United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' EX PARTE APPLICATION
FOR AN ORDER REQUIRING PLAINTIFFS TO SUBMIT TO MENTAL
EXAMINATIONS BY REBUTTAL EXPERTS [ECF NO. 74] AND MODIFYING
NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' request for permission for their
rebuttal experts to perform mental evaluations of Plaintiffs
Sheila Garcia, Cassandra Garcia, C.N.G., and C.J.G pursuant
to Rule 35 of the Federal Rules of Civil Procedure. ECF No.
74. Plaintiffs opposed the application (ECF No. 77), and
Defendants filed a reply (ECF No. 79). For the reasons
explained below, the Court GRANTS
Defendants' ex parte application.
case stems from the actions of social workers for the County
of San Diego (“County”) in removing Plaintiffs
Cassandra Garcia and her two minor siblings from their home
and placing them in the County's Polinsky Children's
Center. Plaintiffs challenge the constitutionality of these
actions and also allege a claim for intentional infliction of
emotional distress. ECF No. 1. They seek damages for great
emotional and psychological distress, humiliation, and mental
anguish, in addition to other forms of relief. Id.
October 20, 2017, the parties exchanged their initial expert
designations and the reports of their retained experts. ECF
No. 74 at 2. Plaintiffs designated forensic psychologist
Glenn S. Lipson, Ph.D. and psychiatrist Lester M. Zackler,
M.D. Id. Dr. Lipson was retained “to address
the emotional distress suffered by [all four
Plaintiffs].” He “conducted evaluations of the
Garcia family, ” which included multiple days of
“behavioral observations” and interviews, and
“administer[ed] psychological testing.” Dr.
Zackler was retained “to assess [Cassandra's]
current mental status, review her past history, and to
provide a diagnostic assessment and treatment
to the Court's current scheduling order, fact discovery
closed on July 26, 2017, rebuttal expert reports were due to
be exchanged by November 10, 2017, and expert discovery is to
be completed by December 1, 2017. ECF No. 70.
Rule 35, a court may order a mental examination of a party
whose mental condition is in controversy, so long as the
examination is conducted by “a suitably licensed or
certified examiner.” Fed.R.Civ.P. 35(a)(1). The
requesting party must demonstrate good cause for the
examination and provide notice to all parties, including the
person to be examined. Fed.R.Civ.P. 35(a)(2)(A). If good
cause is shown, the court's order “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).
“good cause” and “in controversy”
requirements “are not met by mere conclusory
allegations of the pleadings-nor by mere relevance to the
case, ” unless the pleadings specifically assert a
mental or physical injury, such as in a negligence action.
Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964).
Merely claiming damages for emotional distress is
insufficient to place a party's mental condition
“in controversy.” Turner v. Imperial
Stores, 161 F.R.D. 89, 98 (S.D. Cal. 1995). Rather,
courts will order an independent mental examination where the
plaintiff alleges emotional distress damages and one or more
of the following:
(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
Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D.
seek permission to have their rebuttal experts conduct their
own independent mental examinations (“IMEs”) of
Plaintiffs before drafting rebuttal reports. ECF No. 74 at 1.
Plaintiffs object to Defendants' request, arguing that
Defendants should have anticipated Plaintiffs'
designations and made the request for these mental
evaluations during the fact discovery stage. Id. at
5, 7-10. Plaintiffs also point out that Defendants failed to
comply with this Court's Chambers Rules by raising their
issue ex parte and that Defendants have not
shown good cause for the Court to modify its scheduling order
to allow late discovery. Id. at 5-7. Finally,
Plaintiffs contend that granting Defendants' request
would prejudice Plaintiffs. Id. at 10-11.