Mosley v. Del Toro

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN MOSLEY, Case No.: 21-cv-01129-TWR-JLB

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT CARLOS DEL TORO’S MOTION 14 CARLOS DEL TORO, Secretary of the FOR RULE 35 MENTAL AND Navy, Department of the Navy, 15 PHYSICAL HEALTH Defendant. EXAMINATIONS 16

17 [ECF No. 72] 18 19 For the reasons addressed below, 20 Plaintiff Ivan Mosley must attend and participate in a mental health 21 examination to be conducted by Dr. Dominick Addario, on Tuesday, 22 October 31, 2023, at 12:00 p.m. at 3010 First Avenue, San Diego, CA 23 92103. The mental health examination will be audio recorded by 24 Dr. Addario. 25 /// 26 /// 27 /// 28 /// 1 Before the Court is a Motion for Rule 35 Mental and Physical Health Examinations 2 filed by Defendant Carlos Del Toro, Secretary of the Navy (“Defendant” or “Navy”). (ECF 3 No. 72.) Defendant requests that the Court order a mental health examination and a 4 physical examination of Plaintiff Ivan Mosley (“Plaintiff”) to evaluate his claims of severe 5 emotional distress and physical symptoms allegedly caused by the Navy. (Id. at 2.) 6 Plaintiff did not file an opposition; however, he filed a printout of an article from the 7 internet entitled “Plaintiff’s Rights Regarding an Independent Medical Examination,” 8 some language of which Plaintiff highlighted. (ECF No. 73.) Based on certain highlighted 9 language (“Agreeing to the request,” “Agreeing as modified to the request,” language 10 related to who can be present for an examination, “Question of Plaintiff is Limited,” and 11 “Other Rights of the Plaintiff”), one could interpret the filing as an indication that Plaintiff 12 agrees to the requests so long as he is allowed to have someone present at the examination, 13 the questioning is limited, and a certain standard of care during the examination is required. 14 (Id.) For the reasons set forth below, the Court GRANTS IN PART and DENIES IN 15 PART Defendant’s Motion. 16 I. BACKGROUND 17 Plaintiff commenced this action on June 17, 2021. (ECF No. 1.) On 18 October 3, 2022, plaintiff filed a Second Amended Complaint (“SAC”),1 the operative 19 complaint, alleging harassment and retaliation in violation of Title VII of the Civil Rights 20 Act of 1964. (ECF No. 26.) Plaintiff, an African American man, alleges that Defendant 21 and his employees discriminated against him and harassed him because of his race while 22 he was employed as a civilian cook/chef at the Navy facility known as the Admiral Kidd 23 Club (“AKC”). (Id. ¶¶ 2, 15.) Defendant further alleges that Defendant’s management 24 retaliated against him for having complained about such discrimination. (Id. ¶ 2.) Plaintiff 25

26 27 1 Although captioned “First Amended Complaint,” the complaint filed on October 3, 2022, is Plaintiff’s Second Amended Complaint. He previously filed a First 28 1 was employed by the AKC from June 2, 2011, until he was terminated on August 20, 2017. 2 (Id. ¶¶ 16, 23–25.) Plaintiff seeks general damages, compensatory damages, and special 3 damages, “including but not limited to back pay, front pay, moving expenses, and other 4 related costs,” as well as attorney’s fees, costs, and interest. (Id. ¶¶ 40–44.) 5 II. LEGAL STANDARD 6 Federal Rule of Civil Procedure 35 authorizes a court to order “a party whose mental 7 or physical condition . . . is in controversy to submit to a physical or mental examination 8 by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). A party moving for 9 a physical or mental examination must meet two requirements: first, the physical or mental 10 condition of the party must be “in controversy;” and second, the moving party must 11 establish “good cause” for the examination. See Ragge v. MCA/Universal Studios, 165 12 F.R.D. 605, 608 (C.D. Cal. 1995) (citing Schlagenhauf v. Holder, 379 U.S. 104, 117–20, 13 (1964)); see also Nguyen v. Qualcomm Inc., No. 09-cv-1925-MMA (WVG), 2013 WL 14 3353840, at *2 (S.D. Cal. July 3, 2013) (the moving party has the burden of showing these 15 requirements are met). 