Guidry et al v. U.S. Department of the Interior et al

Filing 139

ORDER RE: RULE 35 MENTAL EXAMINATION. Signed by Magistrate Judge Jacqueline Scott Corley on 12/4/2014. (ahm, COURT STAFF) (Filed on 12/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN SCOTT GUIDRY, et al.,

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Case No. 12-cv-05639-JSC

Plaintiffs,
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v.

ORDER RE: RULE 35 MENTAL
EXAMINATION

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GOLDEN GATE NATIONAL PARKS
CONSERVANCY, et al.,

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Defendants.

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United States District Court
Northern District of California

Re: Dkt. No. 131

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Plaintiffs Brian Scott Guidry and Peggy Kuykendall bring this action against Defendants

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Golden Gate National Parks Conservancy and Alcatraz Cruises, LLC, for injuries the Plaintiffs

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suffered while riding a tram on Alcatraz Island. Now pending before the Court is the parties’ joint

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statement to resolve a discovery dispute regarding whether the Court should compel Guidry to

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submit to a psychiatric evaluation, as Defendants request. (Dkt. Nos. 131, 132.) Plaintiffs assert

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that any such evaluation is unreasonably duplicative and harassing given that Guidry has already

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undergone a separate evaluation by a neuropsychologist who looked into Guidry’s emotional state.

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(Dkt. No. 131 at 5.) After carefully considering the parties’ submissions, and having had the

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benefit of oral argument on December 4, 2014, the Court GRANTS Defendants’ request and

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compels Guidry to undergo a four-hour psychiatric evaluation.

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Federal Rule of Civil Procedure 35(a) gives a court authority to order one party to comply

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with the other’s legitimate discovery request to submit to a mental examination by a licensed

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examiner. Fed. R. Civ. P. 35(a). The party requesting the mental examination must demonstrate

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that (1) the physical or mental condition of the party is “in controversy” and (2) “good cause” for

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the examination exists. Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608 (C.D. Cal. 1995).1

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Plaintiff cites cases from California state court and implies that the Court should apply California
law given that only state law claims remain. (See Dkt. No. 131 at 7.) However, “[i]t is axiomatic

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“A mental condition is ‘in controversy’ when it is itself the subject of the litigation.” Gavin v.

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Hilton Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. Apr. 5, 2013). “‘Good cause’ for a

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mental examination requires a showing that the examination could adduce specific facts relevant

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to the cause of action and necessary to the defendant’s case.” Ragge, 165 F.R.D. at 609.

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Rule 35 imposes no limit on the number of examinations, but “[e]ach request for an

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independent medical examination must turn on its own facts, and the number of examinations to

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which a party may be subjected depends solely upon the circumstances of the underlying request.”

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Alhozbur v. McHugh, No. C09-01576 JW (HRL), 2010 WL 3504724, at *1 (N.D. Cal. Sept. 8,

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2010) (quoting Peters v. Nelson, 153 F.R.D. 635, 637 (N.D. Iowa 1994)). When the plaintiff has
already undergone an initial examination and a party requests a subsequent examination, in

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United States District Court
Northern District of California

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determining whether to order the second exam the court considers whether a significant period of

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time has elapsed since the last evaluation and whether the subsequent examiner provides

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additional expertise in a different but relevant discipline. See, e.g., Edson v. Liberty Mut. Ins. Co.,

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No. C-01-3128 SBA (EMC), 2002 WL 31946902, at *2 (N.D. Cal. 2002). At bottom, it remains

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“within the broad discretion of the district court to determine whether a party must submit to

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examination.” Lester v. Mineta, No. C 04-03074, 2006 WL 3741949, at *1 (N.D. Cal. Dec. 19,

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2006) (citation omitted).

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Here, Plaintiffs concede that Guidry’s mental condition is “in controversy” for the

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purposes of Rule 35. See Tan v. City & Cnty. of San Francisco, No. C 08-01564 MEJ, 2009 WL

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594238, at *1 (N.D. Cal. Mar. 4, 2009) (noting that courts will order plaintiffs to undergo an

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independent medical examination when the plaintiff concedes that her mental condition is in

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controversy). Plaintiffs also have conceded that there is good cause for both a neuropsychological

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and neurological evaluation; Dr. Howard Friedman already has conducted an eight hour

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neuropsychological examination and produced a 20-page report (see Dkt. No. 132-1), and Guidry

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apparently has consented to undergo a neurological examination to assess the physiological

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that federal courts follow federal procedural law, regardless of the . . . substantive law at issue[,]”
and “discovery is a procedural matter governed by federal law.” Balarezo v. Nth Connect
Telecom, Inc., No. C 07-5243 JF (PVT), 2008 WL 2705095, at *1 n.3 (N.D. Cal. July 8, 2008).
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impacts of his injury (see Dkt. No. 136 ¶ 1). Thus, this narrow dispute focuses only on whether a

