United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO COMPLETE THE INDEPENDENT MEDICAL EXAMINATION BY DR. ROSENBERG
JENNIFER L. THURSTON, Magistrate Judge.
Sara Ahmadi alleges that, while removing baggage from an overhead bin, a fellow passenger on a United Airline's flight dropped luggage on her head, causing her physical and emotional injuries. During the course of this litigation, Plaintiff submitted to an independent medical examination performed by Dr. Rosenberg, Defendant's retained expert. Defendant designated Dr. Rosenberg to rebut the opinions of Dr. Dugger, Plaintiff's retained expert.
Because Plaintiff believed the scope of Dr. Rosenberg's examination exceeded the scope of that performed by Dr. Dugger, she terminated the exam. Defendant now seeks to compel Plaintiff to complete the exam with Dr. Rosenberg. (Doc. 44.) For the reasons set forth below, Defendant's motion is GRANTED.
Plaintiff initiated this action by filing a complaint in Kern County Superior Court on June 10, 2014, alleging that on December 25, 2011, "United Airline permitted and caused a passenger to place a heavy bag on an overhead compartment, and that United Airline carelessly allowed the bag to fall on top of the plaintiff's head." (Doc. 1 at 8-9, ¶¶ 4-5.) Plaintiff alleges that as "a direct and proximate result" of Defendant's actions, her "pregnancy was terminated." (Id. at 10, ¶ 10.) In addition, Plaintiff asserts she suffered "injury to her nervous system and person, all of which injuries have caused, and continue to cause, plaintiff great mental, physical, and nervous pain and suffering." (Id. ) Based upon these facts, Plaintiff asserts the following causes of action: (1) negligence, (2) res ipsa loquitur, (3) negligence per se, (4) breach of contract, and (5) beach of the implied covenant of good faith and fair dealing. ( See generally Doc. 1 at 9-16.)
II. Legal Standard
Pursuant to Rule 35 of the Federal Rules of Civil Procedure, the Court may order a mental examination of a party whose mental condition is "in controversy." Specifically, Rule 35(a) provides: "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." Id. An order for examination "may be made only on motion for good cause and on notice to all parties and the person to be examined." Fed.R.Civ.P. 35(a)(2)(A). "Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule. To hold otherwise would mean that such examinations could be ordered routinely... The plain language of Rule 35 precludes such an untoward result." Schlagenhauf v. Holder, 379 U.S. 104, 121 (1964).
"Good cause" generally requires a showing of specific facts justifying the exam. The Court is to evaluate, for example, whether the information may be obtained through other means, whether the plaintiff plans to prove her claim through testimony of expert witnesses, whether the result of the examination would yield information that is relevant and whether plaintiff claims ongoing emotional distress. See Turner v. Imperial Stores, 161 F.R.D. 89, 97 (S.D. Cal.1995) (expert testimony); Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal.1995) (ongoing emotional distress); Schlagenhauf, 379 U.S. at 118-119 (information otherwise available).
Nevertheless, even where the mental condition is in controversy and good cause for the examination has been shown, it is still within the Court's discretion to refuse to order an examination. Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa.1990). Although the rule is construed liberally to allow the examination, the Court must balance the Plaintiff's interest in avoiding unnecessary invasion of his privacy against Defendant's right to a fair trial. Curtis v. Express, Inc., 868 F.Supp. 467, 468 (N.D.N.Y. 1994).
III. Discussion and Analysis
As an initial matter, the parties do not dispute that Plaintiff's mental status is in controversy and have agreed previously that Plaintiff would submit to an examination by Defendant's expert. However, the parties disagree about the allowable scope of the examination intended to evaluate her mental status. Plaintiff asserts that her retained expert, Dr. Dugger, "is a neurologist and his opinion is limited to the neurological field, " and offered opinions "limited only to the head injury and neurological aspect of the case." (Doc. 49 at 2.) By contrast, Dr. Rosenberg is a "Neuropsychiatrist, board certified in Neurology and Psychiatry. (Doc. 47-3 at 3) During his examination, Dr. Rosenberg administered the MMPI2 and TSI2 exams-which were not administered by Dr. Dugger. (Id.; Doc. 47-1 at 3, Rosenberg Decl. ¶ 4.) Plaintiff argues Dr. Rosenberg's examination was improper for a rebuttal expert because he administered tests that Dr. Dugger did not. (Id. at 3.)
On the other hand, Defendant argues that the examination by Dr. Rosenberg was not improper and did not exceed the scope of the exam performed by Dr. Dugger, who indicated in his report that he believed Plaintiff "had suffered a traumatic brain injury, cognitive and emotional injuries." (Doc. 47-1 at 3, Rosenberg Decl. ¶ 3.) Dr. Rosenberg received this report on April 21, 2015, prior to his examination of Plaintiff on April 25, 2015. (Id. ) According to Dr. Rosenberg, "the MMPI2, TSI2, and MMSE are standard forensic tests used to evaluate the injuries reported by Plaintiff, and opined in Dr. Dugger's report." (Id., ¶ 6.)
Plaintiff does not dispute that the MMPI2, TSI2 are proper methods to evaluate her injuries, and acknowledges Dr. Dugger administered an MMSE. (Doc. 49 at 3.) Her objection is based solely upon the fact that Dr. Rosenberg administered different objective testing than Dr. Dugger. At the hearing, Plaintiff's counsel expressed concern that the results of the two tests may generate evidence that Plaintiff is malingering or being dishonest in her responses. In this way, Plaintiff seems to take the position that because Dr. Dugger did not administer objective testing that given rise to a validity analysis, Defendant could not do so; the Court disagrees. Indeed, if this were the case, no party would ever submit to testing that contained validity scores in order to prevent the opponent from raising this issue. On the other hand, Plaintiff offers no authority for the proposition that a rebuttal expert is limited to the same evaluative tools. Indeed, attacking the inadequate analytical methods used by a retained expert when forming his opinions is fully within the province of a rebuttal expert.
Notably, Fed.R.Civ.P. 26(a)(2)(D)(ii) allows a rebuttal expert to express opinions "on the same subject matter identified by another party." (Emphasis added) Dr. Dugger's report indicates implicitly that he intends to opine that Plaintiff suffers from depression, anxiety and post-traumatic stress disorder (Doc. 47-4 at 160) and it indicates explicitly that he will opine that these emotional conditions were caused by the event at issue. Id. at 16-17. Thus, Defendant is entitled to counter ...