v. Rice, 238 F.R.D. 15 (D. D.C. 2006); Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 322 (N.D. Ga. 2000).*fn2 While recognizing the two requirements "are necessarily related," the Court in Schlagenhauf made clear that showing "good cause" requires more than just showing that mental health is "in controversy." The movant must show good cause exists "for each particular examination" and requires the court to consider the movant's ability to obtain the information by other means. 379 U.S. at 118. It is important to note that the present case is a habeas case, unlike almost every Rule 35 case cited by the parties and uncovered by this court's research. A party seeking discovery in a habeas case must show good cause, unlike parties in other civil cases. Rule 6, Rules Governing Section 2254 Cases. The Rule's good cause requirement reinforces the good cause requirement of Schlagenhauf as applicable to this case.
Respondent cites a five-factor test described by the district court in Ford v. Contra Costa County, 179 F.R.D. 579, 580 (N.D. Cal. 1998). He argues that if one or more of the factors described in Ford is present, then a mental examination is appropriate under Rule 35 and Schlagenhauf. Respondent misreads Ford. The court in Ford considered only whether the plaintiff in that case had placed her mental condition in controversy. After recognizing that Rule 35 and Schlagenhauf require a showing that "(1) the adverse party's mental condition is in controversy, and (2) there is good cause for the examination," 179 F.R.D. at 579, the court went on to consider the first issue:
Although the Ninth Circuit has yet to answer this precise question, the bulk of the reported case law demonstrates that a claim for emotional distress damages, by itself, is not sufficient to place the plaintiff's mental condition in controversy for purposes of FRCP 35(a). Courts generally require the party seeking to compel the evaluation to establish an additional element. As the Turner court illustrated, the movant must also demonstrate that (1) the plaintiff has pled a cause of action for intentional or negligent infliction of emotional distress; (2) the plaintiff has alleged a specific mental or psychiatric injury; (3) the plaintiff has pled a claim for unusually severe emotional distress; (4) the plaintiff plans to offer expert testimony to support a claim of emotional distress and/or (5) the plaintiff has conceded that his or her mental condition is "in controversy" for purposes of FRCP 35(a).
179 F.R.D. at 579-80 (citing Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D.Cal.1995)). Because the Ford court found the plaintiff had not placed her mental state in controversy, it did not need to reach the question of good cause.
There is no question in the present case that petitioner's mental condition in 1986 and 1988, the years of the crime and trial, are in controversy. The issue is whether respondent has shown good cause to conduct a mental health examination. What amounts to good cause is not perfectly clear. Most cases consider Rule 35 requests to examine plaintiffs alleging mental distress as a result of some action of the defendants. Thus, factually, they are not particularly applicable here. However, this court discerns from those cases a number of factors to be considered in determining good cause under Rule 35 in this case. Each factor is examined below.
A. Leveling the Playing Field
Many district courts have ordered a Rule 35 examination because the other party, usually the plaintiff, intends to present expert testimony on the health issue. For example, in Simpson v. University of Colorado, 220 F.R.D. 354, 362 (D. Colo. 2004), the court relied only upon the plaintiff's concession "that she has placed her mental health 'in controversy' by claiming a specific psychiatric condition, Post-Traumatic Stress Disorder," and upon the plaintiff's stated "intention to present expert testimony at trial concerning her alleged emotional injuries."*fn3 The court also noted, without discussion, that allowing the defendant to cross-examine the plaintiff's expert was not sufficient to allow the defendant adequately to scrutinize the opinions of the plaintiff's expert. Id. at 362-63 (citing Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649, 652 (D. Kan. 2003); Fischer v. Coastal Towing Inc., 168 F.R.D. 199, 201 (E.D. Tex. 1996); Eckman v. University of Rhode Island, 160 F.R.D. 431, 434 (D. R.I. 1995)). See also Bethel, 192 F.R.D. at 322; Duncan v. Upjohn Co., 155 F.R.D. 23, 25 (D. Conn.1994); Tomlin v. Holecek, 150 F.R.D. 628, 632 (D. Minn. 1993). While most court opinions relying on the inadequacy of cross-examination do not describe why cross-examination is insufficient, in Womack v. Stevens Transport, Inc., 205 F.R.D. 445, 447 (E.D. Pa. 2001), the court asserts that the "promulgators of Rule 35 deemed that the opportunity to cross-examine was an 'insufficient test of truth.'" The Womack court cites Tomlin for this history of Rule 35. However, a ...