United States District Court, S.D. California
ORDER DENYING DEFENDANT'S RULE 35 MOTION FOR A MENTAL EXAMINATION OF THE PLAINTIFF [ECF No. 41]
JILL L. BURKHARDT, Magistrate Judge.
On October 31, 2014, Defendant City of San Diego ("Defendant") filed a Rule 35 Motion for a Mental Examination of the Plaintiff, along with a declaration of Dr. Dominick Addario. (ECF No. 41.) Plaintiff Jack Robertson ("Plaintiff") filed an Opposition (ECF No. 44), and Defendant filed a Reply (ECF No. 47). For the reasons set forth below, Defendant's Motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Jack Robertson, a California resident with physical disabilities, filed a Complaint on June 25, 2013. The Complaint alleges lack of physical accessibility for persons with disabilities to the La Jolla Children's Pool, located in La Jolla, California. (ECF No. 1.) The Complaint further provides:
The only method of access from the public streets and right of way to the La Jolla Children's Pool beach is by a flight of stairs. There is no accessible path of travel for persons with disabilities. Each time that the plaintiff has swum at the Children's Pool, he has been bodily carried down the stairs by others. This is scary, frustrating, discomforting, embarrassing and difficult. Additionally, the plaintiff is unable to independently gain access to the beach. The lack of access and the inaccessible paths of travel have precluded the plaintiff from enjoying the Children's Pool beach on a full and equal basis.
( Id. at 3.) The Complaint sets forth two causes of action: (1) violation of American's With Disabilities Act; and (2) violation of California Disabled Persons Act. ( Id. at 1.)
On March 25, 2014, Plaintiff filed a Motion for Leave to File a First Amended Complaint. (ECF No. 17.) On May 21, 2014, United States District Judge Thomas J. Whelan denied Plaintiff's Motion. (ECF No. 23.) On October 31, 2014, Defendant filed the instant Motion, seeking an order from this Court requiring Plaintiff to submit to a mental examination by the Defendant's psychiatric expert, Dr. Dominick Addario. (ECF No. 41.)
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 35(a) provides that a Court may order a medical examination if a litigant's physical or mental condition is "in controversy" and there is a showing of good cause. "Rule 35 is to be construed liberally to allow the examination.'" Sanders v. Holdings, No. 11cv1590 LAB (MDD), 2012 WL 2001967, at *2 (S.D. Cal. June 4, 2012) (citing Tan v. City and Cnty. of S.F., No. C 08-01564 MEJ, 2009 WL 594238, at *2 (N.D. Cal. Mar. 4, 2009)). When ordering an examination, the Court "must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it." Fed.R.Civ.P. 35(a)(2)(B).
"A plaintiff's mental or physical condition is in controversy' when such condition is the subject of the litigation." Hernandez v. Simpson, No. ED CV 13-2296-CBM (SPx), 2014 WL 4090513, at *2 (C.D. Cal. Aug. 18, 2014) (citing Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013)). In determining whether a litigant's mental state is "in controversy, " courts in this district apply the test outlined in Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995).
In Turner, the Court held that a mental examination may be ordered when one or more of the following circumstances are present:
1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a 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(a).
Id. "In assessing whether good cause' exists, courts have considered the possibility of obtaining desired information by other means, whether plaintiff plans to prove her claim through testimony of expert witnesses, whether the desired materials are relevant, and whether plaintiff is claiming ongoing emotional distress.'" Conforto v. Mabus, No. 12cv1316 W (BLM), 2014 WL 3407053, at *3 (S.D. Cal. July 10, 2014) ...