Duncan v. Upjohn Co.

155 F.R.D. 23, 29 Fed. R. Serv. 3d 852, 1994 U.S. Dist. LEXIS 5294, 1994 WL 144833
CourtDistrict Court, D. Connecticut
DecidedMarch 9, 1994
DocketCiv. No. 2:91CV58(AHN)
StatusPublished
Cited by39 cases

This text of 155 F.R.D. 23 (Duncan v. Upjohn Co.) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duncan v. Upjohn Co., 155 F.R.D. 23, 29 Fed. R. Serv. 3d 852, 1994 U.S. Dist. LEXIS 5294, 1994 WL 144833 (D. Conn. 1994).

Opinion

RULING ON MOTION FOR PSYCHIATRIC EXAMINATION

SMITH, United States Magistrate Judge.

The plaintiffs, Harold W. Duncan and Joyce P. Duncan, brought this action against the Upjohn Company claiming, inter alia, that the defendant was negligent in the testing and marketing of Halcion, a tranquilizer. The plaintiffs claim that the drug caused Mr. Duncan to become psychologically unstable and caused him to undergo a drastic personality change. Further, the plaintiffs allege that the negligence of the defendant caused Mr. Duncan permanent medical, psychological, and psychiatric injury.

Pursuant to Fed.R.Civ.P. 35, the defendant Upjohn Company has moved for an order requiring Mr. Duncan to undergo a psychiatric examination. The plaintiffs oppose the motion, arguing that the information Upjohn seeks is available from medical records already produced by the plaintiff, thus negating the “good cause” requirement of Rule 35. Alternatively, if the motion is granted, the plaintiffs propose several modifications to the defendant’s request relating to the site of the examination, the presence of Mr. Duncan’s own psychiatrist, and the selection of the examining doctor.

I. Standard for Granting Psychiatric Examination

The Federal Rules provide:

[w]hen the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner____ The order may be made only on motion for good cause shown____

Fed.R.Civ.P. 35. Thus, there is a two-part test for determining whether the motion will be granted. First, the physical or mental state of the party must be in controversy. Second, the moving party must show good cause as to why the motion should be granted. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

In Schlagenhauf, the Court discussed the “in controversy” and “good cause” elements of Rule 35. Unlike the situation in most discovery disputes, because of these two requirements in Rule 35, mere relevance is insufficient to justify a psychiatric exam. Rather, the moving party must make an affirmative showing “that each condition as to which an exam is sought is really and genuinely in controversy.” Schlagenhauf, 379 U.S. at 118, 85 S.Ct. at 242-43.

A. The “In Controversy” Requirement

In this case, the plaintiffs’ suit is founded on a claim of psychiatric harm brought about by the use of Halcion, a drug manufactured by the defendant. In addition to claiming past mental harm, Mr. Duncan [25]*25also claims to suffer from ongoing psychiatric problems. Specifically, plaintiff claims:

As a direct and proximate result of the defendant’s unreasonably dangerous and defective product, the plaintiff became psychologically unstable and was forced to incur extensive medical, psychological and psychiatric treatment____ [His] entire personality changed____ [T]he plaintiff became totally disabled and institutional-ized____ [T]he plaintiff will experience permanent medical, psychological and/or psychiatric impairment.

Complaint, ¶¶ 15-21.

Similarly, Mr. Duncan’s responses to defendant’s discovery requests establish that plaintiffs’ claims are based on Mr. Duncan’s “suffering] and ... continuefd] ... suffering of] physical and psychological damage as a direct and proximate result of his use of the defendant’s unreasonably dangerous and defective product____” (Plaintiffs Supplemental Response to Defendant’s First Set of Interrogatories, dated January 17,1992, at 4, 6). Plaintiff used the same language in his supplemental response dated May 8, 1992.

Since plaintiff claims that he suffers ongoing psychiatric harm, the plaintiff has placed his psychiatric state in controversy. Bridges v. Eastman Kodak, 850 F.Supp. 216 (S.D.N.Y.1994); Hodges v. Keane, 145 F.R.D. 332 (S.D.N.Y.1993); Tomlin v. Holecek, 150 F.R.D. 628 (D.Minn.1993). This component of Rule 35, therefore, is satisfied.

B. The “Good Cause” Requirement

Not only must a party’s mental state be in controversy, there must also be good cause justifying a psychiatric examination. Here, plaintiff claims that Upjohn was negligent in its design and testing of Halcion, and, further, knew or should have known of its dangerous characteristics. (Complaint ¶ 13f-13h).

In Schlagenhauf, the Court stated:

379 U.S. at 119, 85 S.Ct. at 243. Courts have read Schlagenhauf as merging the “in controversy” and “good cause” requirements of Rule 35 when a plaintiff claims an ongoing mental injury in a negligence action. Peters v. Nelson, 153 F.R.D. 635 (N.D.Iowa 1994); Tomlin, 150 F.R.D. 628. By claiming ongoing psychiatric harm caused by the negligence of the defendant, therefore, the plaintiff has placed his mental state in controversy, which in turn constitutes good cause for ordering a psychiatric examination under Schlagenhauf

In addition to meeting the good cause requirement in Schlagenhauf, there are other indicia of good cause present in this case. The plaintiff intends to prove his claim at trial through the testimony of his own expert witnesses, which also constitutes good cause for permitting the defendant to conduct its own psychiatric examination of the plaintiff. Tomlin, 150 F.R.D. at 630; Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296 (E.D.Pa.1983).

Furthermore, one purpose in granting a request for a psychiatric examination pursuant to Rule 35 is to “preserven the equal footing of the parties to evaluate the plaintiffs mental state____” Tomlin, 150 F.R.D. at 633. Thus, while plaintiff has produced voluminous medical records and reports, which he claims are sufficient to evaluate his mental state at all relevant times, this production does not necessarily negate the defendant’s interest in an independent examination of the plaintiff. Only if no additional relevant information could be gained by an examination of Mr. Duncan should the motion for a psychiatric examination be denied. Schlagenhauf, 379 U.S. at 118, 85 S.Ct. at 242 (holding availability of information from another source is a relevant consideration).

The defendant has met the burden of showing that plaintiff has placed his mental state in controversy and, furthermore, that there is good cause for such an examination. The defendant’s motion therefore is granted, subject to the conditions set forth in the remainder of this Ruling.

[26]*26II. The Examining Doctor

The defendant has proposed that the psychiatric examination be performed by Dr. Douglas Jacobs, a psychiatrist with offices in Wellesley Hills, Massachusetts.1

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Bluebook (online)
155 F.R.D. 23, 29 Fed. R. Serv. 3d 852, 1994 U.S. Dist. LEXIS 5294, 1994 WL 144833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-upjohn-co-ctd-1994.