The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER ON MOTION TO COMPEL MENTAL EXAM ) (Doc. 35)
On April 19, 2013, the parties in this action filed a Joint Statement of Discovery Disagreement. (Doc. 35). In the joint statement, Defendant Stericycle, Inc. ("Stericycle") seeks a motion to compel an independent mental examination of Plaintiff Margarito Montez ("Plaintiff') pursuant to Federal Rule of Civil Procedure 35. The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g). Having considered the joint statement, and the Court's file, the Court DENIES Defendant's Motion to Compel a Mental Examination. (Doc. 35).
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Margarito Montez filed this suit in the Superior Court of California, Fresno County on February 10, 2012. Stericycle removed the matter to this Court on April 2, 2012. According to the Complaint, Plaintiff worked as a full time route driver for Stericycle until his termination on January 6, 2011. (Pl's Complaint ("Compl"). ¶ 12, Doc 1-1). Prior to his termination, Plaintiff injured his knee on the job while exiting his vehicle during one of his medical waste pickups. Plaintiff alleges that he was seen by a medical specialist and was informed that his work related injury qualified for protection under the Family and Medical Leave Act ("FMLA"). Plaintiff's FMLA leave began on September 10, 2010. Compl. ¶ 14. When Plaintiff asked his Stericycle supervisor Chad Willhoite about his FMLA leave, Plaintiff alleges that he was told he was ineligible for FMLA because he was under the workers' compensation system. Compl. ¶ 15. Plaintiff proceeded with the belief that FMLA was inapplicable to his injury. Compl. ¶ 16.
Although Plaintiff's physician released him for light duty work on October 10, 2010, he was unable to return to full work duty until after undergoing surgery to repair his torn meniscus. When Plaintiff asked if he could pick up light duty shifts, Plaintiff's supervisor told him to return home until he could obtain a full release to return to work. After waiting to get surgery approved under the workers' compensation system, Plaintiff again called Stericycle and asked to return to work. Area Safety Manager Michael Storie told Plaintiff that he was unable to return to work until the surgery was complete, but that he would try to expedite the scheduling of Plaintiff's surgery. Compl. ¶ 18.
Plaintiff was terminated on January 6, 2011, by letter, due to the exhaustion of FMLA leave. Compl. ¶ 20. Plaintiff underwent a successful surgery to repair his knee on January 21, 2011 and was fully released by his doctor to "usual and customary duties" on March 21, 2011.
In his suit, Plaintiff asserts several causes of action for disability discrimination and retaliation. He seeks compensation for lost past and future earnings, as well as for the emotional anguish he suffered as a result of his unlawful termination. Compl. ¶ 23, 26.
The parties exchanged discovery requests and Stericycle deposed Plaintiff on October 23, 2012. At his deposition, Plaintiff testified that after his termination his fiance accused him of being "a different person." (Pl.'s Deposition, 281:1-7, Doc. 23, Ex. 2). His fiance called off their engagement explaining to Plaintiff that he had changed and was now always worried and angry. Id. Following Plaintiff's deposition, Stericycle requested that Plaintiff appear for a mental examination pursuant to Rule 35. Plaintiff's counsel refused, responding that given the deposition testimony of his client, he did not believe an examination was warranted.
Stericycle filed the instant motion to compel on March 7, 2013. On March 29, 2013, Plaintiff filed his opposition stating that the parties had not properly met and conferred. On April 4, 2013, the Court instructed the parties to meet and confer in a good faith effort to resolve the parties' differences and then file a joint statement if the parties are unable to resolve their discovery dispute.
On April 19, 2013, the parties filed a joint statement of discovery dispute. (Doc. 35).
Pursuant to Federal Rule of Civil Procedure Rule 35, Stericylce seeks an independent mental examination of Plaintiff by its retained expert, neuropsychologist, Dr. Howard Glidden in Fresno, California. The examination will relate to Plaintiff's alleged emotional injuries resulting from his termination from Stericycle.
In relevant part, Rule 35(a) provides: (1) In General. The court where the action is pending may order a party whose mental or physical condition-including blood group-is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.
To justify a mental examination under Rule 35, Stericycle must demonstrate (a) that Plaintiff has placed his mental condition "in controversy," and (b) "good cause" for the examination. Schlagenhauf v. Holder, 379 U.S. 104 (1964). "Good cause" generally requires a showing of specific facts justifying discovery. Factors that courts have considered include, but are not limited to: (1) the possibility of obtaining desired information by other means, (2) whether plaintiff plans to prove his claim through testimony of expert witnesses, (3) whether the desired materials are relevant, and (4) whether plaintiff is claiming ongoing emotional distress. See Turner v. Imperial Stores, 161 F.R.D. 89, 97-98 (S.D. Cal. 1995) ...