Said v. San Diego, County of et al

Filing 51

ORDER Granting 50 Motion to Compel Rule 35 Examinations. The hearing set for November 17, 2014, at 10:00 a.m., is Vacated. Signed by Magistrate Judge Ruben B. Brooks on 11/7/2014. (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MOHAMAD ALI SAID, an
individual,

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Plaintiff,
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v.
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COUNTY OF SAN DIEGO; DEPUTY
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SHERIFF PATRICK LOPATOSKY;
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DEPUTY SHERIFF BRIAN BUTCHER; )
DEPUTY SHERIFF LEE SCOTT; DOES )
1-50, inclusive,
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Defendants.
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Civil No. 12cv2437 GPC(RBB)
ORDER GRANTING MOTION TO
COMPEL RULE 35 EXAMINATIONS
[ECF NO. 50]

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On October 19, 2014, Defendants Patrick Lopatosky, Brian

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Butcher, and the County of San Diego filed a "Motion to Compel Rule

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35 Examinations [ECF No. 50]" (the "Motion to Compel"), along with

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a Memorandum of Points and Authorities, a declaration of Stephanie

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Karnavas, and several exhibits.

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Motion to Compel is suitable for resolution on the papers, so the

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hearing set for November 17, 2014, at 10:00 a.m., is VACATED.

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S.D. Cal. Civ. R. 7.1(d)(1).

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Motion to Compel is GRANTED.

No opposition was filed.

The

See

For the reasons explained below, the

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12cv2437 GPC(RBB)

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff Mohamad Ali Said filed, on October 9, 2012, a

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Complaint pursuant to 42 U.S.C. § 1983, alleging that he sustained

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injuries when he was unlawfully arrested by San Diego County

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Sheriff's deputies at his home on January 24, 2012.

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4, ECF No. 1.)

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(Id. at 1, 6-12.)

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2013, and a Second Amended Complaint was filed on November 19, 2013

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[ECF Nos. 17, 23].

(Compl. 1, 3-

Additionally, Said raised several state law claims.
A First Amended Complaint was filed on June 12,

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In the Second Amended Complaint, Plaintiff raises § 1983

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claims against Deputies Patrick Lopatosky, Brian Butcher, and Scott

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Lee for unreasonable search and seizure, excessive force, false

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arrest, denial of medical attention, malicious prosecution, and

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violation of the Equal Protection Clause.

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10, ECF No. 23.)1

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liable for "Constitutional Violations via Unlawful Policies,

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Customs or Habits."

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claims for negligence, battery, false arrest, and violations of

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California Civil Code § 52.1.

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Defendants' misconduct, Said states:

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(Second Am. Compl. 6, 8-

Said alleges that the County of San Diego is

(Id. at 7.)

Plaintiff also raises state law

(Id. at 11-13.)

As a result of

Plaintiff Mohamad Ali Said suffered severe injuries
to his right elbow arm, head, back and neck, causing
severe pain. He has been treating for a dislocated elbow
and may require surgery in addition to therapy. He also
suffered severe emotional distress as a result of the
acts committed against him and as a result of being
informed that his wife who is a represent [sic] a grave
danger to his kids will be brought in to care for the two
kids. Mohamad Ali Said also suffered severe fear,
humiliation, damage to his reputation and emotional
distress as a result of being arrested, taken to jail and
being forced to endure the indignities of being booked,

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The Court will cite to all documents using the page numbers
assigned by the electronic case filing system.
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12cv2437 GPC(RBB)

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fingerprinted, photographed and searched at the county
jail despite the fact that he had done nothing unlawful.
Mohamad Ali Said had to pay bail to secure his release
from jail. He suffered further emotional distress as a
result of having to defend false criminal charges and he
has additional damages associated with having an arrest
record and having the criminal case filed against him.
(Id. at 5.)
Lopatosky, Butcher, Lee, and the County filed a Motion to

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Dismiss Plaintiff's Second Amended Complaint on December 3, 2013

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[ECF No. 24].

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in part by United States District Court Judge Gonzalo P. Curiel on

The motion to dismiss was granted in part and denied

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January 21, 2014 [ECF No. 31].

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dismissed Lee as a Defendant (Order 14, ECF No. 31); the remaining

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Defendants filed an Answer on February 4, 2014 [ECF No. 32].

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early neutral evaluation conference and case management conference

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were held on April 18, 2014 [ECF No. 37].

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Motion to Compel was filed [ECF No. 50].

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II.

