Robinson v. HD Supply, Inc.

Filing 64

ORDER signed by Magistrate Judge Allison Claire on 7/19/2013 DENYING 48 Motion to Compel. (Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRIS ROBINSON, 12 Plaintiff, 13 14 No. 2:12-cv-604 GEB AC v. ORDER HD SUPPLY, INC., 15 Defendant. 16 On July 17, 2013, the court held a hearing on defendant HD Supply, Inc.’s (“HDS”) June 17 18 5, 2013 motion to compel an independent medical examination (“IME”) of plaintiff Kris 19 Robinson. Sean Gavin appeared for plaintiff, and Brian Inamine appeared for HDS. On review 20 of the motion, the documents filed in support and opposition, upon hearing the arguments of 21 counsel, and good cause appearing therefore, THE COURT FINDS AS FOLLOWS: RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 22 23 A. On or about March 24, 2008, HDS, an industrial distribution corporation, hired plaintiff to 24 25 Factual Allegations1 work as an Assistant Transportation Manager. Sec. Am. Compl. (“SAC”) ¶ 8, ECF No. 30. 26 27 28 1 These facts are reproduced from the Honorable Garland E. Burrell, Jr.’s November 1, 2012 order granting in part and denying in part defendant’s motion to dismiss the second amended complaint. See Order Part. Granting Def.’s Mot. Dismiss Nov. 1, 2012, at 2-5, ECF No. 34. 1 1 Plaintiff’s job duties included “scheduling truck drivers and coordinating pick-ups and deliveries 2 throughout Northern California,” and “comply[ing] with state and federal laws and regulations,” 3 such as the Federal Motor Vehicle Safety Regulations. Id. ¶¶ 9-10. On January 11, 2010, 4 “[Plaintiff] informed Mary Sullivan, [HSD’s] Distribution Center Manager and [Plaintiff’s] 5 immediate supervisor, that he had recently been diagnosed with PTSD as a result of events that 6 occurred during his overseas service in the United States Marine Corps.” Id. ¶ 11. Seven 7 working days later, Ms. Sullivan suspended Plaintiff from his job indefinitely. Id. ¶¶ 12, 20, 30. 8 On January 20, 2010, “Ms. Sullivan instructed [Plaintiff] to locate a driver who would be 9 able to make a delivery from Sacramento to Salinas on short notice. [Plaintiff] was concerned 10 about this instruction, however, because he knew that, based on the distance between these 11 locations, this delivery route would necessitate a violation of the U.S. Department of 12 Transportation Hours-of-Service Regulations.” SAC ¶ 13, ECF No. 30. “[Plaintiff] shared his 13 concern with Ms. Sullivan, who refused to rescind her order. Thereafter, [Plaintiff] consulted with 14 [HDS’s] Regional Transportation Manager, Bruce Gagon” and “suggested an alternative method 15 of accomplishing the delivery without violating any Department of Transportation Regulations.” 16 Id. ¶ 14. “Mr. Gagon advised [Plaintiff] that if he was uncomfortable with the instruction, he 17 should ask Ms. Sullivan to issue the order herself. [Plaintiff] complied with [Mr. Gagon’s] 18 direction . . . and refused to issue” the order. Id. ¶ 15. Despite Plaintiff’s compliance with Mr. 19 Gagon’s advice, Ms. Sullivan “harangued” Plaintiff and “told [him] that he would be disciplined 20 for insubordination if he maintained his refusal to execute the order.” Id. ¶ 16. 21 Ms. Sullivan’s actions caused Plaintiff “extreme stress and anxiety” and “exacerbated 22 [Plaintiff’s] preexisting PTSD and [Plaintiff’s] reliance on medication for his PTSD.” SAC ¶ 17, 23 ECF No. 30. “Ms. Sullivan’s insistence that she would discipline [Plaintiff] if he did not execute 24 an order that he knew violated State and Federal laws and regulations [] triggered the symptoms 25 of [Plaintiff’s] PTSD and . . . interfered with [Plaintiff’s] ability to coordinate with his 26 coworkers.” Id. ¶ 28. Her threats and their interaction with Plaintiff’s PTSD also “hindered 27 [Plaintiff’s] ability to concentrate” and perform the “essential function” of scheduling drivers and 28 deliveries on time and in compliance with the law. Id. ¶ 27. Due to the threats, Plaintiff 2 1 “informed [HDS] that he needed to take a walk [in the warehouse] in order to calm down” and 2 that “Ms. Sullivan’s threats necessitated his temporary removal from the hostile situation.” Id. ¶¶ 3 18-19, 22. Plaintiff was suspended indefinitely from his job later that day. Id. ¶ 12. 4 “Because of the stress the suspension caused him, [Plaintiff] visited his physician’s office 5 and received a note from [the] Nurse Practitioner, Ms. Willerup, prescribing [that] he take a 10- 6 working-day leave of absence . . . ‘in order to adjust to treatment for health concerns.’ [Plaintiff] 7 provided this information to [HDS].” SAC ¶ 31, ECF No. 30. Plaintiff’s request for this medical 8 leave immediately followed his disagreement with Ms. Sullivan. Id. ¶ 24. 9 Plaintiff also told “Mr. Gagon that Ms. Sullivan was threatening him with discipline if he 10 failed to execute the [] order.” SAC ¶ 23, ECF No. 30. Mr. Gagon “knew that permitting Ms. 11 Sullivan to continue [] supervis[ing] [Plaintiff] created the risk that [Plaintiff] would suffer 12 additional injuries.” Id. at ¶ 21. Nonetheless, “Ms. Sullivan continued to supervise [Plaintiff]” 13 throughout and following the January 20th incident. Id. at ¶ 23. 14 After his medical leave, Plaintiff “returned to work on February 9, 2010.” SAC ¶ 33, ECF 15 No. 30. The next day, on February 10, 2010, HDS “summarily terminated [Plaintiff’s] 16 employment.” Id. ¶ 34. The only misconduct that HDS alleged Plaintiff committed involved the 17 January 20th incident. Id. ¶ 23. In terminating Plaintiff, “[HDS] considered Plaintiff’s disability” 18 and “Plaintiff’s . . . refusal to participate in a course of action that would result in a violation of 19 Federal and State laws and regulations.” Id. ¶¶ 42, 43, 52. 20 As a result of the termination, plaintiff alleges that he suffered emotional distress 21 including, but not limited to, anxiety, sleeplessness, nightmares, nervousness, depression, worry, 22 loss of appetite, loss of libido, rapid weight gain, hair loss, headaches, nervous twitching, stress, 23 anger, feelings of hopelessness, feelings of isolation, embarrassment, mental anguish, indignation, 24 apprehension, and feelings of betrayal. See, e.g., SAC ¶¶ 35, 45, 54, 63, 72, 80, 87. 25 B. 26 Relevant Procedural History Plaintiff commenced this action on January 24, 2012 in the Sacramento County Superior 27 Court against defendant-employer HDS. Notice of Removal ¶ 1, ECF No. 1. This matter was 28 removed to this court on March 8, 2012 and is proceeding on a SAC filed September 20, 2012. 3 1 Following Judge Burrell’s order partially granting defendant’s motion to dismiss the SAC, four 2 claims now remain: wrongful termination, disability discrimination, failure to provide reasonable 3 accommodations, and retaliation. 4 On July 2, 2012, Judge Burrell issued a pretrial scheduling order setting forth dates in this 5 matter. Expert disclosures were to be finalized by March 15, 2013, and discovery is to conclude 6 on July 21, 2013. ECF No. 17 at 2. 7 On February 15, 2013, plaintiff identified four non-retained experts by name, address, and 8 telephone number: Elizabeth Willerup, NP; Cherie Coddington, CSW; Brian Dahmen, Ph.D.; and 9 Kim Fuller, Ph.D.2 Gavin Decl. Ex. A, ECF No. 57-2. Plaintiff did not provide the subject 10 matter to which these individuals were expected to testify or a summary of their opinions. 11 Also on February 15, 2013, defendant served its initial expert disclosure list stating that 12 “HDS does not designate any experts at this time. HDS reserves its rights pursuant to FRCP 13 26(a)(2)(B)&(C) to serve a supplemental and/or rebuttal expert designation.” Pl.’s Mot. to 14 Exclude Ex. A, ECF No. 55-1. 15 16 On March 15, 2013, defendant served its rebuttal expert disclosure list identifying a single expert, Dr. Alan Brooker, a neuropsychologist. Pl.’s Mot. Exclude Ex. B, ECF No. 55-2. 17 Though the scheduling order is silent on the issue of supplemental expert disclosures, 18 plaintiff filed a supplemental expert witness list on May 10, 2013 identifying two more experts 19 and stating, as to all now-five expert witnesses, that each was “Plaintiff’s medical provider and 20 has knowledge as to Plaintiff’s medical diagnosis and/or treatment.” HDS Opp’n to Pl.’s Mot. 21 Exclude Bonoli Decl. Ex. L, ECF No. 57-3 at 111-13. On May 10, 2013, Plaintiff identified two 22 additional expert witnesses. 23 Following plaintiff’s initial expert disclosure report, HDS attempted to depose all of the 24 experts, but faced considerable trouble from their employer, the Veteran’s Administration 25 (“VA”), which refused to produce them. After four months of meet and confer efforts and 26 defendant’s filing of a motion to compel and a related motion in limine, the VA ultimately 27 28 2 Kim Fuller was later withdrawn from the list of expert witnesses. 