ORDER GRANTING MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATION OF PLAINTIFF CHRISTINE NGUYEN (DOC. NO. 106)
WILLIAM V. GALLO, Magistrate Judge.
Pending before the Court is a motion filed by QUALCOMM INC., (hereinafter "Defendant") seeking a Federal Rule of Civil Procedure ("FRCP") 35(a) mental examination of CHRISTINE NGUYEN (hereinafter "Plaintiff"). Defendant filed an Ex Parte Application To Compel The Independent Mental Examination (hereinafter "IME") of Plaintiff (hereinafter "Motion to Compel"), wherein Defendant contends that Plaintiff placed her mental health in controversy by alleging severe and specific mental conditions, including depression, fear and conversion. (Mot. to Compel at 4-5.) Defendant asserts that good cause exists to allow the IME because Plaintiff claims ongoing psychological injury, the IME is necessary to enable Defendant to ascertain the existence of possible "pre-existing causes" to Plaintiff's injuries, and to assess the nature and amount of the claimed damages. Id. at 2, 4.
Plaintiff filed her Response In Opposition To Defendant's Motion To Compel Independent Mental Examination of Plaintiff (hereinafter "Opposition") wherein she alleges that her current mental condition is not in controversy. (Opposition at 2.) Plaintiff contends that her emotional distress is not ongoing, that she never stated in her deposition that the emotional distress she suffered was severe, and that her case only involves "garden-variety" allegations of past emotional distress. Id.
After reviewing the Motion to Compel, Plaintiff's Opposition, and supporting documentation, the Court hereby issues the rulings set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 3, 2009, Plaintiff filed a Complaint against Defendant. In her Complaint, Plaintiff alleges she was harassed, discriminated against, and eventually terminated from her employment with Defendant on August 20, 2008, because of her race, color, or national origin. Plaintiff also claims that she was repeatedly physically abused. (Compl. 1, 4.) The Complaint alleges seven causes of action, including claim four, "intentional infliction of emotional distress." Id. at 2. The Complaint details that Defendant's "extreme and outrageous conduct has indeed caused [Plaintiff] severe emotional distress." Id. at 4. Furthermore, Plaintiff demands that she be paid "a sufficient monetary sum to compensate her for the emotional distress ... she sustained." Id. at 6 (emphasis added). Plaintiff also alleges that she suffers from depression. Id. at 1.
The Complaint contains various other references where Plaintiff emphasizes the severity of her emotional state, including: (1) a November 29, 2008, email from Garry Benanti to Plaintiff stating, "Christine, I appreciate you trusting me with... the discussion about your thoughts and the depressed state that you are in; " (2) a December 17, 2008, letter from Plaintiff to her previous attorney stating, "I had so much of suffering and depressing at work ... I have so much of depression going on [in] my life since I was the[ir] Employee until now; " (3) Plaintiff's application for disability benefits in which she indicates that she stopped working in part, due to "depression, " and that her injuries were sustained on the following dates, "6/26/08, 8/20/08, 10/24/08, 11/17/08, until now [February 02, 2009];" (4) the Doctors Certificate included in the disability application which diagnoses Plaintiff with " major depression, single episode, severe, " and finds Plaintiff to have such other disabling conditions as "depression, anxiety everyday, insomnia, injury spells; " and (5) Plaintiff's March 12, 2009, Workers' Compensation Claim Form, which describes Plaintiff's injuries as consisting of " numbness to left pa[r]t of body, anxiety, depression, insomnia, fear, flashbacks. " Id. at 24, 31-32, 56-58, 81 (emphasis added).
Plaintiff's Complaint also includes approximately ten pages of medical documents purporting to show that she suffers from a variety of ailments including being "very nervous, " "shaking extreme, " suffering from "severe depression, " being treated by a psychiatrist for "conversion disorder, " and suffering a stroke. Id. at 45-47, 49.
In response to discovery, Plaintiff "produced dozens of pages of medical files to support her claims and named almost half a dozen psychiatric treaters." (Mot. to Compel at 2.) Defendant provided a sample of those documents, including a December 7, 2009, letter from Plaintiff's doctor, stating "[Plaintiff] has been suffering severe depression (job related since June 2008), " and that she is under care of a psychiatrist. Id. at 24 (emphasis added). Also, Defendant provided a letter from Plaintiff's doctor indicating that an MRI of Plaintiff's brain showed "no evidence of stroke." Id. at 26.