In his order, Judge Curiel

An

On October 19, 2014, the

LEGAL STANDARDS

Federal Rule of Civil Procedure 35(a) provides that a Court

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may order a medical examination if a litigant's physical or mental

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condition is "in controversy" and there is a showing of good cause.

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"Rule 35 is to be 'construed liberally to allow the examination.'"

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Sanders v. Holdings, No. 11cv1590 LAB (MDD), 2012 WL 2001967, at *2

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(S.D. Cal. June 4, 2012) (citing Tan v. City and Cnty. of S.F., No.

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C 08-01564 MEJ, 2009 WL 594238, at *2 (N.D. Cal. Mar. 4, 2009)).

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When ordering an examination, the Court "must specify the time,

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place, manner, conditions, and scope of the examination, as well as

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the person or persons who will perform it."

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35(a)(2)(B).

Fed. R. Civ. P.

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"A plaintiff's mental or physical condition is 'in

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controversy' when such condition is the subject of the litigation."

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Hernandez v. Simpson, No. ED CV 13-2296-CBM (SPx), 2014 WL 4090513,

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at *2 (C.D. Cal. Aug. 18, 2014) (citing Gavin v. Hilton Worldwide,

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Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013)).

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whether a litigant's mental state is "in controversy," courts in

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this district apply the test outlined in Turner v. Imperial Stores,

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161 F.R.D. 89, 95 (S.D. Cal. 1995).

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a mental examination may be ordered when one or more of the

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In determining

In Turner, the Court held that

following circumstances are present:

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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).

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Id.

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considered 'the possibility of obtaining desired information by

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other means, whether plaintiff plans to prove her claim through

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testimony of expert witnesses, whether the desired materials are

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relevant, and whether plaintiff is claiming ongoing emotional

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distress.'"

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3407053, at *3 (S.D. Cal. July 10, 2014) (quoting Juarez v.

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Autozone Stores, Inc., No. 08cv417–L (BLM), 2011 WL 1532070, *1

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(S.D. Cal. Apr. 21, 2011)).

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"In assessing whether 'good cause' exists, courts have

Conforto v. Mabus, No. 12cv1316–W (BLM), 2014 WL

III.

DISCUSSION

In the Motion to Compel, Defendants ask that the Court order

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Said to undergo a physical and a mental examination.

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Attach. #1 Mem. P. & A. 1, ECF No. 50.)

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(Mot. Compel

They also request that the

12cv2437 GPC(RBB)

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Court address whether counsel or a third party may be present for

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the examinations, as well as the extent to which the examiners may

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inquire about how Plaintiff sustained his injuries.

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As noted, Said did not file an opposition to the Motion to Compel.

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Although failure to oppose a motion may constitute consent to

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granting it, the Court will consider the merits of Defendants'

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motion.

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A.

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See S.D. Cal. Civ. R. 7.1(f)(3)(c).

The Mental Examination
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(Id. at 5.)

Whether Plaintiff's mental condition is "in controversy"

Defendants argue that because Said alleges that he suffered

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severe emotional distress as a result of the deputies' conduct, his

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mental condition is in controversy.

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P. & A. 4, ECF No. 50.)

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also claimed that he plans to offer expert testimony in support of

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this claim.

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stated that he continues to suffer from emotional distress.

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at 2-3 (citing id. Attach. #2 Ex. 2, at 26-27).)

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reasons, Defendants assert that Plaintiff should be ordered to

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undergo a mental examination.

(Id.)

(Mot. Compel Attach. #1 Mem.

According to Defendants, Plaintiff has

Moreover, in Said's discovery responses he
(Id.

For these

(Id. at 4.)

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As noted, to determine if Said's mental condition is in

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controversy, the Court must evaluate the five Turner v. Imperial

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Stores factors.

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cause of action for intentional or negligent infliction of

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emotional distress.

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23.)

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condition or that his distress is "unusually" severe.

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161 F.R.D. at 95 (explaining second and third factors,

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respectively).

Under the first factor, Said has not alleged a

(See generally Second Am. Compl. 6-13, ECF No.

Nor does he claim that he suffers from a specific psychiatric
See Turner,

In light of the fact that Said did not file an

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opposition to the Motion to Compel, it is unclear the extent to

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which Plaintiff admits that his mental condition is in controversy

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under the fifth Turner factor.

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Karnavas 2, ECF No. 50 ("Mr. Shashaty indicated that he had spoken

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with some other attorneys about the mental examination, and

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apparently based on those discussions, he believed a court order

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was required.")).

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opposing party fails to file the papers in the manner required by

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Civil Local Rule 7.1.e.2, that failure may constitute a consent to

(See Mot. Compel Attach. #2 Decl.