16 A party’s mental or physical condition is in controversy when it is the subject of the 17 litigation. See Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013); 18 Ashby v. Mortimer, 329 F.R.D. 650, 653 (D. Idaho 2019). With respect to a mental 19 examination, “courts will order plaintiffs claiming emotional distress damages to undergo 20 an [examination] when one or more of the following factors is present: (1) the complaint 21 includes a claim for intentional or negligent infliction of emotional distress; (2) the plaintiff 22 alleges a specific mental or psychiatric injury or disorder; (3) the plaintiff claims unusually 23 severe emotional distress; (4) plaintiff offers expert testimony to support the claim of 24 emotional distress; or (5) the plaintiff concedes that her mental condition is ‘in controversy’ 25 for purposes of Rule 35.” Gavin, 291 F.R.D. at 164; see also Turner v. Imperial Stores, 26 161 F.R.D. 89, 95 (S.D. Cal. 1995). Although a parties’ mental condition may not be in 27 controversy where only “garden variety” emotional distress damages are claimed, the 28 presence of one of these factors is sufficient to place mental state in controversy. See 1 Hongwei Zhang v. United Techs. Corp., No. 10-cv-0660-DMS (MDD), 2011 WL 3890262, 2 at *1 (S.D. Cal. Sept. 2, 2011) (citing Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 3 668 (S.D. Cal. 2001)). 4 To assess whether “good cause” exists, courts consider: “(1) the possibility of 5 obtaining desired information by other means; (2) whether plaintiff plans to prove [his] 6 claim through testimony of expert witnesses; (3) whether the desired materials are relevant; 7 and (4) whether plaintiff claims ongoing emotional distress.” Ayat v. Societe Air France, 8 No. C 06-1574 JSW JL, 2007 WL 1120358, at *5 (N.D. Cal. Apr. 16, 2007) (citation 9 omitted). Even if the Court finds that “good cause” exists, it has discretion to determine 10 whether to order an examination. See Buffington v. Nestle Healthcare Nutrition Inc., No. 11 SACV 18-00106-JVS (JDEx), 2019 WL 3063516, at *1 (C.D. Cal. Apr. 18, 2019). Rule 35 12 is to be “construed liberally to allow the examination.” Hongwei Zhang., 2011 WL 13 3890262, at *1 (citation omitted). 14 III. DISCUSSION 15 In its motion, Defendant requests that the Court order an independent psychological 16 examination (“IPE”) to evaluate Plaintiff’s claim of “severe emotional distress” and an 17 independent medical examination (“IME”) to evaluate his hernia, hypertension, headaches, 18 and foot injury, all of which he attributes to the Navy’s conduct during the time at issue in 19 the SAC. Although Defendant was aware that Plaintiff claimed physical and emotional 20 injuries in January 2023 when Plaintiff provided interrogatory responses, Defendant asserts 21 that the need for these examinations did not become apparent until Plaintiff’s deposition 22 on August 11, 2023. (ECF No. 72-1, Declaration of Mary Cile Glover-Rogers (“Glover- 23 Rogers Decl.”) at ¶¶ 4–5, 16.) In subsequent meet and confer discussions, Plaintiff further 24 revealed that he is alleging “severe emotional distress” and not “garden variety emotional 25 distress.” (Id. ¶¶ 16, 21.) Defendant requests that the Court order an IPE and IME in 26 accordance with terms outlined in Attachments 1 and 2 to the Motion. 27 /// 28 /// 1 A. IPE 2 Defendant argues that Plaintiff has placed his mental health in controversy by 3 seeking damages for severe emotional distress. (ECF No. 72 at 6.) Plaintiff has attributed 4 headaches, stress, and anxiety to Defendant’s actions and sought mental health treatment 5 to manage his alleged stress and anxiety. (Id. at 6–7; see also Pl. Dep. at 289:21–297:23.) 