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Shirley A. Newman and Anthony C. Butler v. San Joaquin Delta Community College District

February 14, 2011


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


At the request of Defendant San Joaquin Delta Community College District ("District"), plaintiff Shirley A. Newman ("Newman") stipulated to attend and undergo an independent mental examination pursuant to Federal Rule of Civil Procedure 35. (Joint Statement ("JS") Dkt. No. 71 at 6.)*fn1 Although she agreed to undergo a mental exam, Newman sought to impose various limitations upon it and challenged the qualifications of the District's //// proposed examiner. (Id.) Presently before the court is the District's motion to compel Newman's mental examination on the terms and conditions the District requests. (Dkt. No. 53.)*fn2

The court heard this matter on its law and motion calendar on February 3, 2011. Attorney J. Anthony Abbott appeared on behalf of the District. Attorney Kenneth N. Meleyco appeared on behalf of Newman.

At the hearing, the court heard arguments from counsel on the issues of: (1) whether the District's proposed examiner is qualified to administer the examination; (2) whether the exam should have a time limit of less than the requested 11 a.m. to 5 p.m. sessions for two days; (3) whether the court should prohibit certain tests from being administered during the mental exam; (4) whether a "support person" should be present in the examination room for any portion of the mental exam; (5) whether the clinical examination portion of the mental exam and/or the testing portion of the mental exam should be videotaped; (6) and in the absence of an order permitting videotaping, whether the clinical examination portion of the mental exam should be audiotaped.

For the reasons described during the hearing and within this order, the court grants the District's motion, but permits audiotaping of the clinical examination portion of Newman's mental exam.


The operative Third Amended Complaint alleges that plaintiffs are husband and wife and were students enrolled in and attending classes at Delta College in March 2008.*fn3 (Third Am. Compl. ¶¶ 10-11, 13, Dkt. No. 40.) Newman allegedly "suffers from post-traumatic stress disorder and spinal damage and disease" and, as a result, always wears on her wrist a "medic- alert bracelet," which states, in part: "Diabetic, epileptic, Gabapentin, high blood pressure, psychotic disorder . . . ." (Id. ¶ 10.) The medic-alert bracelet also allegedly lists Anthony Butler, a plaintiff in this action, as an emergency contact and contains contact information for Butler. (Id. ¶ 10.) Plaintiffs allege that as a result Newman's disabilities, Newman suffers from "severe and extreme anxiety" from time to time. (Id. ¶ 13.) They also allege that Delta College was aware of Newman's disabilities. (Id.)

On March 13, 2008, plaintiffs were allegedly attending classes in separate classrooms at Delta College. (Third Am. Compl. ¶ 11-12.) Plaintiffs allege that at approximately 11:30 a.m., Newman began suffering from "severe and extreme anxiety" and exited her classroom and went to the classroom where Butler, her husband, was attending class. (Id. ¶ 13.) This was allegedly Newman's "usual course of conduct when struck by anxiety" and, when Newman reached her husband's classroom, the instructor allegedly escorted Newman and Butler to a private room. (Id.) Once in the private room, Newman allegedly "knocked some items off a desk and said she was looking for something to hurt somebody." (Id.) A woman who was in the room at the time allegedly called the police and reported that Newman was ill. (Id.) Plaintiffs allege that two officers, Delta College Police Officers Ruley and Wood, were dispatched to the scene. (Id. ¶ 14.)

Plaintiffs allege that although they were "peacefully leaving" the classroom when the Officers Ruley and Wood arrived, the officers attacked plaintiffs. (See Third Am. Compl. ¶ 15.) Briefly stated, plaintiffs allege that Officers Ruley and Wood attacked Butler without provocation and used unnecessary and unreasonable force in detaining and restraining Butler. (See id.) They also allege that Officer Ruley threw Newman "against a stout wall with great and unreasonable force." (Id.) Plaintiffs allege that they were then "falsely imprisoned and detained." (Id.)

Plaintiffs allege that they were temporarily suspended from Delta College for an alleged assault on a Delta College police officer. (See Third Am. Compl. ¶ 21(I).) As to Newman, continued enrollment at Delta College was allegedly contingent on submitting a recent evaluation by a "licensed (MD) psychiatrist regarding her treatment plan." (Id. ¶ 21(m).) Newman was allegedly denied enrollment because she submitted only a letter from a therapist. (Id. 21(n).) Plaintiffs allege, however, that Newman's record was ultimately cleared. (Id. ¶¶ 21(o)-(p).)

