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Conforto v. Mabus

United States District Court, S.D. California

July 10, 2014



BARBARA L. MAJOR, Magistrate Judge.

Currently before the Court is Defendant's June 23, 2014 Motion to Compel the Independent Psychiatric Examination of Plaintiff [ECF No. 24-1 ("MTC")], Plaintiff's June 27, 2014 opposition [ECF No. 25 ("Oppo.")], and Defendant's July 1, 2014 Reply [ECF No. 26 ("Reply")]. For the reasons set forth below, Defendant's motion is GRANTED.


The above-entitled matter was initiated on June 1, 2012 when Plaintiff filed a complaint for gender and age discrimination and retaliation. ECF No. 1. Defendant filed a motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1) and 12(b)(6) on October 19, 2012 [ECF No. 6] which was withdrawn on May 31, 2013. ECF Nos. 12 and 13. On November 26, 2013, Defendant answered the complaint [ECF No. 14] and the Court held an Early Neutral Evaluation Conference on December 20, 2013 [ECF No. 17]. After a January 27, 2014 telephonic Case Management Conference, the Court issued a Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings. ECF No. 20.

On June 19, 2014, the parties jointly contacted the Court regarding a discovery dispute brought by Defendant concerning Plaintiff's objections to Defendants' request for an Independent Psychiatric Evaluation of Plaintiff. ECF No. 23. After the call, the Court issued a briefing schedule [id.] and the parties filed their pleadings in accordance with it. See MTC, Oppo., and Reply.


FRCP 35(a) allows the Court to order a party "to submit to a physical or mental examination by a suitably licensed or certified examiner" when that party's mental or physical condition is in controversy. FRCP 35(a). The order "(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Id.


Defendant argues that because Plaintiff has "alleged a whole host of emotional distress related damages against the Navy, " is seeking monetary damages for emotional distress, and has "designated three health care providers to opine on the toll her supervisors' alleged improper conduct has taken on her mental state and emotional condition, " its retained expert, Dr. Alan Abrams, M.D., J.D., FCLM, should be permitted to conduct an Independent Psychiatric Examination ("IPE") of Plaintiff. MTC at 2; ECF No. 24-2, Declaration of Dianne Schweiner ("Schweiner Decl.").

Plaintiff argues that Defendant's motion should be denied as the request is overbroad and untimely. Oppo. at 1-2. In addition, Plaintiff contends that Defendant has failed to show there is good cause for an IPE and that since Plaintiff's claims of emotional distress are "garden variety[, ]" there is no evidence that her mental state is actually "in controversy." Id. at 6-7. Counsel notes that the Notice requires Plaintiff to travel from her residence in Idaho to Southern California. Id. at 8. Finally, Plaintiff contends that the motion should be denied because Defendant did not make a good faith effort to secure the IPE by stipulation and because Dr. Abrams has already submitted his report and the only purpose of the examination would be to support an opinion that he has already provided or to change it all together "render[ing] illusory the report that was due on June 13, 2014." Id. at 9. Plaintiff requests that if the Court does grant the motion, her counsel be permitted to attend the IPE and the order be narrowly tailored and include

(1) the clinical name of each test to be conducted; (2) the amount of time required for each test; (3) the clinical purpose and basis for each test; (4) the specific subject parameters of the oral examination and the time that will be required to complete the oral portion of the examination; (5) whether the examination will be recorded; and (6) the clinical nature of all paper and pencil tests.

Id. at 8.

Defendant replies that it is "disingenuous" for Plaintiff to allege that Defendant's conduct caused her anxiety, depression, elevated blood pressure, and a general deterioration of Plaintiff's health, and then claim that those conditions "merely constitute garden variety' emotional distress." Reply at 2. Defendant argues that its expert should have the same opportunity that Plaintiff's experts were given to examine Plaintiff and determine if any causation exists. Id . Defendant notes that its request is not overbroad and that since Plaintiff chose to file her complaint in the Southern District of California, she cannot avoid an IPE simply because she chose to move to Idaho. Id. at 3. Defendant further argues that since Plaintiff will be in San Diego on July 22, 2014 for her deposition, requiring Plaintiff to attend an IPE on July 21, 2014 would not require any additional travel by Plaintiff. Id . Defendant highlights the fact that the scope of the IPE as outlined in the Notice is standard and that Plaintiff's counsel has failed to show "special circumstances" necessary ...

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