Barry v. Shell Oil Company et al

Filing 112

ORDER granting 103 Motion to Compel. While Arctia has provided notice as to the person who will be performing the IME, it has not provided the other information required under Rule 35(a)(2)(B). Arctia is directed to file a notice within fourteen days of this order as to the time, place, manner, conditions, and scope of the examination. Signed by Judge John W. Sedwick on 4/3/17. (GMM, CHAMBERS STAFF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ALASKA

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BLANE BARRY,

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Plaintiff,
vs.

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SHELL OIL COMPANY, ARCTIA
OFFSHORE, LTD., SHELL
OFFSHORE, INC.; and SAFETY
MANAGEMENT SYSTEMS, LLC,

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Defendants.

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2:15-CV-00004 JWS
ORDER AND OPINION
[Re: Motion at docket 103]

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I. MOTION PRESENTED
At docket 103, pursuant to Rule 35 of the Federal Rules of Civil Procedure,

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Defendant Arctia (“Arctia”) moves the court to compel Plaintiff Blane Barry (“Plaintiff”) to

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submit for an independent medical examination (“IME”) with psychiatrist Dr. Richard

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Roniger. Plaintiff responds at docket 106, and Arctia replies at docket 108. Oral

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argument was not requested and would not assist the court.

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II. BACKGROUND
This matter arises out of a claim for personal injuries sustained by Plaintiff in
August of 2012 while he was working aboard the M/V NORDICA, a vessel owned by

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Arctia. Plaintiff alleges in his complaint that he seriously injured his back and neck
while lifting a heavy cable. He seeks damages for lost earnings, lost earning capacity,

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past and future medical expenses, and “physical and emotional pain and suffering and

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loss of enjoyment of life.”1 Arctia sought to schedule Plaintiff for a psychiatric

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evaluation given his claims of emotional distress and evidence of Plaintiff’s post-

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accident psychological and psychiatric treatment. Plaintiff objected to the evaluation.

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He does not agree that an IME is warranted because he argues that he is only claiming

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“garden variety” emotional distress damages.
III. STANDARD OF REVIEW

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Rule 35 governs the court’s determination of a motion for an IME. That rules
states as follows:

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The court where the action is pending 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. . . . The order . . .
may be made only on motion for good cause . . . . 2

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Under the rule then, Plaintiff’s mental health examination is only warranted here if his

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mental condition is “in controversy” and if Arctia has shown “good cause” for requesting

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the examination.3 These requirements “are not met by mere conclusory allegations of

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the pleadings—nor by mere relevance to the case—but require an affirmative showing

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by the movant that each condition as to which the examination is sought is really and

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Doc. 4 at ¶¶ 23, 24, 25.
Fed. R. Civ. P. 35.
Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964).

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genuinely in controversy and that good cause exists for ordering each particular
examination.”4

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When determining whether a plaintiff’s mental health is “in controversy,” district

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courts in this circuit apply the multi-factor test set forth in Turner v. Imperial Stores.5

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Under the Turner test, the mental examination of a plaintiff is proper where that plaintiff

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alleges emotional distress and the case involves one or more of the following factors:

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1)

a cause of action for intentional or negligent infliction of emotional

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distress;

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2)

an allegation of a specific mental or psychiatric injury or disorder;

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3)

a claim of unusually severe emotional distress;

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plaintiff’s offer of expert testimony to support a claim of emotional distress;

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and/or

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5)

plaintiff’s concession that his or her mental condition is “in controversy”
within the meaning of Rule 35.6

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A claim of emotional distress, without the presence of one or more of these additional

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factors, is insufficient to put a plaintiff’s mental health in controversy.7

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Id. at 118.

291 F.R.D. 90 (S.D. Cal. 1995); see also Hernandez v. Simpson, No. ED-CV-13-2296,
2014 WL 4090513, at *2 (C.D. Cal. Aug. 18, 2104) (listing a few district courts that have applied
the test); Ruvane v. Elizabeth F, Inc., No. 3:15-cv-00079, 2016 WL 6514181, at *4 (D. Alaska
Aug. 25, 2016) (applying the Turner factors).

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Turner, 161 F.R.D. 89, 98 (S.D. Cal. 1995).
Id. at 97.

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When determining whether good cause exists, courts look at a variety of factors,
including but not limited to 1) whether the information can be obtained through other

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means; 2) whether the plaintiff plans to prove emotional distress through an expert

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witness; 3) whether the desired information from the examination is relevant; and

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4) whether the plaintiff is claiming ongoing emotional distress.8

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IV. DISCUSSION
Applying the Turner factors to the situation presented here demonstrates that

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Plaintiff has placed his mental condition in controversy. While the first and fifth Turner

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factors do not support an IME—Plaintiff does not include an independent claim for

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intentional or negligent infliction of emotional distress, and he does not concede that his

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mental health is at issue—the other three factors support Arctia’s position that Plaintiff’s

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mental condition has been placed in controversy. Plaintiff’s post-accident mental health

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records, his expert’s report, and his own deposition make clear that he is alleging the

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2012 work injury led to a specific mental injury or disorder. One of his experts,

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Dr. Angel Roman, claims that since the accident Plaintiff has suffered from “Major
Depressive Disorder”9 and Plaintiff’s records indicate that he has been hospitalized

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based on that disorder numerous times since the accident. 10 Plaintiff attempted to

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commit suicide on one occasion after “hallucinations, delusions, agitation, anxiety,

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depression, and other factors resulting in the loss of functioning,” and Plaintiff reported

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Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 165 (N.D. Cal. 2013); Ruvane, 2016
WL 6514181, at * 4.