6 Plaintiff also claims that he lost sleep and his ability to eat due to Defendant’s actions, 7 notably from “[b]eing bullied” and the constant fear of being fired. (Id. at 7; see also Pl. 8 Dep. at 289:21–292:23.) Plaintiff further claims physical manifestations of his alleged 9 stress and anxiety brought on by Defendant’s actions. Plaintiff claims he experienced high 10 blood pressure, hypertension, and headaches as a result of the stress because “anytime 11 someone’s telling you that they’re going to fire you, you don’t belong here and all that 12 stuff, that’s stressful.” (Pl. Dep. at 281:16–286:16.) He further claims he fainted at work 13 which allegedly happened after a conversation with his supervisor, Victor Farfan, which 14 resulted in him being in the hospital for five days. (Pl. Dep. at 283:10–24; see also ECF 15 No. 14 at ¶ 20 (alleging in February 2017 Plaintiff “was so afraid and overwhelmed that he 16 passed out at work, resulting in a week-long hospital stay.”).) 17 The Court finds that Plaintiff has placed his mental health in controversy by claiming 18 severe emotional distress. Although the SAC does not elaborate on the extent of his 19 emotional distress, emotional distress was alleged and Plaintiff has claimed in subsequent 20 proceedings that he experienced severe emotional distress because of Defendant’s actions, 21 as opposed to garden-variety emotional distress, and has sought professional treatment as 22 a result. See Turner, 161 F.R.D. at 95; see also Conforto v. Mabus, No. 12-cv-01316-W 23 BLM, 2014 WL 3407053, at *3 (S.D. Cal. July 10, 2014) (finding the plaintiff’s mental 24 condition in controversy based on allegations the defendants’ activity caused her to suffer 25 anxiety, panic attacks, depression, stress, daily crying spells, sleeplessness, increased or 26 decreased appetite causing fluctuations in her weight, elevated blood pressure that included 27 an increase in her blood pressure medication, and general overall deterioration of her 28 health); Dornell v. City of San Mateo, No. CV 12–06065–CRB (KAW), 2013 WL 1 5443036, at *4 (N.D. Cal. Sept. 30, 2013) (finding a claim for continuing emotional distress 2 resulting in anxiety, high blood pressure, chest pain, sleeplessness, weight gain, inability 3 to focus and loss of interest in daily life activities and hobbies was not “garden-variety” 4 emotional distress). Moreover, in Plaintiff’s response to the present motion and during 5 status conferences before the Court, Plaintiff has not objected to Defendant’s contention 6 that he has placed his mental condition in controversy for purposes of Rule 35. See Turner, 7 161 F.R.D. at 95; see also Ayat, 2007 WL 1120358, at *4 (relying on the fact the plaintiff 8 does not argue that his mental condition is not in controversy in finding that he has put his 9 mental condition in controversy). 10 The Court further finds good cause exists for the IPE. As Plaintiff is proceeding pro 11 se and has not designated any experts, it appears that Plaintiff will rely on his own 12 testimony and mental health records to support his allegations. This would tend to weigh 13 against an IPE. Cf. Ayat, 2007 WL 1120358, at *6 (finding that the plaintiff’s plan to rely 14 on the testimony of expert witnesses militates in favor of finding good cause for an 15 independent examination by the defendant’s experts so that they can adequately scrutinize 16 and rebut the conclusions of the plaintiff’s experts). Plaintiff also testified that he does not 17 really have any current stress and anxiety, except for the stress caused by litigating this 18 lawsuit pro se and paying his bills. (Pl. Dep. at 294:2–21.) This would also tend to weigh 19 against an IPE. Cf. Hongwei, 2011 WL 3890262, at *2 (noting that where a plaintiff alleges 20 ongoing mental injury or the likelihood of future mental distress, there is typically good 21 cause for a mental examination). 22 However, Defendant did not have access to Plaintiff’s mental health records before 23 deposing Plaintiff; indeed, Defendant only learned the records existed at the deposition. 