Wagnon, et al v Rocklin Unified School District, et al

Filing 47

ORDER signed by Magistrate Judge Kendall J. Newman on 08/30/22 GRANTING 39 Motion to Compel(Licea Chavez, V)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALICIA WAGNON, et al.,

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Plaintiffs,

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v.
ROCKLIN U.S.D., et al.,

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No. 2:17–cv–1666–KJN
ORDER ON DEFENDANT’S MOTION TO
COMPEL IME
(ECF No. 39.)

Defendants.

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Presently before the court is defendants’ motion to compel an independent medical

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examination under Federal Rule of Civil Procedure 35. 1 (ECF No. 39.) Defendants contend

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plaintiff From has put his mental condition at issue by claiming damages for the emotional,

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educational, and psychological injuries caused by defendants, and good cause exists for the IME.

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Plaintiffs do not appear to dispute that From’s mental condition is at issue, but instead cite a

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number of reasons why good cause is lacking, including the remoteness of the exam, the proposed

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locations, the lack of qualifications of the expert, and the availability of the information from

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other sources. (ECF No. 45.)
For the reasons stated at the hearing on August 30, 2022, the court GRANTS defendants’

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motion and sets certain conditions for the exam, as described below.
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This case proceeds before the undersigned on the consent of all parties to the jurisdiction of a
magistrate judge per 28 U.S.C. § 636(c)(1). (See ECF Nos. 23, 24.)
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Background

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Plaintiffs allege that in 2016, a Rocklin U.S.D. bus driver created a hostile environment

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that resulted in bruising and emotional regression in plaintiff From’s education and mental health.

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Plaintiffs raise claims under 42 U.S.C. § 1983, the Americans with Disabilities Act, the

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Rehabilitation Act, and California law (Battery, Negligence, Negligent Supervision, Unruh and

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Bane Acts). Damages alleged include emotional distress, pain and suffering, and medical

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expenses. Plaintiff From has significant intellectual and physical disabilities, so his mother Alice

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Wagnon acts as his conservator for this suit. (See ECF No. 1.)

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Plaintiffs filed this case in 2017, and between 2017-2021, the court considered two rounds

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of defendants’ motions to dismiss before defendants filed an answer. (See ECF No. 23.)

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Thereafter, the parties consented to the jurisdiction of a magistrate judge for all purposes and the

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case was reassigned. (ECF No. 24.) The undersigned entered a scheduling order setting the close

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of fact discovery for September 2, 2022, expert discovery for December 16, 2022, and law and

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motion for March 16, 2023. (ECF No. 28.)

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During the course of discovery, plaintiff Wagnon’s responses to certain interrogatories

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identified 17 symptoms she said began after the bus driver’s alleged actions, and a 2017 report

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from plaintiffs’ psychological expert Dr. Baladerian cites these symptoms in her analysis. (See

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ECF No. 39; see also ECF No. 41 at Ex. A and B and sealed event at ECF No. 44.) Based on

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these facts, defendants seek permission for their expert, psychiatrist Dr. Greene, to conduct an

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independent medical examination of From. (ECF No. 39.) Plaintiffs opposed, and the matter was

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set for an August 30, 2022 hearing before the undersigned. (Id.)

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Legal Standards

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Fed. R. Civ. P. 35 grants a party the ability to have a physical or mental examination

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conducted by a “suitably licensed or certified examiner” on “a party whose mental or physical

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condition . . . is in controversy.” “This means, for example, ‘that a parent or guardian suing to

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recover for injuries to a minor may be ordered to produce the minor for examination.’” Sali v.

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Corona Regional Medical Center, 884 F.3d 1218, 1223 (9th Cir. 2018), quoting FRCP 35 advisory

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committee's note to 1970 amendment. Courts often order plaintiffs claiming emotional distress
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damages to undergo an IME when one or more of the following factors exist: “(1) the complaint

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includes a claim for intentional or negligent infliction of emotional distress; (2) the plaintiff

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alleges a specific mental or psychiatric injury or disorder; (3) the plaintiff claims unusually severe

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emotional distress; (4) plaintiff offers expert testimony to support the claim of emotional distress;

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or (5) the plaintiff concedes that her mental condition is ‘in controversy’ for purposes of Rule

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35.” J.M. v. County of Stanislaus, 2019 WL 6879676 at *8, (E.D. Cal. Dec. 17, 2019).

