Luque-Villanueva v. San Diego, County of et al

Filing 42

ORDER Granting Ex Parte 37 Motion for Plaintiff to Sit for Mental Examination; and Granting in Part and Denying in Part 37 Motion to Amend Scheduling Order. Mandatory Settlement Conference set for June 11, 2018 at 2:30 p.m; Proposed Final Pretrial Conference Order Deadline: July 20, 2018; Final Pretrial Conference set for July 27, 2018 at 1:30 p.m. Signed by Magistrate Judge Nita L. Stormes on 5/10/18. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BERNARDO LUQUE-VILLANUEVA,
et al.,

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ORDER :

Plaintiffs,

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Case No.: 16cv2945-GPC (NLS)

v.

(1) GRANTING EX PARTE MOTION
FOR PLAINTIFF TO SIT FOR
MENTAL EXAMINATION; and

COUNTY OF SAN DIEGO, et al.,
Defendants.

(2) GRANTING IN PART AND
DENYING IN PART MOTION TO
AMEND SCHEDULING ORDER

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[ECF No. 37]

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Before the Court is Defendants’ ex parte motion for an order (1) requiring Plaintiff
Bernardo Luque-Villanueva to submit for a mental examination by their retained expert
witness and (2) amending the scheduling order. ECF No. 37. The Court ordered Plaintiff
to respond to the motion, and Plaintiff filed an affidavit in opposition. ECF Nos. 38, 39.
Defendants requested an opportunity to respond, which the Court granted, and filed a
reply. ECF No. 40. For the reasons set forth below, the Court (1) GRANTS the motion

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for Plaintiff to sit for a mental examination; and (2) GRANTS IN PART AND DENIES

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IN PART the motion to amend the scheduling order.

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I.

MOTION FOR MENTAL EXAMINATION

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a. Background
This case arises from an altercation between Plaintiffs and Defendant San Diego

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County Deputy Sheriff James Steinmeyer that took place January 23, 2016. ECF No. 19

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¶¶ 26. Plaintiffs allege that they exited a bar early that morning, went into a 7-Eleven

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store with their friends, and when they exited the store, Defendant Steinmeyer and other

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officers approached them and pointed a taser at them, ordering them to put their hands

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behind their backs. Id. ¶¶ 31-40. Plaintiffs allege that they were not drunk or acting

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disorderly at the time. Id. ¶ 43. Plaintiffs allege that Defendants then sprayed them with

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pepper-spray, and officers physically forced Plaintiff Luque-Villaneuva to pull his hands

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behind his back and strangled and choked him as he was tackled and held on the ground.

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Id. ¶¶ 55-56.

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Defendants request that Plaintiff Luque-Villanueva be ordered to sit for a mental

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examination. On March 30, 2018, the date on which the parties exchanged initial expert

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witness disclosures, Plaintiff designated a clinical and forensic psychologist, Dr. Nina

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Rodd, as a retained expert witness and submitted her expert report. ECF No. 37 at 1; see

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also ECF No. 39, Ex. A. Dr. Rodd was referred in order to evaluate whether Plaintiff

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“suffer[s] from any psychological disorder” as a result of the alleged wrongful arrest and

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physical violence against him, and if so, what the effects were on his psychological,

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social, and occupational functioning. ECF No. 39, Ex. A at 1. In order to complete this

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evaluation, Dr. Rodd performed a clinical interview, mental status examination, and

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various psychological tests on Plaintiff (including the MMPI-2, Trauma Symptoms

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Inventory, Personal Assessment Inventory, and Beck Depression Inventory), all of which

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took 6.25 hours. Id. at 11.

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//

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b. Legal Standards
Federal Rule of Civil Procedure 35 governs mental examinations and authorizes

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the court to “order a party whose mental or physical condition . . . is in controversy to

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submit to a physical or mental examination by a suitably licensed or certified examiner.”

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Fed. R. Civ. P. 35(a)(1). The order may be made “only on motion for good cause and on

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notice to all parties and the person to be examined” and “must specify the time, place,

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

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will perform it.” Fed. R. Civ. P. 35(a)(2).

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A Rule 35 examination requires a showing that the party’s mental or physical

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condition is “in controversy” and that there is “good cause” supporting the order.

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Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964). More than a showing of “mere

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relevance” is required to meet this standard. Id. at 118. A claim of emotional distress

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can place a person’s mental state “in controversy” if accompanied with one or more of

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the following: “(1) a cause of action for intentional or negligent infliction of emotional

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distress; (2) an allegation of a specific mental or psychiatric injury or disorder; (3) a

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claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to

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support a claim of emotional distress; or (5) plaintiff’s concession that his or her mental

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condition is ‘in controversy.’” Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal.

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1995). The following factors are considered in determining if there is “good cause” to

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permit the examination: “(1) the possibility of obtaining desired information by other

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means; (2) whether plaintiff plans to prove her claim through testimony of expert

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witnesses; (3) whether the desired materials are relevant, and; (4) whether plaintiff claims

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ongoing emotional distress.” Mailhoit v. Home Depot U.S.A., Inc., No.

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CV1103892DOCSSX, 2013 WL 12122580, at *4 (C.D. Cal. Jan. 24, 2013).