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Doc. 106-2 at p. 31 (Ex. B at p. 30).
Doc. 106-3 (Ex. C); doc. 106-4 (Ex. D).

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that these thoughts of “wanting to die . . . are brought on by his hopeless feelings
related to dealing with chronic pain.”11 He obtained a psychiatric diagnosis “indicated by

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a DSM IV diagnosis on Axis 1.”12 Dr. Roman concludes that Plaintiff’s major depression

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“is a factor of his work injury not diagnosed prior to the lifting injury in any preaccident

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records.”13 Plaintiff testified that the accident and losing his job affected him to the point

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of hospitalization for his behavior.14

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The same evidence discussed in the preceding paragraph also demonstrates

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satisfaction of the third factor of the Turner test: a claim of unusually severe emotional

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distress. Plaintiff argues that his claim for emotional distress damage is like any other

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case where the plaintiff has distress normally associated with or a result of recovery

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from a physical injury. While mental anguish, fear, anxiety, anger, and depression as a

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result of suffering and recovering from a physical injury are not considered unusually

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severe, Plaintiff’s situation involves something more than “garden-variety” emotional

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distress. He is claiming an actual depressive condition, Major Depressive Disorder,

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which resulted in numerous hospitalizations and attempted suicide and which is an

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ongoing issue based on this request for future mental health treatment. The situation

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here is similar to that in Gurshin v. Bank of America, National Assoc.,15 where the
district court granted the defendant’s request for an IME where the plaintiff had been

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Doc. 106-4 at p. 1 (Ex. D. at p. 1).

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Id.

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Doc. 106-2 at p. 31 (Ex. B at p. 30).
Doc. 103-2 at p. 3 (Ex. B. at p. 2).
No. 2:15-cv-323, 2016 WL 384929 (D. Nevada Jan. 27, 2016).

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seeking mental health treatment and had attempted suicide, all of which she alleged
related to her claims against defendant. The court deemed such distress sufficiently

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severe: “Hospitalization and attempted suicide are manifestations of unusually severe
emotional distress.”16
Finally, the record shows that Plaintiff does in fact plan to offer expert testimony
about his mental health condition. Dr. Roman’s report concludes that, as a result of his
injuries, Plaintiff suffers from Major Depressive Disorder and concludes that Plaintiff’s

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lifetime costs for psychological and psychiatric care will total over $161,260.50. 17

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Plaintiff asserts that Dr. Roman is only his “future-medical-care expert” and will only

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testify about Plaintiff’s need for some psychological and psychiatric treatment as part of

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his overall care for the physical injuries caused by Arctia’s negligence.18 In other words,

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Plaintiff asserts that his claim for damages stems only from his physical injuries.

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However, claiming he needs lifetime mental health treatment to cope with the injuries

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suffered from the accident is the equivalent of claiming the accident caused mental

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health problems that should be accounted for if and when any damages are awarded.

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He has an expert slated to testify about what his lifetime psychological and psychiatric

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treatment will cost, which certainly puts Plaintiff’s mental health condition and questions
about the extent and severity of his mental health condition at issue here.

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Id. at *2.
Doc. 106-2 (Ex. B.).
Doc. 106 at p. 6.

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Plaintiff cites to a case in this district, Ruvane v. Elizabeth F, Inc.,19 in favor of his
position that a psychological IME is not warranted. Ruvane is distinguishable. In that

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case the IME request was denied in part because Plaintiff had made it clear he was not

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claiming anything more than just typical emotional distress and was not seeking specific

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psychological damages.20 Here, Plaintiff is asking for damages related to Major

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Depressive Disorder and the future treatment thereof. In Ruvane, the plaintiff did not

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have any witness designated to give testimony regarding emotional damages beyond

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“ordinary grief , anxiety, anger, and frustration any person feels when something bad

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happens.”21 Again, Dr. Ramos is going to give testimony regarding the need for future

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psychological and psychiatric treatment. Also, the court in Ruvane noted that an IME is

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not warranted just because a defendant suggests there is a possible mental health

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explanation for a plaintiff’s complaint. Here, Arctia is not making such a claim. Rather,

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it wants to be able to provide evidence to respond to Plaintiff’s claim that he will need

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long-term mental health treatment as a result of the 2012 accident.

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The court also concludes that Arctia has shown sufficient good cause for an IME

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here. First, evidence regarding the extent of Plaintiff’s mental health condition is clearly

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relevant given the discussion above. Second, Plaintiff is claiming ongoing emotional

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distress, as evidenced by the request for future damages for psychological and

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psychiatric care. Finally, he has an expert designated to discuss the need for and cost

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No. 3:15-cv-00079, 2016 WL 6514181 (D. Alaska Aug. 25, 2016).
Id. at *5.
Id.

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of such ongoing care. Arctia should have the opportunity to provide rebuttal evidence
about the need for and cost of future treatment.

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V. CONCLUSION

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Based on the preceding discussion, Arctia’s motion to compel Plaintiff to submit
for an IME with psychiatrist Dr. Richard Roniger is GRANTED. While Arctia has
provided notice as to the person who will be performing the IME, it has not provided the
other information required under Rule 35(a)(2)(B). Arctia is directed to file a notice

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within fourteen days of this order as to the time, place, manner, conditions, and scope
of the examination.
DATED this 3rd day of April 2017.

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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

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