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The exam must happen by court order on good cause. Fed. R. Civ. P. 35(a)(2)(A). “Good

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cause” factors that courts have considered include the possibility of obtaining desired information

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by other means, whether plaintiff plans to prove his claim through testimony of expert witnesses,

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whether the desired materials are relevant, and whether plaintiff is claiming ongoing emotional

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distress. Halliday v. Spjute, 2015 WL 3988903, *2 (E.D. Cal. June 30, 2015 AWI-GSA) (citing

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Turner v. Imperial Stores, 161 F.R.D. 89, 97-98 (S.D. Cal. 1995) (expert testimony); Ragge v.

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MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995) (ongoing emotional distress);

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Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964) (availability by other means).

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If an examination is ordered, Rule 35 requires the court order “specify the time, place,

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manner, conditions, and scope of the examination, as well as the person or persons who will

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perform it.” “Courts have discretion in setting appropriate conditions for a physical or mental

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examination depending on the facts and circumstances of each case.” Newman v. San Joaquin

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Delta Community College District, 272 F.R.D. 505, 511 (E.D. Cal. Feb. 15, 2011).

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Parties’ Arguments

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At its core, defendants contend Dr. Greene should be allowed to conduct the IME in order

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to level the playing field. Defendants note that the complaint places From’s mental state at issue,

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good cause exists for the exam, and they are willing to stipulate to certain protections for

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plaintiffs so as not to traumatize Mr. From. Defendants argue that without a counter expert they

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will be unfairly prejudiced, as plaintiffs can present Dr. Balderian’s testimony, but defendants

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would have no similar support for their defenses. (ECF No. 39.)

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Plaintiffs contend good cause is lacking, noting From is now 24 years old, is non-verbal,
cannot read or write, and has the cognitive abilities of an 18 month to 2-year-old child. Plaintiffs
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argue that because From’s symptoms have mostly resolved given the amount of time that has

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passed, because of From’s limited cognitive abilities, and because he is no longer in the same

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routine as he was back in 2017, it is unlikely Dr. Greene’s exam will yield any fruitful

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information. Plaintiffs also challenge whether Dr. Greene is qualified, that despite his

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“impressive resume,” noting he has no experience working with individuals with significant

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cognitive abilities who are also non-verbal. Finally, plaintiffs contend there are other avenues for

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defendants to obtain the information they seek, including examining the numerous documents

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already in possession by the school district (IEP plans, health records, and the like), the

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information gleaned from defendants’ deposition of Wagnon, and any interviews defendants

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could conduct with their own employees. Thus, plaintiffs contend that “given the unique

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circumstances,” no good cause exists for the court to order the IME. (See ECF No. 45.)

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Analysis – At Issue and Good Cause

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At the outset, the court finds plaintiffs have put From’s mental state at issue, given the fact

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that they plan to produce their expert Dr. Balderian to support their damages claim and given

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plaintiffs appear to concede this point. See, e.g., J.M., 2019 WL 6879676 at *8. Turning to good

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cause, the court is sensitive to plaintiffs’ arguments, but on the whole agrees with defendants’

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contentions and finds good cause for the IME.

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Plaintiffs’ main concern appears to concern the fruitfulness of any exam. As discussed at

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the hearing, the court is well aware of the potential that Dr. Greene may not uncover any lasting

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emotional trauma, given that 6 years have passed since the alleged incident. However, plaintiff

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Wagnon does not specifically state that From’s trauma has completely resolved, but instead states

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the symptoms “appear to have resolved after approximately 3 years with occasional flareups still

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continuing.” (See ECF No. 44, Ex. A, *8 (emphasis added).) Wagnon also recognizes that From

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has not been asked or required to face defendant since the incident. Thus, it is possible Dr.

