Flanagan v. Keller

2001 DNH 223

• Court: District Court, D. New Hampshire
• Decided: December 18, 2001
• Docket: CV-00-542-M
• Status: Published

Opinion

Flanagan v . Keller CV-00-542-M 12/18/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Yvette Flanagan, Plaintiff

v. Civil N o . 00-542-M Opinion N o . 2001 DNH 223 Keller Products, Inc., Defendant

O R D E R

Plaintiff has sued her former employer under Title V I I and

the F M L A . Before the court is defendant’s Motion Requesting an

Independent Medical Examination Pursuant to F E D . R . C I V . P . 3 5 .

Plaintiff objects.

The Federal Rules of Civil Procedure provide, in pertinent

part:

When 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 . . . .

F E D . R . C I V . P . 35(a); see also Schlagenhauf v . Holder, 379 U . S .

104, 118 (1964). “The party seeking to compel the evaluation bears the burden of affirmatively establishing the ‘in

controversy’ and ‘good cause’ requirements.” Ford v . Contra

Costa County, 179 F.R.D. 579, 579 (N.D. Cal. 1998) (citing

Schlagenhauf, 379 U.S. at 1 1 8 ) . As to how the moving party must

establish the “in controversy” element, when

[a]pplying the Schlagenhauf standard, to the “in controversy” requirement, Rule 35 motions

are typically granted when one or more of the following factors are present: 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 . the plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5 . the plaintiff’s concession that her mental condition is ‘in controversy’ within the meaning of Rule 3 5 .

O’Sullivan v . State of Minnesota, 176 F.R.D. 325, 328 (D. Minn. 1997); see also Fox v . The Gates Corporation, 179 F.R.D. 303, 307 (D. Col. 1998); Sarko v . Penn-Del Directory Company, 170 F.R.D. 1 2 7 , 131 (E.D. Pa. 1997).

Bethel v . Dixie Homecrafters, Inc., 192 F.R.D. 3 2 0 , 322 (N.D. Ga.

2000).

While defendant argues that plaintiff’s mental condition is

in controversy because she has claimed “mental anguish,” and

2 because she referred to her mental health history in response to

some of defendant’s deposition questions, none of the five

factors listed in Bethel is met by defendant’s proffer in this

case. Plaintiff’s cause of action for negligent infliction of

emotional distress has been dismissed. Plaintiff claims no

specific mental or psychiatric injury or disorder. Plaintiff has

specifically renounced any claim to damages for unusually severe

emotional distress, and claims only the “garden variety” mental

anguish normally and reasonably resultant from the acts of

harassment she alleges. Plaintiff does not propose to offer

expert testimony to support her claim of emotional distress. And

plaintiff does not concede that her mental condition is in

controversy.

Because plaintiff’s case involves a standard claim for

mental anguish, see Ford, 179 F.R.D. at 579-80 (“the bulk of the

reported case law demonstrates that a claim for emotional

distress damages, by itself, is not sufficient to place the

plaintiff’s mental condition in controversy for purposes of FRCP

35(a)”) (citing Turner v . Imperial Stores, 161 F.R.D. 8 9 , 92-97

(S.D. Cal. 1995)), and because defendant has justified its Rule

3 35 request with nothing more than “mere conclusory allegations

[in its] pleadings,” Peters v . Nelson, 153 F.R.D. 635, 637 (N.D.

Iowa 1994) (quoting Schlagenhauf, 379 U.S. at 118-19), defendant

has not met its burden of affirmatively establishing that

plaintiff’s mental condition is in controversy. Accordingly,

defendant’s Rule 35 motion (document n o . 14) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 1 8 , 2001

cc: Linda S . Johnson, Esq. Mark T . Broth, Esq.