Moore et al v. Gilead Sciences, Inc. et al

Filing 122

ORDER RE: INDEPENDENT PSYCHIATRIC EXAMINATION OF PLAINTIFF (Illston, Susan) (Filed on 12/23/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID MOORE,

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United States District Court
For the Northern District of California

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No. C 07-03850 SI

Plaintiff,

ORDER RE: INDEPENDENT
PSYCHIATRIC EXAMINATION OF
PLAINTIFF

v.
GILEAD SCIENCES, INC.,
Defendant.

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On December 7, 2011, defendant Gilead Sciences, Inc. (“Gilead”) filed a discovery dispute with

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the Court regarding an independent psychiatric examination of plaintiff David Moore. In it, Gilead

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states that Moore recently identified a neuropsychiatrist whom he plans to call at trial “regarding issues

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of damages including, but not limited to, plaintiff’s neuropsychological assessment, emotional distress,

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pain and suffering, and psychological and/or psychiatric injury suffered by Plaintiff based on the events

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of this case and Plaintiff’s medical history.” Doc. 118, Ex. A, at 2. In response, Gilead is requesting

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the Court to compel Moore to submit to an independent mental examination by a forensic psychiatrist

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pursuant to Fed. R. Civ. P. 35 (“Rule 35"). Moore filed an opposition to Gilead’s request on December

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20, 2011. Moore argues that Gilead has not provided sufficient detail about its proposed examination

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for the Court to fulfill the requirements of any Rule 35 order, and, furthermore, that fact discovery has

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closed and defendant has not provided any argument that a mental exam would be expert discovery

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subject to a different deadline than fact discovery.

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The Court finds that Gilead has made a sufficient showing of good cause as required by Rule

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35(a)(2)(A) to order an independent mental exam of Moore. However, Moore is correct that a Rule 35

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order “must specify the time, place, manner, conditions, and scope of the examination, as well as the

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person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(B). Gilead has not provided the Court

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with sufficient information about the proposed exam to satisfy these requirements. The parties are

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therefore ORDERED to meet and confer to discuss the specifics of the mental exam. If the parties fail

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to agree on those specifics, they may submit their dispute to the Court.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: December 23, 2011
SUSAN ILLSTON
United States District Judge

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