United States District Court, S.D. California
ORDER: (1) GRANTING EX PARTE MOTION FOR PLAINTIFF TO
SIT FOR MENTAL EXAMINATION; AND (2) GRANTING IN PART AND
DENYING IN PART MOTION TO AMEND SCHEDULING ORDER [ECF NO.
NITA L. STORMES UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' ex parte motion for an
order (1) requiring Plaintiff Bernardo Luque-Villanueva to
submit for a mental examination by their retained expert
witness and (2) amending the scheduling order. ECF No. 37.
The Court ordered Plaintiff to respond to the motion, and
Plaintiff filed an affidavit in opposition. ECF Nos. 38, 39.
Defendants requested an opportunity to respond, which the
Court granted, and filed a reply. ECF No. 40. For the reasons
set forth below, the Court (1) GRANTS the
motion for Plaintiff to sit for a mental examination; and (2)
GRANTS IN PART AND DENIES IN PART the motion
to amend the scheduling order.
MOTION FOR MENTAL EXAMINATION
case arises from an altercation between Plaintiffs and
Defendant San Diego County Deputy Sheriff James Steinmeyer
that took place January 23, 2016. ECF No. 19 ¶¶ 26.
Plaintiffs allege that they exited a bar early that morning,
went into a 7-Eleven store with their friends, and when they
exited the store, Defendant Steinmeyer and other officers
approached them and pointed a taser at them, ordering them to
put their hands behind their backs. Id. ¶¶
31-40. Plaintiffs allege that they were not drunk or acting
disorderly at the time. Id. ¶ 43. Plaintiffs
allege that Defendants then sprayed them with pepper-spray,
and officers physically forced Plaintiff Luque-Villaneuva to
pull his hands behind his back and strangled and choked him
as he was tackled and held on the ground. Id.
request that Plaintiff Luque-Villanueva be ordered to sit for
a mental examination. On March 30, 2018, the date on which
the parties exchanged initial expert witness disclosures,
Plaintiff designated a clinical and forensic psychologist,
Dr. Nina Rodd, as a retained expert witness and submitted her
expert report. ECF No. 37 at 1; see also ECF No. 39,
Ex. A. Dr. Rodd was referred in order to evaluate whether
Plaintiff “suffer[s] from any psychological
disorder” as a result of the alleged wrongful arrest
and physical violence against him, and if so, what the
effects were on his psychological, social, and occupational
functioning. ECF No. 39, Ex. A at 1. In order to complete
this evaluation, Dr. Rodd performed a clinical interview,
mental status examination, and various psychological tests on
Plaintiff (including the MMPI-2, Trauma Symptoms Inventory,
Personal Assessment Inventory, and Beck Depression
Inventory), all of which took 6.25 hours. Id. at 11.
Rule of Civil Procedure 35 governs mental examinations and
authorizes the court to “order a party whose mental or
physical condition . . . is in controversy to submit to a
physical or mental examination by a suitably licensed or
certified examiner.” Fed.R.Civ.P. 35(a)(1). The order
may be made “only on motion for good cause and on
notice to all parties and the person to be examined”
and “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).
35 examination requires a showing that the party's mental
or physical condition is “in controversy” and
that there is “good cause” supporting the order.
Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964).
More than a showing of “mere relevance” is
required to meet this standard. Id. at 118. A claim
of emotional distress can place a person's mental state
“in controversy” if accompanied with 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; or (5) plaintiff's
concession that his or her mental condition is ‘in
controversy.'” Turner v. Imperial Stores,
161 F.R.D. 89, 95 (S.D. Cal. 1995). The following factors are
considered in determining if there is “good
cause” to permit the examination: “(1) the
possibility of obtaining desired information by other means;
(2) whether plaintiff plans to prove her claim through
testimony of expert witnesses; (3) whether the desired
materials are relevant, and; (4) whether plaintiff claims
ongoing emotional distress.” Mailhoit v. Home Depot
U.S.A., Inc., No. CV1103892DOCSSX, 2013 WL 12122580, at
*4 (C.D. Cal. Jan. 24, 2013).
the Court finds that ordering Plaintiff to submit for a
mental examination is appropriate. Plaintiff has put his
mental state “in controversy” since he maintains
a cause of action for intentional infliction of emotional
distress (see ECF No. 19 at 40-41), and has
submitted supporting expert testimony. Factors that establish
“good cause” to order the examination include the
submission of the expert report as evidence of
Plaintiff's claim and because the expert report also
states that Plaintiff claims ongoing mental distress
symptoms. In addition, because the expert report was based on
a mental examination of Plaintiff, Defendants should have a
fair opportunity to have their expert perform a similar
examination in order to rebut the expert testimony.
argues that the examination should not be allowed because it
is degrading and invasive and Defendants' request is
untimely because Dr. Rodd's report was disclosed to
Defendants earlier on during discovery. ECF No. 39 at
4-5. As to the invasive nature of the exam, this is likely
true for any mental examination to some degree and Plaintiff
puts forth no reason why this is exacerbated in his case or
why it should prevent the examination when there is good
cause otherwise. As to timeliness, as Defendants point out,
Dr. Rodd was only formally designated as an expert on March
30. Moreover, in light of the posture of the claims at issue
and the Court's preference for deciding cases on the
merits, the Court finds it appropriate to permit the exam.
Scope of Examination
propose to have their rebuttal expert, Dr. Dominick Addario,
a board certified psychiatrist, evaluate Plaintiff
Luque-Villaneuva at Dr. Addario's office, located at 3010
First Avenue, San Diego, CA 92103. ECF No. 37 at 2-3. Dr.
Addario intends to conduct a face-to-face clinical interview
with Plaintiff, during which background information/history
will be collected and a mental status examination will be
conducted. Id. at 3. He also plans to conduct
psychological testing, which may include (1) the MMPI-2 and
the Millon Clinical Multiaxial Inventory-III, which assess
depression, personality features, symptoms and thought
processes, and (2) self-assessment tests depending on
symptomology, such as the Beck Depression Inventory Test and
the Beck Anxiety Inventory Test. Id. Dr.
Addario's expert report ...