1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN NGUYEN, Case No. 23-cv-03204-JSW
8 Plaintiff, ORDER RESOLVING JOINT LETTER 9 v. BRIEF RE PLAINTIFF BRIAN NGUYEN’S MENTAL EXAMINATION 10 WAL-MART ASSOCIATES, INC., Re: Dkt. No. 40 Defendant. 11
12 13 Now before the Court is the parties’ Joint Letter Brief to Compel Plaintiff Brian Nguyen’s 14 Mental Examination (“Letter”). Defendant Wal-Mart Associates, Inc. (“Walmart”) seeks an Order 15 requiring Plaintiff Brian Nguyen (“Nguyen”) to undergo a mental examination pursuant to Federal 16 Rule of Civil Procedure 35. The Court has considered the parties’ papers, relevant legal authority, 17 and the record in this case, and it finds the Letter appropriate for resolution without further 18 briefing or telephone conference. See Civ. L.R. 7-1(b); Civil Standing Order No. 7. 19 For the following reasons, the Court grants Walmart’s request to compel Nguyen to 20 undergo a mental examination. 21 BACKGROUND 22 Nguyen worked for Walmart from approximately 1994 through February 14, 2022. (Dkt. 23 No. 1-1, Compl., ¶¶ 9, 17.) Nguyen went on medical leave in October 2021. (Id. ¶ 13.) Before 24 Nguyen could return from leave, Walmart terminated his employment. (Id. ¶ 17.) Based on these 25 allegations, Nguyen brings eight causes of action against Walmart: (1) disability discrimination in 26 violation of California Government Code section 12940 et seq. (“FEHA”); (2) failure to 27 accommodate in violation of FEHA; (3) failure to engage in the interactive process in violation of 1 Rights Act; (6) interference in violation of the Family and Medical Leave Act, 29 U.S.C. section 2 2601 et seq.; (7) wrongful termination in violation of public policy; and (8) waiting time penalties. 3 For seven of Nguyen’s causes of action, he alleges Walmart proximately caused him to 4 suffer “and continue[] to suffer emotional distress, humiliation, mental anguish and 5 embarrassment, as well as the manifestation of physical symptoms.” (Compl., ¶¶ 34, 46, 61, 78, 6 88, 97, 105.) Nguyen further alleges that “he will continue to experience said physical and 7 emotional suffering for a period in the future not presently ascertainable.” (Id.) In Nguyen’s 8 deposition, he testified that those symptoms include “[s]adness, anxiety, loss of sleep, headache, 9 weight loss and gain normally,” tension, loss of self-confidence and self-esteem, depression, and 10 feeling “withdrawn.” (Letter, at 2:1-9.) Nguyen’s sister testified in her deposition that Nguyen 11 suffered a “nervous breakdown” after leaving Walmart and that, in her view, Nguyen suffers from 12 “serious” depression and sadness. (Id. at 4:8-14.) 13 Nguyen seeks to recover general emotional distress damages and future loss of earnings. 14 (Id., Prayer for Relief, ¶¶ 1, 3.) 15 Walmart seeks to compel Nguyen to undergo an independent medical examination 16 (“IME”) to explore his alleged emotional distress. Nguyen offers instead to stipulate that he does 17 not seek damages “for physical, mental or emotional distress over and above what is usually 18 associated with the injuries claimed.” Walmart contends that the stipulation is insufficient, and it 19 seeks an IME unless Nguyen will stipulate to not introduce evidence of ongoing emotional 20 distress. 21 ANALYSIS 22 The Court has discretion to order a party to submit to a physical or mental examination by 23 a “suitably licensed or certified examiner” if the party’s physical or mental condition is “in 24 controversy.” Fed. R. Civ. P. 35(a)(1). To obtain an order for a mental evaluation over Nguyen’s 25 objection, Walmart must show that (1) Nguyen has placed his mental condition in controversy, 26 and (2) good cause exists for the examination. See Ford v. Contra Costa Cnty., 179 F.R.D. 579, 27 579 (N.D. Cal. 1998) (setting forth factors). 1 A. Nguyen Placed His Mental Condition in Controversy. 