Perez et al v. John Muir Health

Filing 62

Discovery Order re: 61 Joint Discovery Letter Brief. Signed by Judge Maria-Elena James on 3/24/2016. (cdnS, COURT STAFF) (Filed on 3/24/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARLENE PEREZ, et al.,

Case No. 15-cv-01792-HSG (MEJ)

Plaintiffs,
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DISCOVERY ORDER

v.

Re: Dkt. No. 61

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JOHN MUIR HEALTH, et al.,
Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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In this employment discrimination case, the parties submit a discovery dispute letter

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regarding Defendant John Muir Health’s (“Defendant”) Request for Plaintiffs Marlene Perez and

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Rosa Cerisano (“Plaintiffs”) to submit to a mental examination by Defendant’s retained expert Dr.

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Mark Lipian, a board certified psychiatrist. Dkt. No. 61 (“Jt. Ltr.”). Having considered the

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parties’ positions, relevant legal authority, and the record in this case, the Court DENIES

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Defendant’s request for the following reasons.

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BACKGROUND
Plaintiffs bring this action against Defendant, their former employer, for discrimination,

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retaliation, constructive discharge, and failure to provide a workplace free of retaliation. First Am.

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Compl. ¶ 1, Dkt. No. 60. The following background is taken from the parties’ joint letter. Jt. Ltr.

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at 1-2. Plaintiffs resigned while on medical leaves of absence. Perez alleges she suffered a

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“breakdown” at the hospital. Both Plaintiffs claim to suffer from “severe emotional distress,

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including but not limited to, anxiety, humiliation, embarrassment, loss of self-esteem, mental

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anguish, depression and post-traumatic stress.”

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In September 2015, Perez testified that she is “severely, severely depressed” “every other

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day or every day,” feels anxiety once a day (heart palpitations, shortness of breath, light

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headedness), has insomnia approximately 2-3 times per week, and cries. She testified she cannot

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look at Defendant’s logo or drive by the hospital without suffering from “really bad anxiety,” she

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has “lost all” of her friends, does not want to leave the house and just wants to sit in a dark room

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alone. She also testified that several years prior (in May 2012), during her employment, she and

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her then husband had one brief domestic violence incident from which she suffered bruises on her

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hands. Afterward, she obtained a “no contact” restraining order, filed for divorce, and talked to a

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therapist in 2012 about her family life.

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In her September and November 2015 depositions, Cerisano testified that her family doctor
(who is not a psychiatrist) told her she has “situational” depression. She testified that she suffers

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United States District Court
Northern District of California

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from stress and anxiety, has lost confidence in her nursing abilities such that she could not pass a

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basic nursing skill competency test to get a new job, “panics all the time,” has “isolated” herself,

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does not leave the house, and cannot bear to look at Defendant’s logo or drive by the hospital.

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On January 4, 2016, Defendant requested Plaintiffs undergo an independent medical

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examination (“IME”) to take place on mutually agreeable dates. Plaintiffs’ counsel responded,

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“No doubt Plaintiffs’ emotional distress is an issue,” but did not concede that Plaintiffs’ “mental

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condition” had been placed in controversy. Plaintiffs requested, and Defendant provided, more

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information regarding the duration and scope of the proposed medical exams and Dr. Lipian, and a

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draft stipulation. In accordance with Dr. Lipian’s customary practice, the psychiatric examination

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(which will require approximately eight hours to conduct), will consist of a detailed interview

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consisting of general open-ended questions, mental status examination, and generally accepted

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standardized psychological testing and screening cognitive assessment. The testing may include

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the MMPI-2 or Personality Assessment Inventory (PAI), the Mini-Mental State Examination

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(MMSE), and the Trauma Symptom Inventory – 2 (TSI-2). On January 15, Plaintiffs requested

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more time to consider the proposed stipulation.

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On January 19, Defendant served a Demand for a Mental Examination of Plaintiffs

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pursuant to Federal Rule of Civil Procedure 35. On January 22, the parties executed a joint

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stipulation requesting that certain pretrial deadlines be continued for good cause, including more
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time for the parties to complete the proposed mental examinations. Dkt. No. 47. The Court

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granted the stipulation and continued the pre-trial deadlines. Dkt. No. 51. On January 28,

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Defendant asked about the status of the proposed stipulation for the medical examinations.

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Plaintiffs’ counsel responded that he was “researching and seeking counsel concerning the validity

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of Defendant’s proposed stipulation.” On February 12 and 18, Defendant again inquired about the

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status of the proposed stipulation. On February 23, eight weeks after Defendant had initially

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proposed the stipulation, Plaintiffs refused to stipulate and instead requested that the parties meet

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and confer regarding Plaintiffs’ concerns. The lawyers finally met and conferred in person on

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March 21, 2016.