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Greene’s exam may yield few results, or possible that when reexamined, From may experience a

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flareup. Either outcome affects the case, and so defendants should be allowed to probe this area

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via their expert’s examination. See, e.g., Hill v. Fairfield Police Department, 2017 WL 1198510

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at *2 (E.D. Cal. Mar 31, 2017) (“Plaintiff here appears to have had multiple pre-existing mental
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conditions. Even if plaintiff only claims that his PTSD was aggravated by the incident,

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defendants are entitled to explore plaintiff’s psychiatric condition to determine whether the

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alleged aggravated symptoms are truly attributable to the incident and PTSD, or whether there are

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other unrelated causes for such alleged symptoms.”).

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Beyond this fact, the court notes other issues supporting a finding of good cause. First, it

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would unduly hamper defendants’ defense of their case if plaintiffs were allowed to offer their

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own expert’s testimony but defendants be disallowed a potentially-competing report. See, e.g.,

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Nguyen v. Qualcomm Inc., 2013 WL 3353840, at *7 (S.D.Cal. July 3, 2013) (“A defendant

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should have a balanced opportunity to assess the plaintiff's allegations and proof concerning

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emotional distress damages, and a plaintiff's chosen expert should not be the only expert who ever

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actually examined the plaintiff.”). Second, the court agrees that defendants’ expert should be

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required to study up on From’s history by examining the universe of available discovery,

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including from plaintiff Wagnon’s deposition. However, this should not act as a bar to

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defendants, given that the scope of Dr. Greene’s questioning will delve into issues beyond what

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may be available in the documents. See, e.g., Franco v. Boston Scientific Corp., 2006 WL

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3065580, at *2 (N.D. Cal. Oct. 27, 2006) (declining to limit the scope of questioning where the

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examinee’s history was lengthy and predated the alleged events). Third, defendants’ time has yet

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to run out with discovery matters, given discovery is still open. (See ECF No. 28.) Fourth, while

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Dr. Greene’s lack of experience working with younger, non-verbal patients may be a fruitful

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avenue for attack at a Daubert hearing or on cross-examination before the jury, his resume shows

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he is a qualified, licensed professional for purposes of defendants’ Rule 35 motion. See, e.g.,

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Newman, 272 F.R.D. 505 (finding defendant’s proposed examiner was qualified under the Rules

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despite plaintiff’s attack on the doctor’s lack of specific specialty, given the doctor was a licensed

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psychologist with significant experience). Thus, these concerns of plaintiffs do not affect the

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court’s finding of good cause.

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Scope of the Exam

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In addition to findings on the ‘at issue’ and ‘good cause’ prongs, Rule 35 requires the

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court order to “specify the time, place, manner, conditions, and scope of the examination, as well
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as the person or persons who will perform it.”
As to the date and length of the exam, counsel for the parties agreed to confer after

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discussion with plaintiff Wagnon and Dr. Greene. When the parties have agreed on these (and

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any other) parameters, they shall submit a stipulation and proposed order to the court for

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signature.

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Defendants have agreed to be flexible on the location, and after discussion with the
parties, it appears the best place to conduct the exam will be at plaintiffs’ home.

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The court will not set limitations on the kinds of tests Dr. Greene will be allowed to

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conduct. See, e.g., Newman, 272 F.R.D. 505 (declining to limit the kinds of tests proposed

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without evidence that certain tests will be dangerous to the examinee). Further, no specific limits

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are set on Dr. Greene’s questioning of Wagnon concerning From’s history. However, defendants

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are cautioned that Dr. Greene’s exam shall not be harassing to plaintiffs and shall not act as a

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second deposition. Thus, to the extent Dr. Greene can conduct any investigation of From’s

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history prior to the exam, so as to lessen the burden on Wagnon, the doctor shall do so.

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Finally, defendants had previously stipulated to allowing Wagnon to terminate Dr.

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Greene’s exam if at any time she feels, in good faith, that the exam is overly traumatizing to her

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son. Counsel for plaintiff shall review this good faith standard with Wagnon before the exam and

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shall make her aware that if the exam is ended early, it will be rescheduled for a future date.

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However, if the exam is prematurely terminated, it will be probably rescheduled to continue on a

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future date. The court will endeavor to make itself available the day of the exam, should any

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good faith disputes arise requiring court intervention.

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ORDER

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It is HEREBY ORDERED that defendants’ motion to conduct an independent medical

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exam of plaintiff From (ECF No. 39) is GRANTED on the conditions outlined in this order.

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Dated: August 30, 2022

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wagn.1666

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