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c. Discussion
Here, the Court finds that ordering Plaintiff to submit for a mental examination is

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appropriate. Plaintiff has put his mental state “in controversy” since he maintains a cause

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of action for intentional infliction of emotional distress (see ECF No. 19 at 40-41), and
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has submitted supporting expert testimony. Factors that establish “good cause” to order

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the examination include the submission of the expert report as evidence of Plaintiff’s

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claim and because the expert report also states that Plaintiff claims ongoing mental

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distress symptoms. In addition, because the expert report was based on a mental

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examination of Plaintiff, Defendants should have a fair opportunity to have their expert

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perform a similar examination in order to rebut the expert testimony.

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Plaintiff argues that the examination should not be allowed because it is degrading

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and invasive and Defendants’ request is untimely because Dr. Rodd’s report was

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disclosed to Defendants earlier on during discovery.1 ECF No. 39 at 4-5. As to the

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invasive nature of the exam, this is likely true for any mental examination to some degree

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and Plaintiff puts forth no reason why this is exacerbated in his case or why it should

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prevent the examination when there is good cause otherwise. As to timeliness, as

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Defendants point out, Dr. Rodd was only formally designated as an expert on March 30.

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Moreover, in light of the posture of the claims at issue and the Court’s preference for

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deciding cases on the merits, the Court finds it appropriate to permit the exam.

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d. Scope of Examination

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Defendants propose to have their rebuttal expert, Dr. Dominick Addario, a board

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certified psychiatrist, evaluate Plaintiff Luque-Villaneuva at Dr. Addario’s office, located

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at 3010 First Avenue, San Diego, CA 92103. ECF No. 37 at 2-3. Dr. Addario intends to

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conduct a face-to-face clinical interview with Plaintiff, during which background

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information/history will be collected and a mental status examination will be conducted.

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Id. at 3. He also plans to conduct psychological testing, which may include (1) the

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MMPI-2 and the Millon Clinical Multiaxial Inventory-III, which assess depression,

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personality features, symptoms and thought processes, and (2) self-assessment tests

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Plaintiff spent three pages of his five-page opposition filing complaining of discovery conduct that was
wholly unrelated to the issues in Defendants’ ex parte motion. See ECF No. 39 at 2-4. The Court
admonishes that the filing was not the appropriate forum to air any such grievances and does not take
into consideration any of the unrelated content filed therein.
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depending on symptomology, such as the Beck Depression Inventory Test and the Beck

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Anxiety Inventory Test. Id. Dr. Addario’s expert report will be offered to address/rebut

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the opinions of Dr. Rodd and will be shared promptly with Plaintiffs once completed. Id.

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Dr. Addario estimates that the time to complete the examination will be four to six hours.

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Id.

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The Court finds this scope of the examination to be appropriate for the rebuttal
expert report. Accordingly, the Court GRANTS the motion and ORDERS as follows:

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(1)

Plaintiff Bernardo Luque-Villanueva is ordered to undergo a mental

evaluation with Defendants’ board certified psychiatrist, Dr. Dominick Addario, to be
conducted on June 5, 2018 at 12:00 p.m. at 3010 First Ave., San Diego, CA 92103.

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(2)

The examination will be conducted for the purpose of determining the nature

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and extent of plaintiff’s severe emotional distress as alleged in the first amended

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complaint in this action. The examination shall last no more than six hours,

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encompassing both the clinical interview and psychological testing components.

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II.

MOTION TO AMEND SCHEDULE

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Defendants request an extension to all case schedule dates in order to (1)

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accommodate the mental examination, and (2) in light of Defendants’ counsel’s

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upcoming maternity leave. ECF No. 37 at 5-6. While the Court will grant a brief

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extension on dates that will necessarily be affected by the discovery ordered above, the

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Court declines to grant the full extension requested on other dates at this time.

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Accordingly, the dates that will be modified are as follows:

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CASE LITIGATION
EVENT
Deadline for Dr. Addario’s
Report
Expert Witness Discovery
Deadline (for all but Dr.
Addario)

PRESENTLY
SCHEDULED DATES

NEW ENLARGED
DATES
June 12, 2018

May 7, 2018

May 21, 2018

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Expert Witness Discovery
Deadline for Dr. Addario (if
any)

June 26, 2018

All Pre-Trial Motions filing May 11, 2018
deadline

May 25, 2018

Mandatory Settlement
Conference
Pre-trial disclosure
requirements of Fed. R.
Civ. P. 26(a)(3)
Local Rule 16.1(f)(4)
requirements and meeting
Pretrial order and meeting
pursuant to Civil Local
Rule 16.1(f).
Proposed Final Pretrial
Conference Order
Final Pretrial Conference

May 16, 2018 at 2:30 p.m.

June 11, 2018 at 2:30 p.m.

June 15, 2018

June 29, 2018

June 22, 2018

July 6, 2018

June 29, 2018

July 13, 2018

July 6, 2018

July 20, 2018

July 13, 2018 at 1:30 p.m.

July 27, 2018 at 1:30 p.m.

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All other dates will remain as previously set.
IT IS SO ORDERED.
Dated: May 10, 2018

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