Plaintiffs allege that they "were hurt in their health, strength and activity" and sustained "shock and injury to their nervous system and person, all of which said injuries have caused, and continue to cause said Plaintiffs great mental, physical, and nervous pain and suffering." (Third Am. Compl. ¶ 16*.)*fn4 Plaintiffs further allege that their injuries "will result in some permanent disability." (Id.) Additionally, they allege a loss of consortium as to Newman in that Newman's "physical and emotional injuries" have left her "unable to perform the necessary duties as a wife and the work and services usually performed in the care, maintenance and management of the family home." (Id. ¶ 19*.)

Plaintiffs' Third Amended Complaint alleges numerous claims against defendants. Particularly relevant here, plaintiffs allege claims for intentional infliction of emotional distress and negligent infliction of emotional distress against all defendants. (See Third Am. Compl. ¶¶ 28-35.) Additionally, plaintiffs allege that the District violated the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq., as to her and that, as a proximate result of such violation, she "[e]xperienced and continues to experience guilt, hardship, anxiety, indignity, and severe mental and emotional anguish." (See Third Am. Compl. ¶ 55(b).)

On November 23, 2010, counsel for the District requested, via e-mail, that Newman voluntarily submit to a neuropsychological examination, to be conducted by Richard J. Perrillo, Ph.D., in San Francisco, California, and provided Newman with a proposed stipulation and order regarding that examination. (Abbott Decl. ¶¶ 5-6 & Ex. 3; Prop'd Order, Dkt. No. 53-3, Exh. 3 at 2-3.) In a letter dated November 23, 2010, Newman's counsel explained that Newman would not submit to the neuropsychological examination because Newman was not claiming any "brain damage."*fn5 (Abbott Decl. ¶ 7 & Ex. 4.)

In response, the District's counsel sent a letter, dated November 24, 2010, to Newman's counsel explaining why the District believed good cause existed to support the neuropsychological examination. (Abbott Decl. ¶ 8 & Ex. 5.) In a letter dated December 1, 2010, Newman's counsel conveyed that Newman would not voluntarily submit to the requested examination, arguing that good cause for the examination did not exist because Newman was not claiming brain damage and that the subpoenaed medical records would be adequate substitutes for the examination. (Abbott Decl. ¶ 9 & Ex. 6.)

On December 8, 2010, counsel for the District and Newman met and conferred about the proposed examination and other discovery matters via telephone and, after approximately 30 minutes of discussion, Newman's counsel conveyed that Newman would not agree to the independent neuropsychological examination under any circumstances. (Abbott Decl. ¶ 10.) Also on December 8, 2010, Newman's counsel sent a letter to the District's counsel explaining that Newman would not agree to the neuropsychological examination. (Abbott Decl. ¶ 11 & Ex. 7 ("In regard to the issue of your requested neuropsyche examination, again, we are totally opposed to that on the grounds that there has been no brain damage. If this were a mental examination with a psychiatrist, of course, the issues would be totally different.").) On December 10, 2010, the District's counsel sent Newman's counsel a letter expressing that the District would be filing a motion to compel an independent neuropsychological examination. (Abbott Decl. ¶ 12 & Ex. 8.)

The District's motion to compel was originally filed on December 10, 2010. (Dkt. No. 53.) The hearing on that motion was rescheduled three times to permit further meeting and conferring. (Dkt. Nos. 57, 69, and 70.)

Since the original filing of the motion in December 2010, the parties have been able to pare down their disputed issues. Significantly, the parties have stipulated that:

(1) Newman's mental examination may occur in Stockton; (2) Dr. Perrillo may conduct a "standard verbal interview" with plaintiff (but not testing); (3) Dr. Perrillo may administer the "MMPI" but not the "MMPI-RF." (JS at 6.) The parties' remaining dispute is about whether various limitations should be imposed upon the stipulated exam.

According to the joint statement, the remaining disputed issues are:

(A) whether Dr. Perrillo can administer any psychological or neuropsychological tests upon Newman during the mental exam; (B) which specific tests Dr. Perrillo may administer during the exam; (c) the duration of the exam; (D) whether Newman may have a "support person" in the room during the clinical interview portion of the exam and/or the testing portion; (E) whether the clinical examination and/or testing may be recorded. (JS at 6.)

Newman argues that Dr. Perrillo is unqualified to conduct all aspects of the exam, that he seeks to perform various "redundant" and "unnecessary" tests upon Newman, and that an exam with six-hour sessions over two days is unreasonably lengthy. (JS at 3, 7-12; Dkt. No. 53-3.) Plaintiff argues that there is good cause requiring a "support person" to accompany her during all portions of the exam. (JS at 15-16.) Plaintiff ...

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