4 1 produced the witnesses with limitations as to deposition time (Ms. Coddington for 0.5 hours, Mr. 2 Dahmen for 1.5 hours, and Ms. Willerup for 2 hours) and scope of testimony (only that which is 3 provided in the medical record). These depositions occurred in June 2013. 4 On June 5, 2013, HDS filed the instant motion to compel an IME of plaintiff by Dr. 5 Brooker.3 Def.’s Mot. Compel IME, ECF No. 48. HDS contends that an IME of plaintiff is 6 necessary because plaintiff alleges that he suffered mental injury as a result of HDS’s alleged 7 wrongful conduct, and an examination by Dr. Brooker, a clinical neuro-psychologist, is necessary 8 in order to properly evaluate the extent of plaintiff’s claimed injuries. Def.’s Mot. Compel IME 9 2, ECF No. 48. 10 Plaintiff opposes this motion on the grounds that his mental condition is not in 11 controversy and that there does not exist good cause to conduct the IME. To the extent the court 12 is inclined to grant defendant’s motion to conduct an IME, plaintiff asks the court to bar Dr. 13 Brooker from conducting it. 14 LEGAL STANDARDS 15 Rule 35 of the Federal Rules of Civil Procedure allows a court, on a motion for good 16 cause, to order a mental examination by a suitably licensed or certified examiner of a party whose 17 mental condition is “in controversy.” Fed. R. Civ. P. 35(a); Schlagenhauf v. Holder, 379 U.S. 18 104, 118 (1964). The requirements “are not met by mere conclusory allegations of the pleadings 19 – nor by mere relevance to the case – but require an affirmative showing by the movant that each 20 condition as to which the examination is sought is really and genuinely in controversy and that 21 good cause exists for ordering each particular examination.” Schlagenhauf, 379 U.S. at 118. 22 23 To establish that a mental condition is “in controversy,” the moving party should demonstrate one or more of the following factors: 24 (1) a cause of action for intentional or negligent infliction of emotional distress; 25 (2) an allegation of a specific mental or psychiatric injury or 26 27 28 3 Also pending before the undersigned is plaintiff’s June 19, 2013 motion to exclude Dr. Brooker as a rebuttal witness. Pl.’s Mot. Exclude Def.’s Rebuttal Witness, ECF No. 55. That motion will be addressed by separate order. 5 1 disorder; 2 (3) a claim of unusually severe emotional distress; 3 (4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 4 (5) plaintiff’s concession that his or her mental condition is “in controversy” within the meaning of Rule 35(a). 5 6 Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995).4 Basic, garden-variety claims of emotional distress do not warrant an IME. Sabree v. 7 8 United Bhd. of Carpenters & Joiners, 126 F.R.D. 422, 426 (D. Mass.1989). However, a medical 9 examination is generally allowed if there are specific facts demonstrating that a party’s emotional 10 state will be at issue. Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296s, 298 (E.D. Pa. 11 1983) (where plaintiff seeks to prove emotional distress and harm through her own testimony and 12 that of psychiatrists, defendant has a right to make a searching inquiry). DISCUSSION 13 14 To succeed on its motion to conduct an IME, defendant must show that plaintiff’s mental 15 condition is in controversy and that there exists good cause for the IME. 16 A. The “In Controversy” Requirement 17 Defendant argues that plaintiff’s mental condition is in controversy in two separate 18 contexts: (1) in relation to plaintiff’s allegation that HDS’s conduct prior to his termination 19 exacerbated plaintiff’s pre-existing PTSD, and (2) in relation to the allegation that HDS’s 20 decision to terminate plaintiff’s employment caused plaintiff emotional distress. In opposition, 21 plaintiff argues that his PTSD is not in controversy and that the emotional distress he alleges is 22 merely garden variety. 1. PTSD 23 24 Defendant argues that the second Turner factor is satisfied because plaintiff accuses 25 defendant of exacerbating his pre-existing PTSD, a “specific mental or psychiatric injury or 26 4 27 28 While Turner is the majority view of district courts, some courts will grant a Rule 35 independent medical examination whenever a plaintiff seeks compensatory damages for the emotional pain they claim to have suffered as a result of a defendant’s actions. See e.g., Nuskey v. Lambright, 251 F.R.D. 3, 6-7 (D.C.C. 2008). 