United States District Court, W.D. Washington, Seattle
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 ...