2 A mental condition is “in controversy” when it is the subject of litigation. Gavin v. Hilton 3 Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013). Although courts typically do not consider 4 “garden-variety” emotional distress damages to place one’s mental condition “in controversy,” 5 courts will order an IME if “one or more of the following factors is present: (1) the complaint 6 includes a claim for intentional or negligent infliction of emotional distress; (2) the plaintiff 7 alleges a specific mental or psychiatric injury or disorder; (3) the plaintiff claims unusually severe 8 emotional distress; (4) plaintiff offers expert testimony to support the claim of emotional distress; 9 or (5) the plaintiff concedes that her mental condition is ‘in controversy’ for purposes of Rule 35.” 10 Id. The presence or absence of any one of these factors is not dispositive. See Winstead v. 11 Lafayette Cnty. Bd. of Cnty. Comm’rs., 315 F.R.D. 612, 614-15 (N.D. Fla. 2016) (noting that the 12 list of “elements should not be seen as exhaustive, nor should the presence of any one (or more) of 13 them automatically lead to a finding that a plaintiff has put her mental state into controversy”) 14 (emphasis removed). 15 Here, Nguyen does not bring claims for intentional or negligent infliction of emotional 16 distress, does not intend to introduce expert testimony regarding his mental condition, and does 17 not stipulate that he has placed his mental condition in controversy. Further, although “anxiety” is 18 a medical condition, Nguyen does not seek to prove that his alleged anxiety rises to the level of a 19 diagnosis. See, e.g., Perez v. Health, No. 15-cv-01792-HSG-MEJ, 2016 WL 1156497, at **2-3 20 (N.D. Cal. Mar. 24, 2016) (finding IME inappropriate where plaintiffs alleged “anxiety. . . 21 depression[,] and post-traumatic stress” resulting from employment discrimination but where 22 plaintiffs did not seek psychiatric treatment or have medical diagnoses of those conditions). 23 However, Nguyen appears to have “unusually severe emotional distress,” over and above 24 “garden-variety emotional distress.” Gavin, 291 F.R.D. at 164. “Garden-variety emotional 25 distress” is “ordinary or commonplace emotional distress, that which is simple or usual.” Pringle 26 v. Wheeler, No. 19-cv-07432-WHO, 2021 WL 1907824, at *3 (N.D. Cal. Apr. 16, 2021) (quoting 27 Fitzgerald v. Cassil, 216 F.R.D. 632, 637 (N.D. Cal. 2003)). “In contrast, emotional distress that 1 (internal marks omitted). General phrases like “mental and emotional distress,” “pain and 2 suffering,” and “stress, internal turmoil, trauma, and anxiety” reflect “garden variety” emotional 3 distresses. Id. at *4. “[M]ore specific mental injuries such as post-traumatic stress disorder, 4 depression, insomnia, and suicidal ideation” are not garden variety. Id. Physical manifestation of 5 emotional distress may also indicate that the distress is more than garden variety. See, e.g., 6 Mandujano v. Geithner, No. 10-cv-01226-LB, 2011 WL 825728, at *2 (N.D. Cal. Mar. 7, 2011) 7 (loss of sleep, migraines, weight loss, and growing a beard to hide were signs of distress beyond 8 garden-variety); Tamburri v. Suntrust Mortg. Inc., No. 11-cv-02899-JST(DMR), 2013 WL 9 942499, at **2, 4 (N.D. Cal. Mar. 11, 2013) (cracked teeth from stress, severe headaches, lost 10 mental clarity, and suicidal thoughts signs of more than garden-variety distress); Sherman v. 11 Regents of Univ. of California, No. 20-cv-06441-VKD, 2022 WL 19756, at *3 (N.D. Cal. Jan. 3, 12 2022) (permitting IME to explore physical symptoms alleged to follow from emotional harms). 13 Nguyen alleges that he suffered and continues to suffer from “physical and emotional 14 suffering.” Discovery indicates that Nguyen’s physical manifestation of emotional harm includes 15 loss of sleep, headache, and weight loss and gain.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN NGUYEN, Case No. 23-cv-03204-JSW
8 Plaintiff, ORDER RESOLVING JOINT LETTER 9 v. BRIEF RE PLAINTIFF BRIAN NGUYEN’S MENTAL EXAMINATION 10 WAL-MART ASSOCIATES, INC., Re: Dkt. No. 40 Defendant. 11
