Greenhorn v. Marriott Intern., Inc.

216 F.R.D. 649, 2003 U.S. Dist. LEXIS 5067, 2003 WL 1697765
CourtDistrict Court, D. Kansas
DecidedMarch 27, 2003
DocketNo. 02-2081-JWL
StatusPublished
Cited by22 cases

This text of 216 F.R.D. 649 (Greenhorn v. Marriott Intern., Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649, 2003 U.S. Dist. LEXIS 5067, 2003 WL 1697765 (D. Kan. 2003).

Opinion

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

Plaintiff Deborah Greenhorn filed suit against defendant alleging, among other things, sexual harassment, assault and battery, invasion of privacy, criminal sexual battery and intentional infliction of emotional distress. This matter is presently before the court on defendants’ motion for an order directing plaintiff to submit to a mental examination pursuant to Federal Rule of Civil Procedure 35 (Doe. # 57). For the reasons set forth below, defendants’ motion is granted with certain restrictions.1

In order to obtain the court’s permission to conduct a mental examination of plaintiff, defendants must demonstrate that plaintiffs mental condition is “in controversy” and that “good cause” exists to conduct the requested examination. Fed.R.Civ.P. 35(a); Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (“Rule 35 ... requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination ... has adequately demonstrated the [651]*651existence of the Rule’s requirements of ‘in controversy’ and ‘good cause’----”).2 Significantly, the “in controversy” and “good cause” requirements of Rule 35

are not met by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.

Schlagenhauf, 379 U.S. at 118, 85 S.Ct. 234. As this court has previously stated, it “believes that the rule is consciously designed to be somewhat restrictive to guard against the use of requests for mental examinations as a tool for harassment, intimidation or delay in what courts have described as the ‘garden variety1 cases.” Thiessen v. General Elec. Capital Corp., 178 F.R.D. 568, 570 (D.Kan. 1998). As set forth below, the court finds that the allegations in plaintiffs amended complaint extend far beyond a mere “garden variety” claim for emotional distress. Indeed, plaintiff identifies several specific injuries that she claims to have suffered as a result of defendants’ conduct. The court also finds that defendants have adequately demonstrated the “in controversy” and “good cause” requirements of Rule 35.

Defendants’ motion is based on a variety of allegations made by plaintiff in her amended complaint. Defendants highlight, for example, plaintiffs allegation that defendants’ conduct has caused her to sustain “lasting and permanent emotional ... injury in the form of ... emotional trauma causing insomnia, severe depression, avoidance, withdrawal, suicidal ideation, suspiciousness, so-eial discomfort, low self-esteem, [and] resentfulness.” Plaintiff also alleges that, because of defendants’ conduct, she suffers from “persistent insomnia which has continued unabated to the present day, as well as serious and lasting emotional trauma.” She claims that she has suffered and will continue to suffer in the future from “fear and apprehension of offensive physical touching,” that her insomnia is so severe that she sleeps only 2-3 hours per night, and that she is “plagued by constant fatigue, has low motivation, has greatly diminished organizational skills, and has hallucinations causing her to see the face of Larry Cox on a relatively frequent basis.” Significantly, plaintiff also seeks damages for “future medical expense” as a result of her alleged emotional trauma.

These allegations reflect plaintiffs contention that she has suffered specific injuries caused by defendants’ conduct and reveal that plaintiffs claim for emotional distress is not simply a “garden variety” claim for emotional distress. In light of plaintiffs allegations,3 the court finds that her mental condition is “in controversy” for purposes of Rule 35. Gattegno v. Pricewaterhousecoopers, LLP, 204 F.R.D. 228, 231-32 (D.Conn.2001) (granting motion to compel Rule 35 mental examination where plaintiffs complaint and discovery responses revealed a separate and independent claim for infliction of emotional distress and plaintiff sought damages for continuing mental anguish); Turner v. Imperial Stores, 161 F.R.D. 89, 93 (S.D.Cal.1995) (Rule 35 motions are typically granted when plaintiff alleges a specific mental or psychiatric injury or disorder or claims unusually severe emotional distress) (collecting cases and reviewing pertinent authorities).

[652]*652The court also finds that good cause exists for a mental examination of plaintiff-a conclusion that is “necessarily related” to the court’s conclusion that plaintiff has placed her mental condition “in controversy.” Schlagenhauf, 379 U.S. at 118-19, 85 S.Ct. 234. In that regard, the court notes that the allegations made by plaintiff in her amended complaint are sufficiently serious and sweeping such that the average lay person might not be able to evaluate properly the nature, extent and cause of the injuries plaintiff claims to have sustained. In such circumstances, an independent examination is appropriate. See, e.g., Pearson v. City of Austin, 2001 WL 681663, at *2 (W.D.Tex. Apr.4, 2001) (finding good cause to order mental examination where plaintiffs allegations of injury were sufficiently complex and serious such that the claim was “not one that an objective fact-finder could evaluate and apportion”). Moreover, plaintiff has identified her own expert witness, presumably one whom she intends to call to testify at trial, who has diagnosed plaintiff with major depression and has indicated that plaintiff has symptoms of post-traumatic stress syndrome, presumably as a result of defendants’ conduct. Thus, good cause exists for permitting the mental examination of plaintiff because, without the examination, defendants would be limited to cross-examining the evaluation of plaintiffs expert. See Womack v. Stevens Transport, Inc., 205 F.R.D. 445, 447 (E.D.Pa. 2001) (good cause existed for requested Rule 35 examination because mere cross-examination of plaintiffs expert would be an “insufficient test of truth”).

Accordingly, defendants’ motion to compel a mental examination of plaintiff is granted. Rule 35, however, further requires that an order “shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” Fed.R.Civ.P. 35(a). In their initial notice of the Rule 35 mental examination, defendants stated their intent to have plaintiff examined by Dr. Wayne A. Stillings, a licensed psychiatrist. According to an affidavit provided by Dr. Stillings, the necessary battery of tests to be performed on plaintiff would include the MMPI-2, the MCMI-III and the YIP tests. Dr. Stillings avers that it could take plaintiff anywhere from a total of four (4) hours to a total of eight (8) hours to complete these three tests. He further avers that his psychiatric examination of plaintiff could last “anywhere between three (3) and five (5) hours.” Finally, Dr.

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216 F.R.D. 649, 2003 U.S. Dist. LEXIS 5067, 2003 WL 1697765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenhorn-v-marriott-intern-inc-ksd-2003.