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Garcia v. County of San Diego

United States District Court, S.D. California

November 14, 2017

SHEILA GARCIA, et al., Plaintiffs,
COUNTY OF SAN DIEGO, et al., Defendants.



         Before 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.

         I. BACKGROUND

         This 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.

         On 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 plan.”[1]

         Pursuant 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.


         Under 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).

         The “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 35(a).

Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995).[2]


         Defendants 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.

         a. Proc ...

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