12 13 Now before the Court is the parties’ Joint Letter Brief to Compel Plaintiff Brian Nguyen’s 14 Mental Examination (“Letter”). Defendant Wal-Mart Associates, Inc. (“Walmart”) seeks an Order 15 requiring Plaintiff Brian Nguyen (“Nguyen”) to undergo a mental examination pursuant to Federal 16 Rule of Civil Procedure 35. The Court has considered the parties’ papers, relevant legal authority, 17 and the record in this case, and it finds the Letter appropriate for resolution without further 18 briefing or telephone conference. See Civ. L.R. 7-1(b); Civil Standing Order No. 7. 19 For the following reasons, the Court grants Walmart’s request to compel Nguyen to 20 undergo a mental examination. 21 BACKGROUND 22 Nguyen worked for Walmart from approximately 1994 through February 14, 2022. (Dkt. 23 No. 1-1, Compl., ¶¶ 9, 17.) Nguyen went on medical leave in October 2021. (Id. ¶ 13.) Before 24 Nguyen could return from leave, Walmart terminated his employment. (Id. ¶ 17.) Based on these 25 allegations, Nguyen brings eight causes of action against Walmart: (1) disability discrimination in 26 violation of California Government Code section 12940 et seq. (“FEHA”); (2) failure to 27 accommodate in violation of FEHA; (3) failure to engage in the interactive process in violation of 1 Rights Act; (6) interference in violation of the Family and Medical Leave Act, 29 U.S.C. section 2 2601 et seq.; (7) wrongful termination in violation of public policy; and (8) waiting time penalties. 3 For seven of Nguyen’s causes of action, he alleges Walmart proximately caused him to 4 suffer “and continue[] to suffer emotional distress, humiliation, mental anguish and 5 embarrassment, as well as the manifestation of physical symptoms.” (Compl., ¶¶ 34, 46, 61, 78, 6 88, 97, 105.) Nguyen further alleges that “he will continue to experience said physical and 7 emotional suffering for a period in the future not presently ascertainable.” (Id.) In Nguyen’s 8 deposition, he testified that those symptoms include “[s]adness, anxiety, loss of sleep, headache, 9 weight loss and gain normally,” tension, loss of self-confidence and self-esteem, depression, and 10 feeling “withdrawn.” (Letter, at 2:1-9.) Nguyen’s sister testified in her deposition that Nguyen 11 suffered a “nervous breakdown” after leaving Walmart and that, in her view, Nguyen suffers from 12 “serious” depression and sadness. (Id. at 4:8-14.) 13 Nguyen seeks to recover general emotional distress damages and future loss of earnings. 14 (Id., Prayer for Relief, ¶¶ 1, 3.) 15 Walmart seeks to compel Nguyen to undergo an independent medical examination 16 (“IME”) to explore his alleged emotional distress. Nguyen offers instead to stipulate that he does 17 not seek damages “for physical, mental or emotional distress over and above what is usually 18 associated with the injuries claimed.” Walmart contends that the stipulation is insufficient, and it 19 seeks an IME unless Nguyen will stipulate to not introduce evidence of ongoing emotional 20 distress. 21 ANALYSIS 22 The Court has discretion to order a party to submit to a physical or mental examination by 23 a “suitably licensed or certified examiner” if the party’s physical or mental condition is “in 24 controversy.” Fed. R. Civ. P. 35(a)(1). To obtain an order for a mental evaluation over Nguyen’s 25 objection, Walmart must show that (1) Nguyen has placed his mental condition in controversy, 26 and (2) good cause exists for the examination. See Ford v. Contra Costa Cnty., 179 F.R.D. 579, 27 579 (N.D. Cal. 1998) (setting forth factors). 1 A. Nguyen Placed His Mental Condition in Controversy. 