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psychiatric evaluation is necessary to evaluate Guidry’s emotional status, as Defendants contend.
From Defendants’ perspective, the psychiatric evaluation they currently seek is distinct

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from the neuropsychology examination that Guidry already underwent and is necessary to

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understand the nature and extent of Plaintiffs’ claims for damages. (Id. at 2.) In support of their

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request, Defendants submit a declaration of Bernard S. Rappaport, M.D., the psychiatrist retained

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to complete Guidry’s examination. (Dkt. No. 131-4.) According to Dr. Rappaport, while

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neuropsychology focuses on “impairment to cognitive function, which involves empirical testing

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of a patient’s behavioral tendencies and intellectual capabilities and limitations[,]” psychiatry

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explores “changes to a brain injury patient’s emotional state as a result of the injury[,]” which

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United States District Court
Northern District of California

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includes “examination of the patient’s emotional and psychiatric history, and present psychiatric

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state, treatment, and prognosis[.]” (Dkt. No. 131-4 ¶ 4.) Dr. Rappaport avers that only a

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psychiatrist can properly examine emotional and psychiatric issues, whereas a psychologist

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reviews cognitive and behavioral problems, and that common practice in brain injury cases is to

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have separate evaluations by experts in each field; thus, a psychiatrist is required to review

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Guidry’s emotional state, and that such an evaluation not duplicate any testing that the

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neuropsychologist already completed. (Id. ¶ 5.) Based on Dr. Rappaport’s declaration,

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Defendants contend that there is good cause to order a psychiatric evaluation. (Dkt. No. 131 at 3-

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4.)

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Plaintiffs, for their part, assert that there is no good cause for a psychiatric evaluation

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because the neuropsychologist already assessed Guidry’s emotional status. (Dkt. No. 131 at 5;

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Dkt. No. 136 at 136.) In support of their opposition to Defendants’ request, Plaintiffs submit the

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declaration of psychiatrist Zachary D. Torry, M.D., who opines that any psychiatric evaluation

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would be duplicative of Dr. Friedman’s completed neuropsychological examination. (Dkt. No.

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136 at 3-5.) From Dr. Torry’s perspective, the mental anguish that Guidry likely will endure if

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forced to undergo another evaluation far outweighs its limited, duplicative value. (Id. ¶¶ 3-4.)

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Plaintiffs also expressed concern about Guidry taking more time off from work for the additional

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examination.
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Courts in this District regularly find good cause to order plaintiffs seeking damages for
brain injuries to undergo all three types of examinations—neuropsychological, neurological, and

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psychiatric—given the differences between the three fields. See, e.g., Nicholas v. United Air

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Lines, Inc., No. C09-02089 RS (HRL), 2010 WL 1759459, at *1-2 (N.D. Cal. Apr. 29, 2010); Ayat

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v. Societe Air France, No. C 06-1574 JSW (JL), 2007 WL 1120358, at *6-7 (N.D. Cal. Apr. 16,

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2007); Lester, 2006 WL 3741949, at *2. So it is here: based on the nature of Guidry’s claims,

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which allege brain injury resulting in physical pain and emotional distress as a result of

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Defendants’ negligence, the Court concludes that Defendants are entitled to compel Guidry to

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undergo a psychiatric examination separate and apart from evaluations in neuropsychology and

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neurology. The Court agrees with Defendants that neuropsychology and psychiatry are different

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United States District Court
Northern District of California

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disciplines that assess different problems. Thus, although Dr. Friedman’s neuropsychological

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report touched on Guidry’s emotional condition in the context of his neuropsychological

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evaluation—indeed, its very purpose was “to determine current cognitive and emotional

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functioning” regarding Guidry’s claim of injury (Dkt. No. 132-1 at 2)—it did so from the

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perspective of a neuropsychologist looking into Guidry’s cognitive state, not a psychiatrist

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assessing mental illness and medications treating such conditions. As a result, a separate

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psychiatric examination is appropriate. Finally, Plaintiff’s argument that a psychiatric

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examination is unwarranted given the “mental anguish” that further evaluation is likely to cause

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Guidry is unavailing; given the scope of damages that Plaintiffs seek—up to five million dollars—

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an additional four hours of examination is reasonable.

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For all of these reasons, the Court GRANTS Defendants’ request to compel Guidry to

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undergo a four-hour independent medical examination by a psychiatrist. As stated on the record at

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the hearing, the Court directs Defendants to work with Plaintiffs to set the psychiatric examination

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at a time least inconvenient to Guidry’s work schedule.

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IT IS SO ORDERED.
Dated: December 4, 2014
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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