Varfolomeeva v. United States of America

Filing 22

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/6/2017 DIRECTING plaintiff to submit to a Rule 35 mental examination by defendant's suitably licensed expert. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALINA VARFOLOMEEVA,

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Plaintiff,

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No. 2:17-cv-00599-CKD

v.

ORDER

UNITED STATES OF AMERICA,

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Defendant.

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On November 16, 2017, the parties requested an informal conference call regarding a

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discovery dispute. (ECF No. 19.) Defendant seeks an order compelling plaintiff to undergo a

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mental examination pursuant to Federal Rule of Civil Procedure 35, and plaintiff asserts that such

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examination is not warranted. (ECF No. 20.) The parties submitted a joint briefing and an

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informal conference call was held on December 5, 2017. (ECF Nos. 20, 21.) Kirill Tarasenko

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appeared via telephone for plaintiff and Joseph Frueh appeared via telephone for defendant.

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Upon review of the briefing in support and opposition, upon hearing the arguments of counsel,

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and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

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I.

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BACKGROUND
Plaintiff brings this case pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

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1346(b), 2671–2680 et seq., related to the alleged negligence of a government employee who

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allegedly failed to yield his motor vehicle to pedestrians in a cross walk and struck plaintiff who
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was walking in the cross walk. (ECF No 1 at 2–3.) Plaintiff seeks general and special damages

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from defendant for the injuries she sustained as a result of this incident. (See Id. 1 at 7–8.)

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In her prayer for relief, plaintiff specifically references Annex B, which includes her

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FTCA Claim for Damage, Injury, or Death. (Id. at 9.) In that claim, plaintiff asserts that, as a

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result of this collision, she suffered depression and post-traumatic stress disorder, among other

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injuries. (Id. at 20.) Moreover, in her FTCA Demand for Settlement, which is attached to the

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complaint as Annex C, plaintiff further elaborates that

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as a result of the subject collision. . . . [s]he developed multiple
neurological problems, and lost significant quality of life. . . Ms.
Varfolomeeva continues to suffer from . . . anxiety, depression,
occasional suicidal ideations, and post-traumatic stress disorder.

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Dr. Ehyai . . . prescribed Cymbalta to help with her depression. . . .
Prior to the collision Ms. Varfolomeeva was very active for her age.
. . . Since the collision, Dr. Ehyai noted that she had difficulty
moving around at all, due to her knee condition. . . . Dr. Ehyai
additionally noted that she was experiencing phobia of walking on
the street and of cars, and was experiencing memory loss and loss
of concentration.

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...

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The injuries Ms. Varfolomeeva suffered as a result of Mr. Frye’s
negligent driving have irrep[a]rably altered her life. . . . She has
been diagnosed with post-traumatic stress disorder, depression, and
memory loss.

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(ECF No. 1 at 29–31.)

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Then, in response to defendant’s interrogatories, plaintiff confirmed ongoing anxiety,

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depression, fear, decreased enjoyment of life, and decreased will to live. (ECF No. 20 at 1.)

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Plaintiff also identified two treating neurologists as witnesses. (Id.) Additionally, during her

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deposition, plaintiff testified that her “whole life is just ruined”; she has “lost interest for life”;

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“[t]here’s something wrong with [her] head”; and her outlook on life has changed in that she

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“used to be a queen” but now believes she is “nothing,” “a nobody.” (Id.)

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Thereafter, defendant sought a mental examination pursuant to Federal Rule of Civil

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Procedure 35. Plaintiff has resisted such an examination, asserting that she only seeks “garden-

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variety” pain and suffering damages that will not require the testimony of a psychiatrist.

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II.

LEGAL STANDARD

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Under Federal Rule of Civil Procedure 35, the court “may order a party whose mental or

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physical condition—including blood group—is in controversy to submit to a physical or mental

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examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35.
One of the purposes of Rule 35 is to “level the playing field”
between parties in cases in which a party’s physical or mental
condition is in issue. “[G]ranting a request for a psychiatric
examination pursuant to Rule 35 is to preserve [ ] the equal footing
of the parties to evaluate the plaintiff's mental state. . . .” Tomlin v.
Holecek, 150 F.R.D. 628, 633 (D.Minn.1993). A plaintiff has
ample opportunity for psychiatric or mental examination by his/her
own practitioner or forensic expert. “Only if no additional relevant
information could be gained by an examination of [plaintiff] should
the motion for a psychiatric examination be denied.” Duncan v.
Upjohn Co., 155 F.R.D. 23, 25 (D.Conn.1994).

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Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995).
Before the court may order a Rule 35 mental examination, “first, the physical or mental

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condition of the party must be ‘in controversy’; and second, ‘good cause’ for the examination

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must be established.” Ragge, 165 F.R.D. at 608 (citing Schlagenhauf v. Holder, 379 U.S. 104,

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117–20 (1964)).

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III.

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DISCUSSION
Here, plaintiff has placed her mental condition in controversy with her complaint. She

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seeks damages related to the injuries she alleges plaintiff’s employee caused, and she clearly

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identifies mental conditions among those injuries, including: depression, post-traumatic stress

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disorder, anxiety, suicidal ideation, and a phobia of walking on the street. (ECF No. 1 at 29–31.)

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By claiming that such mental conditions were caused by the underlying event, plaintiff has placed

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her mental condition in controversy.

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In order to avoid a mental examination, plaintiff now wishes to stipulate that she is not

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seeking any damages related to her mental condition, but rather only seeking “garden-variety”

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pain and suffering damages. (ECF No. 20 at 2.) However, plaintiff’s position is belied by her

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complaint, and the answers she provided at her deposition and in response to interrogatories. She

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has indicated that she continues to suffer from anxiety, depression, and fear, and that she has lost

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interest in life and believes that there is something wrong with her head. (ECF No. 20 at 1.) As a
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result, plaintiff’s mental condition remains in controversy, notwithstanding plaintiff’s assertion

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that she only seeks “garden-variety” damages.

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In addition, good cause exists for defendant’s request to subject plaintiff to a mental

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examination. Because plaintiff’s mental condition is in controversy and will be considered in any

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calculation of her pain and suffering damages, defendant has a right to gather expert evidence

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regarding the validity and extent of plaintiff’s mental injuries.

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For the foregoing reasons IT IS HEREBY ORDERED that:

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1. Plaintiff shall submit to a Rule 35 mental examination by defendant’s suitably licensed

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expert.
Dated: December 6, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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14/varfolomeeva.17-599.rule 35 order

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