Miller v. Boys & Girls Clubs of Snohomish County

          ORDER GRANTING DEFENDANT'S MOTION FOR A MEDICAL EXAMINATION

          John C. Coughenour, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Boys & Girls Clubs of Snohomish County's motion for a Federal Rule of Civil Procedure 35 medical examination (Dkt. No. 34). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

         I. BACKGROUND

         The underlying facts of this case have been laid out in full in the Court's order on Defendant's motion for summary judgment. (Dkt. No. 39 at 1-6.) The additional facts relevant to this motion are as follows. Plaintiff is alleging “loss of compensation and benefits, emotional distress, anxiety, humiliation, and embarrassment” and “compensatory damages for past, present, and future emotional harm, humiliation, and embarrassment” related to Defendant's alleged race discrimination and retaliation. (Dkt. 1 at ¶¶ 3.3, 3.6, 3.9, 3.12, 4.1.) Plaintiff testified at her deposition that her primary care physician, Dr. Deborah Nalty, has prescribed her anxiety medication, (Dkt. No. 35-2 at 4-8), and Plaintiff has received mental health counseling from Gretchen Jones, a licensed mental health counselor at Crossroads Consulting, (id. at 9-25). Dr. Nalty produced Plaintiff's medical records, (Dkt. No. 36-1), and Ms. Jones will be deposed this month, (Dkt. Nos. 25, 26, 34). Plaintiff also disclosed Ms. Jones as a lay witness that may testify at trial “about the emotional distress [Plaintiff] experienced while working for” Defendant. (Dkt. No. 35-6 at 3.) Defendant filed this motion for a medical examination on February 23, 2017, a month after the discovery cut off.

         II. DISCUSSION

         A. Federal Rule of Civil Procedure 35 Standard

         Federal Rule of Civil Procedure 35 authorizes the Court, “on motion for good cause, ” to order “a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed.R.Civ.P. 35(a)(1)-(2). In essence, the rule requires two showings: (1) that a party's mental or physical condition has been placed “in controversy, ” and (2) that there is “good cause” for the examination. Id.; see Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995). The rule demands “a discriminating application by the trial judge.” Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).

         B. Timeliness

         Plaintiff argues that this motion is untimely because it was filed after the discovery deadline. (Dkt. No. 37 at 5-8.) Particularly because trial is now scheduled for October 16, 2017, (Dkt. No. 43), the Court is not persuaded by Plaintiff's protests regarding the timing of Defendant's motion. See Nellams v. Eagle Marine Services, C13-1504-JCC, Dkt. No. 110 at 5 (quoting Bush v. Pioneer Human Servs., 2010 WL 324432, at * 5 (W.D. Wash. Jan. 21, 2010) (“[A]lthough the limited case law is somewhat split on whether a Rule 35 expert report and examination must be done before the expert disclosure deadline, this Court takes the position that the deadline set in the scheduling order for expert reports under Rule 26(a)(2) does not apply to the issuance of a Rule 35 report.”)). Therefore, the Court will consider the merits of the motion.

         C. Merits

         1. In Controversy

         The Ninth Circuit has not formalized what it means to have placed a physical or mental condition “in controversy.” Most courts have construed Rule 35's requirements such that “the party seeking to compel the evaluation [must] establish an additional element.” Ford v. Contra Costa Cnty., 179 F.R.D. 579, 580 (N.D. Cal. 1998) (citing Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D. Cal. 1995) (reviewing relevant reported cases)). The Turner decision, which examined the reported case law on the issue, identified the following factors to consider in assessing whether or not a physical or mental condition is in controversy:

(1) [T]he plaintiff has pled a cause of action for intentional or negligent infliction ...