24 Therefore, Defendant has not had an opportunity to review or cross-examine Plaintiff on 25 these records. Moreover, as Defendant argues, an IPE will allow Defendant to understand 26 “to what extent Plaintiff’s medical conditions/severe emotional distress were pre-existing” 27 or were “caused by the Navy’s alleged wrongful conduct.” (ECF No. 72 at 9.) Although 28 Plaintiff’s mental health records may illuminate such a distinction, such records are not a 1 substitute for an examination because, as Defendant argues, they often contain brief 2 notations, while “a professional examination of Plaintiff allows for a taking of a careful 3 and detailed history of his symptoms, past stressors and treatment, to determine the extent 4 of the alleged injuries, and whether other factors may have contributed to or exacerbated 5 them.” (See id.) In these circumstances, the Court finds there is good cause for an IPE. 6 See Nguyen, 2013 WL 3353840, at *7 (a defendant should have a “balanced opportunity 7 to assess the plaintiff's allegations and proof concerning emotional distress damages” and 8 an IME may be necessary to afford the defendant “an opportunity to ascertain the exact 9 duration” of the plaintiff’s alleged emotional injuries and the extent to which the 10 defendant’s actions may have caused them) (citations omitted)). 11 Defendant further requests that a third-party be excluded from the IPE and for an 12 audio recording of the IPE. (Id. at 10–11.) A third party—whether human or electronic— 13 cannot sit in on a mental examination under Rule 35 “unless special circumstances require 14 it.” Conforto, 2014 WL 3407053, at *5 (quoting Nguyen, 2013 WL 3353840, at *9); see 15 also Soto v. United States, No. 13-CV-2359-BAS (DHB), 2014 WL 12577594, at *2 (S.D. 16 Cal. July 29, 2014) (while courts have discretionary authority under Rule 35 to permit the 17 presence of a recording device at a Rule 35 examination, there is no absolute right to the 18 use of such a device and it is not considered normal procedure). Defendant argues good 19 cause exists to record the IPE because it “will enhance the examination’s reliability and 20 provide a source of information for consideration by the trier of fact.” (ECF No. 72 at 11.) 21 Plaintiff indicated during meet and confer efforts with Defendant that he wanted a 22 third party to attend his IPE. (Glover-Rogers Decl. ¶ 24.) Plaintiff’s highlighting of the 23 article he filed as his response to the present motion could also be interpreted to mean he 24 wants someone to accompany him. (See ECF No. 73 at 2–3.) However, the Court does 25 not know the desired purpose of such attendance, nor the identity of the person Plaintiff 26 may be seeking to have in attendance. As such, the Court finds that Plaintiff has not made 27 any showing that special circumstances exist to overcome the general rule that third parties 28 are not permitted to attend an IPE. See Nguyen, 2013 WL 3353840, at *9; see also 1 Conforto, 2014 WL 3407053, at *5 (finding the plaintiff’s desire to have counsel present 2 to prevent questions that he feels are unduly burdensome or probative does not constitute 3 a “special circumstance”); Ragge, 165 F.R.D. at 609–10 (“Third party observers may, 4 regardless of their good intentions, contaminate a mental examination.”). However, the 5 Court finds circumstances warrant granting Defendant’s unopposed request for an audio 6 recording, with a copy to be given to Plaintiff. Therefore, both parties will be ensured of 7 the reliability of the examination. 8 B. IME 9 Defendant also argues that Plaintiff has put his physical health in controversy and 10 good cause exists for a separate medical examination. In written discovery and during 11 Plaintiff’s deposition, he attributes the following physical symptoms and/or injuries to the 12 conduct of the Navy: hernia, high blood pressure, hypertension, headaches, and foot injury. 13 (Glover-Rogers Decl., Ex. 1 (Interrog. 