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Clancy v. Shanahan

United States District Court, D. Kansas

March 28, 2019

PATRICK A. SHANAHAN, Acting Secretary, Department of Defense Defendant.


          James P. O'Hara, U.S. Magistrate Judge.

         Defendant has filed a motion for a Rule 35 mental examination of plaintiff in this disability discrimination case (ECF No. 67). In plaintiff's response (ECF No. 70), she agrees to the mental examination subject to three conditions: 1) the examination is limited to one hour; 2) defendant pays for her transportation to Springfield, Missouri, or moves the examination to a town closer to plaintiff's home; and 3) defendant reimburses plaintiff for mileage and expenses for the trip. For the reasons set forth in this order, defendant's motion is granted. Plaintiff's conditions are denied.


         The parties previously disagreed about whether defendant is entitled to a Rule 35 mental examination. The scheduling order, entered on November 20, 2018, provides that the parties should file a motion regarding any Rule 35 examination sufficiently before the deadline.[1] On February 2, 2019, before defendant sought a Rule 35 examination, plaintiff filed a motion for relief, arguing that an examination in this case was not appropriate and that any information relevant to plaintiff's claimed disability is covered through other documents in the record.[2] Defendant responded, asserting many of the same arguments as it does in the instant motion, [3] and the court denied plaintiff's motion as premature.[4]

         On March 14, 2019, defendant filed this motion seeking a Rule 35 mental examination of plaintiff “to determine if [plaintiff] suffers from posttraumatic stress disorder (“PTSD”) or any psychological problems.”[5] The examination will involve a clinic interview and necessary psychological testing.[6] Defendant argues that the examination is appropriate because plaintiff is alleging discrimination under the Rehabilitation Act based upon a psychiatric disability, and part of plaintiff's burden is to prove she is, in fact, disabled.[7] Defendant further argues that plaintiff's claim for emotional damages necessitates “discovery exploring the basis of those claims, particularly in light of the nature of her alleged psychiatric disability.”[8]

         Rule 35 Medical Examination Standard

         Fed. R. Civ. P. 35 governs physical and mental examinations: “The court where the action is pending may order a party whose mental or physical condition - including blood group - is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Parties have no inherent right to this examination; the court must grant permission.[9] To obtain permission, defendant must show that 1) plaintiff's mental condition is in controversy and 2) that good cause exists to conduct the examination.[10] While defendant must provide more than mere conclusory allegations, [11]the pleadings alone may be sufficient to meet these requirements.[12]

         The requirement that plaintiff's condition truly be in controversy is to “guard against the use of requests for mental examinations as a tool for harassment, intimidation, or delay” in what courts may deem “garden variety” cases.[13] Courts have held that garden variety claims of emotional distress are not enough to warrant a mental examination.[14] In contrast, courts are more likely to grant a Rule 35 examination when the plaintiff alleges that defendant's conduct led to specific diagnoses for the plaintiff, [15] when plaintiff's claims are for particularly severe emotional distress, [16] or when plaintiff's alleged mental and emotional pain and suffering are ongoing.[17]

         Defendant must also show good cause for the examination, which is necessarily related to the requirement that the mental condition be in controversy.[18] Courts look to the presence of one or more of the following factors: “(1) plaintiff has asserted a specific cause of action for intentional or negligent infliction of emotional distress; (2) plaintiff has alleged a specific mental or psychiatric injury or disorder; (3) plaintiff has claimed unusually severe emotional distress; (4) plaintiff has offered expert testimony in support of [his or her] claim for emotional distress damages; and (5) plaintiff concedes that [his or her] mental condition is “in controversy” within the meaning of Rule 35(a).[19]

         Fed. R. Civ. P. 35 also requires the movant to specify the “time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” The trial court has discretion to grant or deny the motion.[20] Generally, the court should liberally construe the rule in favor of granting discovery.[21]