But see S.D. Cal. Civ. R. 7.1(f)(3)(c) ("If an

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the granting of a motion or other request for ruling by the

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court.").

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Under the fourth Turner factor, the Court must take into

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account whether Plaintiff will offer expert testimony in support of

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his emotional distress claim.

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Plaintiff Said represents in his expert designations that he plans

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to call Dr. Ha Mistry, M.D., at trial, a "[p]sychiatrist with

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Knowledgeable [sic] about the injury and mental evaluation and

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treatment and also dispensing Medication for psychiatric condition

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treatment."

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Given Plaintiff's stated intent to introduce expert testimony to

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support his emotional distress claim, Defendants have adequately

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established that Said's mental condition is "in controversy."

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Turner, 161 F.R.D. at 95 (stating that mental examinations have

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been ordered when one or more of the factors were met).

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2.

See Turner, 161 F.R.D. at 95.

(See Mot. Compel Attach. #2 Ex. 3, 34, ECF No. 50.)

See

Whether Defendants have established good cause for the
mental examination

Defendants assert that they have also shown good cause for the
Court to order a mental examination.

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(Mot. Compel Attach. #1 Mem.

12cv2437 GPC(RBB)

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P. & A. 5, ECF No. 50.)

First, they maintain that they need the

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examination to evaluate Plaintiff's condition and the extent to

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which it is attributable to their conduct.

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examination could yield evidence showing "possible pre-existing or

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alternative causes to Plaintiff's injuries that could have a

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mitigating effect on Plaintiff's claimed damages."

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Lopatosky, Butcher, and the County also insist that they have

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established good cause in light of the fact that Said intends to

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call an expert witness to prove his emotional distress.

(Id.)

The requested

(Id.)

(Id.)

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Finally, Defendants urge that the information sought is relevant to

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Plaintiff's damages calculation.

(Id.)

Said claims that he still suffers from emotional distress as a

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result of Defendants' conduct.

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at 26-27, ECF No. 50.)

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relevant to evaluate the testimony of Dr. Mistry.

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established good cause for the mental examination.

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Motion to Compel Plaintiff to undergo a mental examination is

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GRANTED.

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B.

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(See Mot. Compel Attach. #2 Ex. 2,

Further, the information sought could be
Defendants have
The Defendants'

The Physical Examination
Defendants argue that Plaintiff does not dispute that a

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physical examination is appropriate under these circumstances.

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(Mot. Compel Attach. #1 Mem. P. & A. 3-4, ECF No. 50 (citing id.

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Attach. #2 Decl. Karnavas at 2).)

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injury to his elbow and intends to call multiple experts at trial

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to testify about his injury.

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counsel suggested conditions on the scope and structure of the

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physical examination, they will be addressed below.

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(citing id. Attach. #2 Decl. Karnavas at 1-2).)

Said has alleged a permanent

(Id. at 4.)

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Because Plaintiff's

(See id. at 3

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C.

Conditions and Scope of the Examinations
According to Defendants, Plaintiff's counsel was willing to

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agree to the proposed physical examination under the following

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terms: "1) that the examination be audio recorded; 2) that the

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examining physician be prohibited from asking Plaintiff questions

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regarding the incident or how his alleged injury occurred; and 3)

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that Plaintiff's counsel or some other third party be allowed to

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attend the examination."

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Karnavas at 2).)

(Id. at 5 (citing id. Attach. #3 Decl.

While Defendants do not object to the audio

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recording of either examination, they contend that the remaining

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conditions are "unnecessary and unreasonable."

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Nguyen v. Qualcomm Inc., Civil No. 09–1925–MMA (WVG), 2013 WL

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3353840, at *8 (S.D. Cal. July 3, 2013)).)

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both examinations be "neutral and non-adversarial, and [they state

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that] neither Plaintiff's counsel, nor any other third party,

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should be allowed to attend the examinations."

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(Id. at 5-6 (citing

Defendants intend that

(Id. at 6.)

As noted, Said did not file a response to the Defendants'

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Motion to Compel.

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the Court will not interfere with the medical examiners'

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professional judgment or ability to conduct a comprehensive

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evaluation.

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the examiner will act professionally and not subject [the

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plaintiff] to unnecessary inquiries.

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examination.") (citations omitted); see Romano v. II Morrow, Inc.,

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173 F.R.D. 271, 273 (D. Or. 1997) ("To restrict a physician from

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questioning a patient during a physical examination unduly

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restricts the physician's ability to obtain the information

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necessary to reach medical conclusions.").