6 1 disorder.” Defendant refers to plaintiff’s allegations that Ms. Sullivan’s conduct caused plaintiff 2 “extreme stress and anxiety” that “hindered his ability to concentrate” causing an “exacerbat[ion 3 of] plaintiff’s pre-existing PTSD and plaintiff’s reliance on medication for his PTSD.” Further as 4 a result of Ms. Sullivan’s conduct, plaintiff was forced to “temporar[ily] remov[e] himself from 5 the hostile situation,” and later to take a 10-day leave of absence. 6 Plaintiff counters that the fact that he suffered from PTSD before he was hired by HDS as 7 well as during the period of his employment is not disputed. Insofar as defendant submits that the 8 PTSD is in controversy because plaintiff claims HDS’s conduct exacerbated the PTSD, plaintiff 9 asserts that this exacerbation is irrelevant to his claims. Plaintiff’s point is well-taken. Defendant 10 has not shown how the exacerbation of plaintiff’s PTSD – as opposed to the mere fact that 11 plaintiff had PTSD – is relevant to any plaintiff’s claims (wrongful termination, disability 12 discrimination, failure to provide reasonable accommodations, and retaliation). Furthermore, 13 none of the remaining Turner factors are applicable to plaintiff’s PTSD. Turner’s first and fifth 14 factors clearly do not apply because plaintiff does not have a cause of action for intentional or 15 negligent infliction of emotional distress and because he has not conceded that his PTSD is in 16 controversy. As to those Turner factors that address emotional distress, they will be discussed 17 infra. Accordingly, the court finds that plaintiff’s PTSD is not in controversy. 18 2. Emotional Distress 19 Although Rule 35 “is to be construed liberally in favor of granting discovery,” “garden- 20 variety” emotional distress is insufficient to put plaintiff’s mental state in controversy. Turner, 21 161 F.R.D. at 96; see also Schlagenhauf, 379 U.S. at 118. “One district court has characterized 22 garden-variety claims for emotional distress as ‘claims of generalized insult, hurt feelings, and 23 lingering resentment’ that ‘do not involve a significant disruption of the plaintiff’s work life and 24 rarely involve more than a temporary disruption of the claimant's personal life.’” Ortiz v. Potter, 25 2010 WL 796960, at *3 (E.D. Cal. Mar. 5, 2010) (quoting Javeed v. Covenant Medical Center 26 Inc., 218 F.R.D. 178, 179 (N.D. Iowa, Apr. 3, 2001). Another district court distinguished a 27 garden-variety claim of emotional distress from “a claim of psychic injury or psychiatric 28 disorder.” Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 668 (S.D. Cal. Jan. 10, 2001) 7 1 (quoting Sabree v. United Broth. of Carpenters & Joinders of America, Local No. 33, 126 F.R.D. 2 422, 426 (D. Mass. June 8, 1989). 3 In this case, plaintiff has alleged the following symptoms of emotional distress as a result 4 of his termination: anxiety, sleeplessness, nightmares, nervousness, depression, worry, loss of 5 appetite, loss of libido, rapid weight gain, hair loss, headaches, nervous twitching, stress, anger, 6 feelings of hopelessness, feelings of isolation, embarrassment, mental anguish, indignation, 7 apprehension, and feelings of betrayal. 8 While “there is no doubt that the ordinary person would suffer temporary distress if he 9 were unlawfully terminated from employment he otherwise desired to retain,” Rund v. Charter 10 Communications, Inc., 2007 WL 312037, at *2 (E.D. Cal. Jan. 30, 2007), plaintiff’s emotional 11 distress in this case surpasses garden-variety and appears unusually severe. See Ortiz, 2010 WL 12 796960, at *4 (in a wrongful termination and disability discrimination case, the court found that 13 plaintiff’s emotional distress was unusually severe where she experienced damage to her teeth 14 due to clenching of her jaw, depression, anxiety, high blood pressure, migraine headaches, chest 15 pains, trouble sleeping, crying spells, and feelings of humiliation, degradation, powerlessness, 16 helplessness, frustration, anger, depression and anxiety); Simon v. Bellsouth Adver. & Publ’g 17 Corp., 2010 WL 1418322, at *3 (W.D.N.C. Apr. 1, 2010) (in a wrongful termination case, the 18 court found that an emotional distress claim that resulted in physical manifestations can be fairly 19 categorized as unusually severe emotional distress under Turner); Schaadt v. St. Jude Med. S.C., 20 Inc., 2006 WL 7090866, at *3 (D. Minn. Apr. 4, 2006) (in a gender discrimination and breach of 21 contract case, the court found that plaintiff had unusually severe emotional distress by specifying 22 injuries such as weight loss, difficulty sleeping, frequent nightmares, acne, fatigue, feeling or 23 worthlessness, loss of self-confidence, social withdrawal, and loss of hope). The court therefore 24 finds that plaintiff’s mental condition is in controversy in relation to emotional distress. That 25 does not end the inquiry, however. 