10); Pl. Dep. at 278:13–288:7.) Defendant argues 14 that the fact Plaintiff attributes these physical conditions to the conduct of the Navy puts 15 the conditions “genuinely in controversy.” (ECF No. 72 at 8.) Defendant further argues 16 that good cause exists because an IME is essential to understanding to what extent 17 Plaintiff’s medical conditions were pre-existing. (Id. at 9.) 18 The Court finds that Defendant has not sufficiently established that Plaintiff has put 19 his physical health in controversy in this case. See Ayat, 2007 WL 1120358, at *5 20 (considering the Turner factors in determining whether a plaintiff has put his physical 21 condition in controversy). This “in controversy” requirement is not met “by mere 22 conclusory allegations of the pleadings—nor by mere relevance to the case—but require[s] 23 an affirmative showing by the movant that each condition as to which the examination is 24 sought is really and genuinely in controversy[.]” Schlagenhauf, 379 U.S. 104. Here, 25 Plaintiff’s Title VII discrimination and retaliation claims are not premised on any physical 26 injury and Plaintiff does not allege any physical injury caused by Defendant’s actions in 27 the SAC. Cf. Ayat, 2007 WL 1120358, at *5 (finding the plaintiff’s physical health in 28 1 controversy in part because the plaintiff sought compensatory damages arising from bodily 2 injury). 3 Moreover, in his deposition, Plaintiff claimed his high blood pressure, hypertension, 4 headaches, and a fainting spell were physical manifestations of the stress and anxiety 5 caused by the Navy’s actions, but he also testified he no longer really has stress and anxiety 6 other than the stress caused by litigating this lawsuit pro se and paying his bills. (Pl. Dep. 7 at 281:16–286:16, 294:2-21; see also ECF No. 14 at ¶ 20.) Plaintiff further claimed that 8 his job put stress on his hernias because he was working hard, i.e., “cleaning tables, 9 mopping, cooking” and “lifting 80- or 100- pound, 150-pound boxes.” (Pl. Dep. 278:13– 10 281:15.) However, Plaintiff does not claim that Defendant’s alleged harassment and 11 retaliation caused or exacerbated his hernia pain. (See id.) Plaintiff was “just dedicated to 12 [his] job” and “did [his] job very, very well.” (Pl. Dep. 278:13–22.) 13 Plaintiff does contend that his off-duty foot injury, for which he filed a separate 14 worker’s compensation claim, was exacerbated by the conduct of the Defendant’s that is 15 the subject of this lawsuit. (Pl. Dep. at 286:18–289:20.) He contends that his supervisor 16 required him to return to “full duty” at work even though his foot was not fully healed as a 17 “a ploy” to get him back in the kitchen to create a pretext for firing him. (Pl. Dep. at 18 287:17–289:20.) However, Plaintiff does not allege that Defendant caused his foot injury, 19 and it is not sufficiently relevant to the claims in this lawsuit for the Court to find that 20 Plaintiff’s physical condition is in controversy and warrants an independent medical 21 examination. Lastly, the Court notes that Plaintiff has not designated any experts to discuss 22 his physical condition. 23 Even if the Court were to conclude that Plaintiff has placed his physical condition in 24 controversy for purposes of this lawsuit, the Court finds that Defendant has not 25 demonstrated good cause for a physical examination. Plaintiff’s medical records will be 26 the most reliable source of information to determine whether Defendant’s actions between 27 2011 and 2017 could have and did cause Plaintiff’s blood pressure, hypertension, hernia 28 pain, and headaches to spike and whether his foot injury got worse after Defendant ended 1 his light duty and sent him back to the kitchen. Unlike Plaintiff’s mental health records, 2 the objective findings (e.g., blood pressure measurements) of a physical examination 3 should be adequately reflected in Plaintiff’s medical records and Defendant has not 4 demonstrated that the records are insufficient. Moreover, other than Plaintiff’s hernia2 and 5 foot injury,3 which are not alleged to have been caused by Defendant, it is not clear that 6 Plaintiff is claiming any ongoing physical conditions that an independent examiner could 7 examine. 