Absent any opposition or explanation from Said,

See Gavin, 291 F.R.D. at 166-67 ("The court expects

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It will not micromanage the

The examining doctors

12cv2437 GPC(RBB)

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may question Said to the extent necessary to properly evaluate his

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physical and mental conditions.

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*4 ("Dr. Kalish may ask and Plaintiff shall answer questions

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regarding the events that are the subject of this action only to

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the extent necessary for Dr. Kalish properly to evaluate

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Plaintiff's mental condition."); Torres v. Kings Cnty., No. CV F 06

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0102 OWW WMW, 2007 WL 1725481, at *2 (E.D. Cal. June 14, 2007)

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("The scope of the testing would be limited to the nature and

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extent of any psychological injuries plaintiff is claiming as the

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result of the incident that is the subject of this litigation.").

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See Sanders, 2012 WL 2001967, at

Said has failed to establish that counsel or another third

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party should be allowed to attend either examination.

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courts have determined that third parties -- whether human or

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electronic [] cannot sit in on physical and mental examinations

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under FRCP 35 unless special circumstances require it.'"

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2014 WL 3407053, at *5 (quoting Nguyen, 2013 WL 3353840, at *9).

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Plaintiff has not shown that any special circumstances exist

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necessitating the presence of counsel or another third party.

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also Ashley v. City and Cnty. of S.F., No. CV-12-00045-JST (KAW),

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2013 WL 2386655, at *3-4 (N.D. Cal. May 30, 2013) (denying request

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for a third party to be present during examination, in part due to

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concerns that third party could interfere with examination).
IV.

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"'Federal

Conforto,

See

CONCLUSION

For the reasons explained above, Defendants' Motion to Compel

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[ECF No. 50] is GRANTED.

Plaintiff is ordered to undergo both a

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mental and physical examination.

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conditions proposed by Defendants are reasonable, and orders as

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follows:

The Court finds that the

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A.

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Mental Examination
The mental examination of Plaintiff will be conducted on

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November 24, 2014, at 9:00 a.m., or on some other mutually

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agreeable date and time at least one week prior to December 15,

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2014.

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Mark Kalish, M.D., located at 3131 Camino del Rio North, Ste. 270

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San Diego, CA 92108.

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will consist of an interview of Said and standard psychological

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testing which may include the following:

The examination will take place at the San Diego offices of

The examination will not exceed six hours and

MMPI-2, Millon Clinical

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Multiaxial Inventory - III, Wahler Physical Symptoms Inventory

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Test, Shipley Intellectual Assessment Test, The Measurement of

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Depression Test of Zung's, Beck Depression Inventory Test, and Beck

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Anxiety Inventory Test.

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answer questions regarding the events that are the subject of this

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action only to the extent necessary for Dr. Kalish properly to

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evaluate Plaintiff's mental condition.

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be present at the examination are Plaintiff, Dr. Kalish, and any

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other members of Dr. Kalish's staff who are needed to conduct the

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examination.

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only at the option of either party.

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B.

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Dr. Kalish may ask and Plaintiff shall

The only people allowed to

The examination may be recorded by audio recording

Physical Examination
The physical examination of Said will be conducted on December

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4, 2014, at 12:00 p.m., or on some other mutually agreeable date

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and time at least one week prior to December 15, 2014.

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examination will take place at the San Diego offices of Richard

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Greenfield, M.D., located at 3737 Moraga Avenue, Suite A106, San

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Diego, CA 92117.

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will consist of a patient interview and a full and complete

The

The examination will not exceed three hours and

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12cv2437 GPC(RBB)

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orthopedic examination of all areas that Plaintiff claims to have

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injured in the incident alleged in the Second Amended Complaint,

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including but not limited to his right elbow/arm.

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may include x-rays and magnetic resonance imaging to the extent Dr.

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Greenfield determines such diagnostic tools are necessary to

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conduct a complete examination.

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Plaintiff shall answer questions regarding the events that are the

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subject of this action only to the extent necessary for Dr.

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Greenfield properly to evaluate Plaintiff's physical condition.

The examination

Dr. Greenfield may ask and

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The only people allowed to be present at the examination are Said,

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Dr. Greenfield, and any other members of Dr. Greenfield's staff

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needed to conduct the examination.

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by audio recording only at the option of either party.

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The examination may be recorded

IT IS SO ORDERED.

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DATE: November 7, 2014

_______________________________
Ruben B. Brooks
United States Magistrate Judge

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cc:
Judge Curiel
All parties of record

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