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Defendant argues Plaintiffs have placed their mental condition in controversy because they

United States District Court
Northern District of California

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testified at length regarding their current symptoms of depression and anxiety. Jt. Ltr. at 2. It

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notes Plaintiffs have identified several medical providers who will likely testify as medical experts

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at trial. Id. Defendant further argues good causes exists to order the IMEs because Plaintiffs are

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claiming “unusually severe, ongoing emotional distress,” and it is therefore entitled to test whether

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the conduct alleged could have caused these reactions and/or whether the conditions pre-existed or

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have other causes. Id.

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In response, Plaintiffs maintain they have not placed their mental conditions in controversy

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sufficient to warrant IMEs because their emotional distress damages are merely incidental to their

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work-related damages. Id. at 3. They note that neither Plaintiff has asserted a cause of action for

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negligent or intentional infliction of emotional distress, and they have only been treated with

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family practitioners and/or family therapists/LCSW rather than a psychiatrist. Id. at 4. Plaintiffs

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agree to limit any emotional distress damages to “garden variety” type emotional distress. Id.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 35 provides that, for good cause shown, the court “may

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order a party whose mental or physical condition . . . is in controversy to submit to a physical or

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mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. 35(a). “Under

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Rule 35, the party moving for a physical or mental examination must meet two requirements: first,

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the physical or mental condition of the party must be ‘in controversy’; and second, ‘good cause’
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for the examination must be established.” Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 608

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(C.D. Cal. 1995) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 117-20 (1964)). In addition,

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[b]efore a mental examination is compelled, in addition to a bare
claim for mental distress, the moving party should demonstrate one
or more of the following: “1) a cause of action for intentional or
negligent infliction of emotional distress; 2) an allegation of a
specific mental or psychiatric injury or disorder; 3) a claim of
unusually severe emotional distress; 4) plaintiff’s offer of expert
testimony to support a claim of emotional distress; and/or 5)
plaintiff’s concession that his or her mental condition is ‘in
controversy’ within the meaning of Rule 35(a).”
Rund v. Charter Commc’ns, Inc., 2007 WL 312037, at *1 (E.D. Cal. Jan. 30, 2007) (quoting

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Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995)). The decision whether to allow a

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proposed examination rests within the broad discretion of the court. Lester v. Mineta, 2006 WL

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3741949, at *1 (N.D. Cal. Dec. 19, 2006).

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DISCUSSION

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Reviewing the record in this case, at first look it could be said that Plaintiffs have put their

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mental condition in controversy: their Complaint includes allegations that Defendant caused them

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to suffer “severe emotional distress, including, but not limited to, anxiety, fear, humiliation,

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embarrassment, loss of self-esteem, mental anguish, depression and post-traumatic stress.” See

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Compl. ¶¶ 59, 69, 79, 90, 101, 112. However, Plaintiffs’ allegations appear to be based on the

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distress an ordinary person would suffer if she suffered employment discrimination as alleged.

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This language concerning Plaintiffs’ general emotional distress is contained in all six of Plaintiffs’

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claims, with no separate cause of action for infliction of emotional distress. Furthermore, as noted

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above, Plaintiffs have agreed to limit any emotional distress damages to garden variety type

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emotional distress. Cases that involve garden variety allegations of emotional distress ordinarily

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are not sufficient to require a mental exam. Rund, 2007 WL 312037, at *2 (“there is no doubt that

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the ordinary person would suffer temporary distress if he were unlawfully terminated from

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employment he otherwise desired to retain. There is no need to conduct a mental examination, or

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have medical personnel testify to such, for the very reason that such distress is normal and

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understandable by the lay factfinder.” (citing Sabree v. United Broth. of Carpenters & Joiners,

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126 F.R.D. 422, 426 (D. Mass. 1989) (finding that although complaint contained specific claims
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for emotional distress under state law, plaintiff’s mental condition was not at issue); Benchmaster,

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Inc. v. Kawaelde, 107 F.R.D. 752, 754 (E.D. Mich. 1985) (proffering rationale that psychiatrist

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could aid only in determining present emotional disturbance)); see also Minnard v. Rotech

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Healthcare Inc., 2008 WL 150502, at *3 (E.D. Cal. Jan. 15, 2008) (“A review of the complaint

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indicates for most claims that the addition of ‘emotional distress’ damages to the prayer was fairly

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routine and would not have placed defendant on notice that a Rule 35 exam should have been

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scheduled. But the addition of a specific ‘intentional infliction of emotional distress’ claim is a

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factor pointing to the necessity for such an exam.”).

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Further, neither Plaintiff has treated with a psychiatrist and neither intends to designate a
retained expert witness to testify on the issue of Plaintiffs’ current emotional distress. Jt. Ltr. at 4.

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United States District Court
Northern District of California

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In fact, there is no allegation of a specific mental or psychiatric injury or disorder, and while

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Plaintiffs’ counsel admitted Plaintiffs’ “emotional distress is an issue,” see id. at 1, Plaintiffs have

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not conceded that their “mental condition” is “in controversy.” Accordingly, given the record

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before it, the Court finds an independent medical examination is not appropriate.
CONCLUSION

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Based on the analysis above, the Court DENIES Defendant’s request to compel Rule 35
mental examinations.
IT IS SO ORDERED.

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Dated: March 24, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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