Peters v. Nelson

153 F.R.D. 635, 28 Fed. R. Serv. 3d 1225, 1994 U.S. Dist. LEXIS 8255, 1994 WL 63578
CourtDistrict Court, N.D. Iowa
DecidedFebruary 24, 1994
DocketNo. C 93-4008
StatusPublished
Cited by30 cases

This text of 153 F.R.D. 635 (Peters v. Nelson) is published on Counsel Stack Legal Research, covering District Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peters v. Nelson, 153 F.R.D. 635, 28 Fed. R. Serv. 3d 1225, 1994 U.S. Dist. LEXIS 8255, 1994 WL 63578 (N.D. Iowa 1994).

Opinion

ORDER

JARVEY, Chief United States Magistrate Judge.

This matter comes before the court pursuant to defendants’ January 26, 1994, motion for an order to require plaintiff to submit to mental examination and to extend defendants’ deadline to designate expert witnesses (docket number 10). Plaintiff resisted the motion on February 8, 1994. The motion is granted.

Plaintiff Malinda Peters (Peters) filed this lawsuit on January 15,1993, alleging that she was sexually abused while she was a minor by her step-grandfather, defendant Cecil Wayne Nelson, and alleging that Cecil’s wife, defendant Della Nelson, failed to prevent such abuse. The complaint alleges intentional infliction of emotional distress, battery, negligent infliction of severe emotional distress, outrageous conduct, and negligence, and seeks punitive damages. The present dispute involves the Nelsons’ efforts to secure mental examinations of Peters by both a psychiatrist and a neuropsyehologist.

Pursuant to court-ordered deadlines, Peters disclosed her medical expert, licensed psychologist Susan Phipps-Yonas, Ph.D., on October 28, 1993. Peters provided the Nelsons with a copy of Dr. Phipps-Yonas’s evaluation dated October 11, 1993. The Nelsons then concluded that it would be necessary to employ both a psychiatrist and a neuropsy-chologist in order adequately to defend against Peters’s allegations. In a letter dated December 20, 1993, the Nelsons notified Peters that they had made arrangements for Peters to be seen by a psychiatrist, Dr. Michael Taylor, on January 5, 1994, and requested that Peters schedule an appointment with their chosen neuropsyehologist, Dr. Craig Rypma, at a time convenient for Peters.

Peters objected to two examinations, appeared only for the examination by Dr. Taylor, and has refused to schedule an appointment with Dr. Rypma. Peters made two separate requests for some legal authority the Nelsons believed supported their assertion that they were entitled to two independent medical examinations of Peters.1 The parties were unable to reach an amicable resolution of their dispute and the Nelsons filed the instant motion.

The Nelsons argue that they have an absolute right to require Peters to be examined by both experts. They argue that Peters’s claim is complex and based on allegations of extensive mental injury of uncertain cause and origin. The Nelsons therefore argue that examination by specialists in two different fields is appropriate. They assert further that if they are entitled to only one examination and one expert witness, that the expert they would rely upon would be Dr. Rypma. The Nelsons assert that at a minimum they have the right to choose the doctor to do the examination, not to have the plaintiff choose which medical examination she will accept. The Nelsons therefore request that the court order Peters to submit to examination by Dr. Rypma and extend their deadline to designate experts until after Dr. Rypma has examined Peters.

Peters argues that there is no authority for the Nelsons’s assertion that they are entitled to a second examination. She argues, first, that there is no right under Fed. R.Civ.P. 35(a) to any independent medical examination. Next, she argues that the Nelsons cannot meet the “good cause” requirement for a second examination. Peters also [637]*637argues that the potential painfulness and dangerousness of another 'mental examination outweighs the Nelsons’s need for a further examination. She asserts that Dr. Ryp-ma’s examination is needlessly duplicative of Dr. Taylor’s comprehensive examination and that the Nelsons are merely “shopping” for a favorable medical report while inflicting an intrusive procedure on Peters which will require her to recount yet again her sexual exploitation by the Nelsons.

FedR.Civ.P. 35(a) provides,- in pertinent part,

[w]hen the mental or physical condition (including blood group) of a party or of a person in the custody or under the legal control 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 or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown____

(Emphasis added). The United States Supreme Court addressed the requirements of Rule 35 in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

Rule 35, therefore, 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 or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements ... are necessarily related____ [These requirements] mean[ ] ... that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule.

Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 242-43, 13 L.Ed.2d 152 (1964) (citations omitted); see also Acosta v. Tenneco Oil Co., 913 F.2d 205, 208 (5th Cir. 1990) (quoting Schlagenhauf); Notes of Advisory Committee, 1970 Amendment (stating that subsequent amendment had no effect on the stress placed on these requirements by Schlagenhauf); Brown v. Ringstad, 142 F.R.D. 461, 463 (S.D.Iowa 1992) (good cause requirement). In Schlagenhauf, the Court stated that the “in controversy” and “good cause” requirements cannot be met by “mere conclusory allegations of the pleadings,” nor by “mere relevance to the case.” Schlagen-hauf, supra, 379 U.S. at 118-19, 85 S.Ct. at 242-43. Rather, “the movant must show 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.” Id.

Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury ... places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.

Id.

Additionally, the movant has no absolute right to an examination by a particular physician of his or her choice, Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D.Penn. 1990); Wright & Miller, Federal Practice and Procedure: Civil § 2234, nor even to any examination, in light of the Rule’s discretionary terms. FedR.Civ.P. 35(a) (court “may” order examination). Rather, even when good cause is shown, whether to order a proposed examination is committed to the discretion of the court. Hardy v. Riser, 309 F.Supp. 1234, 1241 (N.D.Miss.1970); Moore v. Calavar Corp., 142 F.R.D. 134, 135 (W.D.La.1992); Stinchcomb, supra, at 30; see also Schlagenhauf, supra, 379 U.S. at 118, 85 S.Ct. at 242 (permitting examination demands “discriminating application” of Rule’s

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Bluebook (online)
153 F.R.D. 635, 28 Fed. R. Serv. 3d 1225, 1994 U.S. Dist. LEXIS 8255, 1994 WL 63578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peters-v-nelson-iand-1994.