2 A mental condition is “in controversy” when it is the subject of litigation. Gavin v. Hilton 3 Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013). Although courts typically do not consider 4 “garden-variety” emotional distress damages to place one’s mental condition “in controversy,” 5 courts will order an IME if “one or more of the following factors is present: (1) the complaint 6 includes a claim for intentional or negligent infliction of emotional distress; (2) the plaintiff 7 alleges a specific mental or psychiatric injury or disorder; (3) the plaintiff claims unusually severe 8 emotional distress; (4) plaintiff offers expert testimony to support the claim of emotional distress; 9 or (5) the plaintiff concedes that her mental condition is ‘in controversy’ for purposes of Rule 35.” 10 Id. The presence or absence of any one of these factors is not dispositive. See Winstead v. 11 Lafayette Cnty. Bd. of Cnty. Comm’rs., 315 F.R.D. 612, 614-15 (N.D. Fla. 2016) (noting that the 12 list of “elements should not be seen as exhaustive, nor should the presence of any one (or more) of 13 them automatically lead to a finding that a plaintiff has put her mental state into controversy”) 14 (emphasis removed). 15 Here, Nguyen does not bring claims for intentional or negligent infliction of emotional 16 distress, does not intend to introduce expert testimony regarding his mental condition, and does 17 not stipulate that he has placed his mental condition in controversy. Further, although “anxiety” is 18 a medical condition, Nguyen does not seek to prove that his alleged anxiety rises to the level of a 19 diagnosis. See, e.g., Perez v. Health, No. 15-cv-01792-HSG-MEJ, 2016 WL 1156497, at **2-3 20 (N.D. Cal. Mar. 24, 2016) (finding IME inappropriate where plaintiffs alleged “anxiety. . . 21 depression[,] and post-traumatic stress” resulting from employment discrimination but where 22 plaintiffs did not seek psychiatric treatment or have medical diagnoses of those conditions). 23 However, Nguyen appears to have “unusually severe emotional distress,” over and above 24 “garden-variety emotional distress.” Gavin, 291 F.R.D. at 164. “Garden-variety emotional 25 distress” is “ordinary or commonplace emotional distress, that which is simple or usual.” Pringle 26 v. Wheeler, No. 19-cv-07432-WHO, 2021 WL 1907824, at *3 (N.D. Cal. Apr. 16, 2021) (quoting 27 Fitzgerald v. Cassil, 216 F.R.D. 632, 637 (N.D. Cal. 2003)). “In contrast, emotional distress that 1 (internal marks omitted). General phrases like “mental and emotional distress,” “pain and 2 suffering,” and “stress, internal turmoil, trauma, and anxiety” reflect “garden variety” emotional 3 distresses. Id. at *4. “[M]ore specific mental injuries such as post-traumatic stress disorder, 4 depression, insomnia, and suicidal ideation” are not garden variety. Id. Physical manifestation of 5 emotional distress may also indicate that the distress is more than garden variety. See, e.g., 6 Mandujano v. Geithner, No. 10-cv-01226-LB, 2011 WL 825728, at *2 (N.D. Cal. Mar. 7, 2011) 7 (loss of sleep, migraines, weight loss, and growing a beard to hide were signs of distress beyond 8 garden-variety); Tamburri v. Suntrust Mortg. Inc., No. 11-cv-02899-JST(DMR), 2013 WL 9 942499, at **2, 4 (N.D. Cal. Mar. 11, 2013) (cracked teeth from stress, severe headaches, lost 10 mental clarity, and suicidal thoughts signs of more than garden-variety distress); Sherman v. 11 Regents of Univ. of California, No. 20-cv-06441-VKD, 2022 WL 19756, at *3 (N.D. Cal. Jan. 3, 12 2022) (permitting IME to explore physical symptoms alleged to follow from emotional harms). 13 Nguyen alleges that he suffered and continues to suffer from “physical and emotional 14 suffering.” Discovery indicates that Nguyen’s physical manifestation of emotional harm includes 15 loss of sleep, headache, and weight loss and gain. These physical manifestations exceed “garden 16 variety” emotional distress and are sufficient to place Nguyen’s mental and physical state in 17 controversy. 