         Defendant is Entitled to a Rule 35 Examination

         As an initial matter, the court agrees with defendant that plaintiff's mental condition is in controversy due to the nature of her claim. To establish a prima facie claim, plaintiff must establish that (1) she is disabled within the meaning of the ADA;[22] (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) she was discriminated against because of her disability.”[23] Whether plaintiff is disabled does not appear to be in controversy. Plaintiff concedes that she “has a long-term treatment history established by her specialist”[24] and that her “disability is documented and recorded with the former employer.”[25] Whether plaintiff was otherwise qualified for her job, and whether she was discriminated against because of her disability, are factual questions to be determined by discovery related to plaintiff's mental fitness in light of relevant employment qualifications.[26]

         Further, plaintiff's allegations and claimed damages support defendant's entitlement to a Rule 35 mental examination. Admittedly, plaintiff's inconsistent use of tenses in her various filings makes it difficult to determine her timeline of certain events. For example, in one motion she alleges that “the constant harassment caused plaintiff to be depressed and anxious, which in turn led to a worsening of her mental condition and was hospitalized in March 2017, not only, she is mentally deteriorated.”[27] In a later motion, plaintiff makes similar comments: “Clancy was emotionally distressed after the November 03, 2016 incident and was hospitalized for a few days in March 14, 2017 at Phelps County Medical Center in Rolla, Missouri. Clancy was not only mentally deteriorated. She is also suffering from financial hardship, including her family dependents of this negative job action.”[28] The timing of the damages and mental issues - and whether they are ongoing - is unclear in sentences like these.

         However, clearly there is enough in the record to support defendant's contention that plaintiff's mental illnesses are in controversy. In her response to defendant's Rule 35 motion, plaintiff includes the following:

• “Mental illness affects my sleep.”[29]
• “Psychological problem[s] affect my concentration.”[30]
• “Anxiety and major depression substantially limited [my] major life activities.”[31]
• “Since I was diagnosed for PTSD, anxiety, and major depression, this medical condition left me of no sexual desire and no interest in sexual activity.”[32]
• “The ongoing medical condition and treatment for major depression is ruining my sexual life and there is no pill or treatment for it.”[33]

         Plaintiff also attaches as exhibits letters from treaters, which confirm that plaintiff is, as of February 2019, undergoing ongoing mental health treatment:

• “Ms. Clancy is being treated for symptoms of PTSD . . . with anxiety and a Major Depressive Disorder.”[34]
• “[H]er symptoms have aggravated by the way she was treated at work.”[35]
• Letters from providers in 2018 and 2019 establish that plaintiff has “the following diagnoses: Major Depressive Disorder, Post-Traumatic Stress Disorder, Generalized Anxiety Disorder.”[36]
• Plaintiff “suffers from depression and had been on medication for this since 2013 till now.”[37]
• Plaintiff is “diagnosed with Posttraumatic Stress Disorder and Major Depressive Disorder.”[38]

         The court has balanced the factors of the “good cause” test. On one hand, plaintiff has not alleged intentional or negligent infliction of emotional distress, and plaintiff does not appear to offer any expert testimony.[39] Indeed, plaintiff does not explicitly allege that she is seeking emotional distress damages in her complaint. Rather, the monetary damages she seeks are “back pay and other damages.”[40] But in light of her various filings in this case, the court construes her assertions in the complaint that her “symptoms have been aggravated and have been hospitalized, ”[41] as likely alleging emotional distress damages. Regardless, as demonstrated above, plaintiff alleges multiple times throughout the record that she has specific, ongoing mental health disorders because of defendant's conduct. The injuries alleged as a result of defendant's conduct “extend far beyond a mere ‘garden variety' claim for emotional distress.”[42] Based on defendant's proffer and the current record, the court grants defendant's motion.

         Scope of Examination

         Plaintiff asks the court to limit the Rule 35 examination to one hour.[43] Defendant represents the examination will likely take up to six hours.[44] The court agrees with defendant that one hour is a “purely arbitrary limit” that would “severely limit Dr. Pietz's ability to perform a comprehensive evaluation which is warranted in this case.”[45]Defendant has provided sufficient detail about the scope, time, manner, and conditions of the examination.[46] Because of the broad scope of mental illnesses plaintiff alleges - Major Depressive Disorder, Post-Traumatic Stress Disorder, and Generalized Anxiety Disorder - the court will not limit the examination in duration. The court expects the examination to be limited to what is reasonably necessary and to last no longer than one day as defendant represents is expected.[47]

         Location ...

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