8 Accordingly, the Court denies Defendant’s motion for an IME. 9 IV. CONCLUSION 10 For the reasons stated above, the Court GRANTS IN PART and DENIES IN 11 PART Defendants’ Motion for Rule 35 Mental and Physical Health Examinations. The 12 Court denies Defendant’s request for an IME. However, the Court grants Defendant’s 13 request for an IPE, to be conducted as follows: 14 Plaintiff shall attend and participate in a mental health examination to be conducted 15 by Dr. Dominick Addario, on Tuesday, October 31, 2023, at 12:00 p.m. at 3010 First 16 Avenue, San Diego, CA 92103. The mental health examination will be audio recorded by 17 Dr. Addario. 18 Psychological testing begins at 12:00 p.m., followed by a face-to-face exam. The 19 usual exam takes 4-6 hours depending on the time needed for Plaintiff to complete testing. 20 Plaintiff shall bring a list of current medications/dosages and eyeglasses, if needed, 21 to the examination. 22 /// 23 /// 24 25 2 Plaintiff has represented numerous times to the Court that he is in the process of 26 trying to schedule a surgery to address his hernias. 27 3 In his deposition, Plaintiff stated that he has ongoing “sharp pains” in his foot that hit him “every so often,” but he has never received any treatment for his foot and does not 28 1 Defendant shall pay the fee for Dr. Addario’s examination of Plaintiff. However, if 2 Plaintiff fails to appear at the scheduled examination, Plaintiff will be responsible for a 3 reasonable non-appearance fee, which could be substantial. 4 Only Plaintiff and Dr. Addario (including his staff) shall be present in the 5 examination room during the examination. Plaintiff’s legal representatives, if any, 6 Defendant’s attorneys and legal representatives, and all other third parties shall not attend, 7 participate, or otherwise be present at the examination once the examination begins or 8 while it is underway. 9 Due to COVID-19 safety protocols, Plaintiff is encouraged to wear a mask while in 10 Dr. Addario’s office, however, all face-to-face evaluations will occur via Zoom without 11 the mask. Plaintiff is in a private room for this Zoom-based part of the examination and 12 Dr. Addario’s office provides the equipment necessary. Plaintiff will have minimal 13 personal interaction. Further, Dr. Addario’s office will ensure that items in the office are 14 properly sanitized and applicable COVID-19 guidelines are in place. 15 Once Plaintiff completes psychological testing in the private room, Dr. Addario and 16 Plaintiff will connect via Zoom for the face-to-face evaluation without a mask. The 17 examination will proceed as follows: 18 A. A face-to-face interview with patient of 2 to 3 hours. In the standard 19 comprehensive psychiatric evaluation, the following is evaluated: 20 1. History of condition 21 2. Background Information 22 3. Education 23 4. Occupational History 24 5. Family History 25 6. Past Medical History 26 7. Psychiatric History 27 8. Review and Summary of Medical Records 28 l 9. Review of Psychiatric Systems — Including Appetite, Habits, Activities, 2 Mood, Phobias, Energy Level, and Relationships 3 10. Mental Status Examination Including: Appearance, Speech, Behavior, 4 Memory and Affect, Sensorium and Cognition, Insight and Judgment, 5 Memory and Calculations and Proverbs, and Thought Processes 6 B. Psychological Testing requiring 2 to 3 hours depending on the patient’s ability 7 complete in that time period. Tests include MMPI-2, Millon Clinical Multiaxial 8 ||Inventory — IV and Self-Assessment Tests, including Wahler Physical Symptoms 9 Inventory Test, Shipley Intellectual Assessment Test, The Measurement of Depression 10 || Test of Zung’s, Beck Depression Inventory Test, Beck Anxiety Inventory Test. 11 IT IS SO ORDERED. 12 Dated: October 13, 2023

14 n. Jill L. Burkhardt 15 ited States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28