18 B. Walmart Has Shown Good Cause for an IME. 19 Courts consider the following factors when determining whether good cause exists to order 20 an IME: “(1) the possibility of obtaining desired information by other means, (2) whether plaintiff 21 intends to prove his claim through testimony of expert witnesses, (3) whether the desired materials 22 are relevant, and (4) whether plaintiff is claiming ongoing emotional distress.” Zarate v. Victory 23 Packaging, LP, No. 22-cv-811-JGB(KKx), 2023 WL 6190699, at *4 (C.D. Cal. July 21, 2023) 24 (quoting Elmansoury v. City of Garden Grove, No. 17-cv-1269-DOC(DFMx), 2019 WL 2871159, 25 at *2 (C.D. Cal. Mar. 26, 2019)). 26 The first of these factors weighs against a finding of good cause because Nguyen has 27 agreed not to use expert testimony to prove his emotional distress. Additionally, Walmart 1 depositions of Nguyen and his sister. 2 The Court finds the remaining two factors weigh heavily in favor of good cause. An 3 examination is relevant given the severe, ongoing emotional distress claimed by Nguyen. 4 Moreover, the examination is highly probative of Nguyen’s claim that he remains unable to work 5 due to his distress caused by Walmart’s misconduct. Denial of Walmart’s request could prejudice 6 Walmart’s ability to prepare a defense. 7 Accordingly, good cause exists to require an IME. 8 C. The IME Request Is Timely. 9 Nguyen claims that an IME is untimely because fact discovery has closed. Courts in this 10 district have recognized that IMEs are not neatly categorized as fact or expert discovery. See 11 Guitron v. Wells Fargo Bank, N.A., No. 10-cv-3461-CW-MEJ, 2011 WL 6012595, at *1 (N.D. 12 Cal. Dec. 1, 2011) (examining issue and noting courts have at times permitted and excluded IMEs 13 sought after close of fact discovery). In the absence of evidence of bad faith from the delinquent 14 party or prejudice to the objecting party, courts will permit IMEs after fact discovery closes and 15 before expert discovery closes. Id. at *2. 16 Here, Walmart perhaps should have sought an IME earlier in the litigation. However, 17 Nguyen does not contend that Walmart purposely delayed its request. Nguyen’s throwaway line 18 that “he will be prejudiced by Defendant’s failure to timely seek a Court order for an IME” does 19 not establish prejudice. Walmart’s motion for summary judgment remains pending and trial is not 20 scheduled to begin until February 2025. There is no indication that an IME will delay the trial 21 dates. 22 Accordingly, the Court finds the request is timely. 23 CONCLUSION 24 For the reasons stated above, the Court GRANTS Walmart’s request to compel a Rule 35 25 examination of Nguyen as follows: 26 Plaintiff Brian Nguyen shall submit to a mental examination by Dr. Judy Ho at a location, 27 time, and date agreed upon by the parties and no later than 30 days from the date of this Order. ] shall last no more than seven hours, excluding breaks. Dr. Ho’s examination may include, but 2 || shall not be limited to, a clinical interview including: gathering of identifying information; 3 inquiries into personal, occupational, educational, religious, drug and alcohol, legal, family, and 4 || marital history; taking a history of psychiatric complaints as well as treatment and diagnosis and 5 || prognosis for the future; taking a history of all physical and psychological injuries or conditions 6 || which are claimed to have resulted or been sustained by Nguyen as a result of the incidents giving 7 || rise to this lawsuit; taking a formal mental status examination; and any other subjects Dr. Ho 8 deems necessary to make a determination in this case. Breaks for personal comfort or necessity 9 || may be taken as needed. 10 Only the examining doctor and the Plaintiff to be examined shall be present at each 11 appointment. Audio-recording will be permitted. The results of this examination may be used in 12 || this litigation and for any lawful purpose outside of this litigation, to the extent allowed by law. 13 The parties may seek leave to file any materials produced in or as a result of the examination 14 || under seal, if appropriate. IT IS SO ORDERED. 16 |] Dated: October 15, 2024 ft ( Ltd Lwhio LAG : JEEFREY/S;/ WHIT 4 18 United Sfates Distrigt Judge 19 {/ □□□ 20 21 22 23 24 25 26 27 28