United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL
INDEPENDENT MEDICAL EXAMINATION OF NATHAN HOLBURN
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Kitsap Public
Health District's (“KPHD”) motion to compel
independent medical examination of Plaintiff Nathan Holburn
(“Mr. Holburn”). Dkt. 38. The Court has
considered the pleadings filed in support of and in
opposition to the motion, the supplemental briefing submitted
in response to the Court's request, and the remainder of
the file and hereby grants the motion for the reasons stated
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
January 9, 2018, Mr. Holburn filed a complaint against KPHD
alleging discrimination in the workplace. Dkt. 1. Mr. Holburn
was employed with KPHD as an Environmental Health Specialist
for over 26 years. Id. ¶ 2.1. Mr. Holburn was
diagnosed with dyslexia prior to being hired at KPHD in 1990.
Id. ¶ 4.1. In 2003, KPHD requested Mr. Holburn
be evaluated for dyslexia, and Mr. Holburn provided the
written results of that evaluation to KPHD. Dkt. 60,
Declaration of Nathan Holburn, ¶ 2.
Holburn performed his job successfully with accommodation for
his dyslexia until 2008. Dkt. 1, ¶ 4.2. Beginning in
2008, Mr. Holburn alleges that his accommodations were
reduced, causing his work performance to suffer. Id.
¶¶ 4.3-4.4 . In 2014, KPHD required Mr. Holburn
“to undergo an additional medical evaluation of his
disabilities, ” Id. ¶ 4.9, and KPHD
received the written results of that evaluation as well, Dkt.
60, ¶ 2.
Holburn's claims include failure to provide reasonable
accommodation for his dyslexia disability, maintenance of a
hostile work environment causing Mr. Holburn to suffer
depression and post-traumatic stress disorder
(“PTSD”), and failure to provide and maintain
protected leave for Mr. Holburn's depression and PTSD.
Dkt. 1, ¶¶ 5.1-5.2. Mr. Holburn seeks general and
specific damages, liquidated damages, and other relief.
Id., ¶¶ 6.1-6.6.
17, 2019, KPHD filed the instant motion seeking to compel an
independent medical examination of Mr. Holburn pursuant to
Fed.R.Civ.P. 35. Dkt. 38. On June 3, 2019, Mr. Holburn
responded. Dkt. 43. On June 7, 2019, KPHD replied. Dkt. 45.
On June 10, 2019, Mr. Holburn surreplied. Dkt. 49. On June
21, 2019, the Court issued an order requesting that the
parties submit supplemental briefing clearly identifying the
particular medical conditions in controversy and good cause
for independent examination of those conditions. Dkt. 56. On
June 28, 2019, the parties submitted the requested
supplemental briefing. Dkts. 57, 59.
seeks an order compelling Mr. Holburn to attend a medical
examination administered by Russell A. Vandenbelt, M.D
(“Dr. Vandenbelt”), a board-certified
psychiatrist, consisting of an interview with Dr. Vandenbelt
and “standardized testing under the MMPI-2-RF.”
Dkt. 38 at 9, 11; Dkt. 47 at 1. Under Rule 35, the Court
“may 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). A defendant seeking a
Rule 35 exam must show that the plaintiff's physical or
mental condition is “in controversy” and that
“good cause” exists for the requested exam. See
Houghton v. M & F Fishing, Inc., 198 F.R.D. 666,
667 (S.D. Cal. 2001). The decision to order a Rule 35 exam is
within the Court's discretion. See Fed.R.Civ.P. 35(a)(1);
see also Muller v. City of Tacoma, C14-5743-RJB,
2015 WL 3793570, at *2 (W.D. Wash. June 8, 2015).
Court previously found that KPHD's motion was unclear as
to whether it sought independent medical examination of Mr.
Holburn's depression and post-traumatic stress disorder
(“PTSD”) only or sought examination of Mr.
Holburn's dyslexia as well. Dkt. 56 at 2-3. The Court
requested supplemental briefing to allow Mr. Holburn to be
advised of and to have the opportunity to address the entire
scope of the independent medical examination KPHD seeks.
Id. at 3.
Holburn previously acknowledged that his depression and PTSD
were in controversy but disputed whether the good cause
element had been met given that the information sought was
already available through his medical records provided in
discovery and through depositions of his treating medical
providers. Dkt. 43 at 1-2. Mr. Holburn now admits that his
dyslexia is also in controversy regarding his requests for
accommodation in the workplace, but he disputes whether there
is good cause for a new evaluation given that KPHD requested
he submit to evaluation of his dyslexia on two occasions
during his employment. Dkt. 59 at 2. Mr. Holburn explains
that his treating psychiatrist Dr. Robert Reinach has
recommended Mr. Holburn not be subjected to Dr.
Vandenbelt's examination because the examination would
likely harm Mr. Holburn. Dkt. 43 at 2. (citing Dkt. 44). If
the Court grants the motion for independent medical
examination, Mr. Holburn requests that the Court limit the
scope of the examination and order protective measures.
Id. at 6-7.
Court finds that its prior tentative conclusion, that Mr.
Holburn's dyslexia is implicated not only in his ability
to perform the evaluations sought by the independent examiner
but also in KPHD's liability, is correct. See Dkt. 56 at
3. Further, the Court finds that good cause exists for Dr.
Vandenbelt's examination to encompass all of the medical
conditions in controversy in this case, including dyslexia,
learning disability, depression, and PTSD, in order to
provide an independent assessment of the conditions relevant
to KPHD's liability and the potential interrelationship
and causative impact of each condition as well as to ensure
the accuracy of the examination.
the Court finds that Dr. Vandenbelt's board certification
in psychiatry supports a reasonable inference that he will
not harm Mr. Holburn in conducting the examination. Dr.
Vandenbelt will be permitted to use his medical judgment to
select appropriate examination methods in the context of Mr.
Holburn's conditions. The Court orders that Mr.
Holburn's counsel Ronald L. Jackson (“Mr.
Jackson”) be permitted to attend the examination as a
silent observer only but declines to impose any of the other
limitations Mr. Holburn requested. See Dkt. 43 at 6-7. Mr.
Holburn or his counsel may stop the examination if Mr.
Holburn is being subjected to harm but may be subject to
sanctions in the form of the cost of a follow-up examination
if KPHD proves that the examination was improperly