26 B. 27 28 The Good Cause Requirement The court now turns to the question whether defendant has shown good cause to conduct the IME. To establish “good cause,” the moving party generally must offer specific facts 8 1 showing the examination is necessary and relevant to the case. See Gavin v. Hilton Worldwide, 2 Inc., 2013 WL 1402350, at *3 (N.D. Cal. Apr. 5, 2013); Raggae v. MCA / Universal Studios, 165 3 F.R.D. 605, 609 (C.D. Cal. 1995). Factors considered in assessing whether “good cause” exists 4 include, but are not limited to: (1) “the possibility of obtaining desired information by other 5 means;” (2) “whether plaintiff plans to prove her claim through testimony of expert witnesses;” 6 (3) “whether the desired materials are relevant;” and (4) “whether plaintiff is claiming ongoing 7 emotional distress.” Juarez, at *1 (quoting Impey v. Office Depot, Inc., 2010 2985071, at *21 8 (N.D. Cal. July 27, 2010). 9 Regardless of whether the “good cause” requirement is met, it is within the court’s 10 discretion to determine whether to order an examination. See Williams v. Troehler, 2010 WL 11 121104, at *4 (E.D. Cal. Jan. 7, 2010) (“even if good cause is shown, it is still within the court's 12 discretion to determine whether to order an examination.”); Kob v. County of Marin, 2009 WL 13 3706820, at *3 (N.D. Cal. Nov. 3, 2009) (since the defendant failed to show good cause, “it 14 remained within the court’s discretion whether to grant the Rule 35(a) order.”); Hodges v. Keane, 15 145 F.R.D. 332, 334 (S.D.N.Y. Jan. 6, 1993) (since defendant does not allege ongoing suffering, 16 “a Rule 35(a) order lies soundly within the court’s discretion.”). 17 The court finds that HDS has not demonstrated good cause to conduct an IME. HDS 18 contends that good cause exists because: (1) one of plaintiff’s three experts, Ms. Coddington, did 19 not have any knowledge of plaintiff’s PTSD; (2) HDS could not finish the deposition of 20 plaintiff’s other expert, Mr. Dahmen, before the time limit imposed by the VA; (3) plaintiff 21 identified two new experts on May 10, 2013 and has not yet produced them for deposition; (4) 22 HDS has been unable to view plaintiff’s full medical file because plaintiff’s complete medical 23 bills were not included; and (5) plaintiff has not agreed to an IME. For these reasons, HDS 24 argues that it is unable to discover relevant information pertaining to plaintiff’s treatment and 25 medical condition. 26 HDS’s asserted bases for good cause are unpersuasive. Initially, that Ms. Coddington was 27 unable inability to testify to Plaintiff’s PTSD does not trigger a need for an IME. Additionally, 28 while Mr. Dahmen’s deposition was limited in time, HDS claimed that they needed only an 9 1 additional twenty to thirty minutes. As plaintiff convincingly argues, “an additional 20-30 2 minutes of deposition is not fungible for an entire mental examination, especially where [HDS] 3 has made no showing that the additional 20-30 minutes would have focused on plaintiff’s 4 ‘claimed mental and emotional injuries.’” As plaintiff also argues, HDS has not attempted to 5 depose plaintiff’s two supplemental experts who were disclosed on May 10, 2013, before any 6 other experts’ depositions were scheduled. Moreover, defendant has not shown how or why the 7 lack of medical bills would have any bearing on the need for an IME. Finally, to the extent 8 plaintiff intends to submit expert testimony on the question of either his PTSD and/or emotional 9 distress, the VA has expressly limited that testimony to information contained in the medical 10 11 record, which HDS has in its possession. Accordingly, IT IS HEREBY ORDERED that defendant’s June 5, 2013 motion to compel 12 an IME of plaintiff (ECF No. 48) is denied. 13 DATED: July 19, 2013 14 15 ___________________________________ ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 /mb;robi0604.disc.ime 21 22 23 24 25 26 27 28 10

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