In March 2010, Plaintiff testified at a deposition. At the deposition, Plaintiff testified that she suffered from "depression" and "paralysis" as a result of Defendant's alleged harassment. (Mot. to Compel at 16-17.) Plaintiff also stated that she "was depressed... and very frightened... [to] go out or socialize with anyone." Id. at 17. Also, Plaintiff testified, "[e]very time I had an onset of depression I would think about the what happened. I have flashbacks of being beaten and I'm terrified when I see men particularly... I'm very afraid to go outside." Id . Finally, Plaintiff stated "I can't work. I have paralysis in my left leg. I have depression..." Id. at 19.
On June 21, 2013, Plaintiff filed the Opposition to the Defendant's Motion to Compel. In the Opposition, Plaintiff states that her mental condition does not currently persist, that it is not severe, and therefore that Plaintiff's current mental condition is not in controversy. (Opposition at 2-3.).
The Court acknowledges that upon appeal of Judge Michael M. Anello's Order granting Defendant's Summary Judgment Motion, the Ninth Circuit affirmed dismissal of all Plaintiff's causes of action except for Plaintiff's Title VII discrimination cause of action. The Court understands that, following the Ninth Circuit decision, Plaintiff has communicated a large monetary demand for damages, of which approximately 70% is for damages for emotional distress and pain and suffering resulting in physical injury from conversion disorder. Furthermore, Plaintiff is likely to offer expert testimony regarding her diagnosis of conversion disorder at trial.
On May 29, 2013, Defendant requested that Plaintiff submit to an IME. (Mot. to Compel at 3, 28.) Plaintiff refused and indicated that the instant Motion would be necessary. Id. at 4.
II. LEGAL STANDARD
FRCP 35(a) provides that a 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." FRCP 35(a)(1) (emphasis added). However, the order may only be made if there is also " good cause. " FRCP 35(a)(2)(A) (emphasis added). The moving party has the burden to show that the condition for which the examination is sought is "in controversy" and there exists "good cause" for the examination. See Schlagenhauf v. Holder , 379 U.S. at 119.
Although the Ninth Circuit has not addressed the "in controversy" requirement, a court in this district announced a test in Turner v. Imperial Stores , 161 F.R.D. 90 (S.D. Cal. Apr. 7, 1995), that has been regularly applied by district courts. See e.g., Montez v. Stericycle, Inc., 2013 WL 2150025, at *3 (E.D. Cal. May 16, 2013); Tamburri v. SunTrust Morg. Inc., 2013 WL 942499, at *3 (N.D. Cal. Mar. 11, 2013); Sanders v. Holdings, 2012 WL 2001967, at *2 (S.D. Cal. June 4, 2012); Hongwei Zhang v. United Technologies Corp., 2011 WL 3890262, at *1 (S.D. Cal. Sept. 2, 2011). Under the Turner test, the "in controversy" requirement is met where, in addition to a claim of emotional distress, the case involves one or more of the following: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff's concession that his or her mental condition is "in controversy" within the meaning of Rule 35. Juarez v. Autozone Stores Inc., 2011 WL 1532070, at *1 (S.D. Cal. Apr. 21, 2011) (quoting Turner , 161 F.R.D. at 95).
Although FRCP 35 "is to be construed liberally in favor of granting discovery, " "garden-variety" emotional distress is insufficient to put Plaintiff's mental state in controversy. Turner , 161 F.R.D. at 96; See also Schlagenhauf, 379 U.S. at 118. "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.'" Ortiz v. Potter , 2010 WL 796960, at *3 (E.D. Cal. Mar. 5, 2010) [quoting Javeed v. Covenant Medical Center Inc. , 218 F.R.D. 178, 179 (N.D. Iowa, Apr. 3, 2001)]. Another district court distinguished a garden-variety claim of emotional distress from "a claim of psychic injury or psychiatric disorder." Houghton v. M & F Fishing, Inc. , 198 F.R.D. 666, 668 (S.D. Cal. Jan. 10, 2001) [quoting Sabree v. United Broth. of Carpenters & Joinders of America, Local No. 33 , 126 F.R.D. 422, 426 (D. Mass. June 8, 1989)].
To establish "good cause" exists for the IME, the moving party generally must offer specific facts showing the examination is necessary and relevant to the case. See Gavin, at *3; Raggae, 165 F.R.D. at 609. Factors considered in assessing whether "good cause" exists include, but are not limited to: (1) "the possibility of obtaining desired information by other means;" (2) "whether plaintiff plans to prove her claim through testimony of expert witnesses;" (3) "whether the desired materials are relevant;" and (4) "whether plaintiff is ...