McArthur v. Source Gas LLC

Filing 98

ORDER granting 86 Motion to Compel Rule 35 Mental Examination of Plaintiff and Request for Expedited Ruling, as set forth in the Order. By Magistrate Judge Michael J. Watanabe on 9/14/2011.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

10-cv-02327-REB-MJW

CAMERON McARTHUR,
Plaintiff,
v.
SOURCE GAS, LLC,
Defendant.

ORDER REGARDING
DEFENDANT’S MOTION TO COMPEL RULE 35 MENTAL EXAMINATION OF
PLAINTIFF AND REQUEST FOR EXPEDITED RULING (DOCKET NO. 86)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Defendant’s Motion to Compel Rule 35 Mental
Examination of Plaintiff and Request for Expedited Ruling (docket no. 86). The court
has reviewed the subject motion (docket no. 86), the response (docket no. 92), and the
reply (docket no. 94). In addition, the court has taken judicial notice of the court file and
has considered applicable Federal Rules of Civil Procedure and case law. The court
now being fully informed makes the following findings of fact, conclusions of law, and
Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That in Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964), the
Supreme Court ruled that Rule 35 “require[s] an affirmative showing
by the movant that each condition as to which the examination is

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sought is really and genuinely in controversy and that good cause
exists for ordering each particular examination.” The burden of
demonstrating good cause rests with the moving party. Doe v.
District of Columbia, 229 F.R.D. 24, 26 (D.D.C. 2005). The
requirement of good cause is not a mere formality; the court must
genuinely balance the need for the information with the right to
privacy and safety of the party. See Schlagenahuf, 379 U.S. 104.
Rule 35 states that the examination may be conducted by “a
suitably licensed or certified examiner.” Psychiatric examinations
are allowable if a person’s mental condition is at issue. See
Roberson v. Bair, 242 F.R.D. 130, 136-37 (D.D.C. 2007) (emotional
distress claim places the plaintiff’s condition at issue). The
examination may be conducted by a psychiatrist or psychologist.
When permanent injuries are claimed or under other appropriate
circumstances, the court may allow a second examination just
before trial. Galieti v. State Farm Mut. Auto. Ins. Co., 154 F.R.D.
262 (D. Colo. 1994). A stronger showing of necessity is usually
required for a second examination. Furlong v. Circle Line Statue of
Liberty Ferry, Inc., 902 F. Supp. 65, 70 (S.D.N.Y. 1995). Lastly, the
court has discretion to determine who may be present at the
examination. Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320,
323-24 (N.D. Ga 2000); Ali v. Wang Labs., Inc., 162 F.R.D. 165,
168 (M.D. Fla. 1995);
5.

That in this case, Plaintiff has placed his mental condition “in
controversy” by seeking emotional distress damages, asserting that
he suffers from two specific mental disorders, namely, PostTraumatic Stress Disorder [PTSD], Chronic; major depressive
disorder, severe without psychotic features, and has designated an
expert witness, Susan Kamler, MA, LPC, to support his claim of
emotional distress. See Complaint at paragraphs 65, 75, and 88.
Also see Plaintiff’s Amended Designation of Expert Witness (docket
no. 64). See also deposition of Susan Kamler, 70:15-19, attached
as Exhibit C to the subject motion (docket no. 86). Moreover,
Plaintiff has testified in deposition, in detail, that he experienced
various types of abuses and trauma as a child and throughout his
life. See deposition of Plaintiff attached as Exhibit B to the subject
motion (docket no. 86);

6.

That Defendant has demonstrated, in the subject motion (docket
no. 86), a strong showing for an IME examination as well as “good
cause” for an IME examination. Defendant further has
demonstrated that Plaintiff has placed “in controversy” whether
Plaintiff has suffered severe emotional distress injuries and has
suffered depression and anxiety which are work-related and caused

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by Defendant; and,
7.

That Jeffrey L. Metzner, M.D. [board certified psychiatrist] is
qualified to conduct an IME examination on Plaintiff.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Defendant’s Motion to Compel Rule 35 Mental Examination of
Plaintiff and Request for Expedited Ruling (docket no. 86) is
GRANTED;

2.

That the parties shall forthwith meet, confer, and set a date with
Jeffrey L. Metzner, M.D., for an IME examination of the Plaintiff.
Plaintiff’s counsel shall not be present during this IME examination.
The IME examination shall take place with Dr. Metzner and Plaintiff
only. The cost of the IME examination shall be paid by Defendant.
The IME examination shall be completed by October 17, 2011. The
deadline to complete discovery shall be extended to October 17,
2011, for the limited purpose of completing the IME examination
and to allow Defendant to obtain records from Plaintiff’s treating
psychiatrist. The Final Pretrial Conference remains set on October
31, 2011, at 8:30 a.m. The Trial Preparation Conference remains
set on January 6, 2012, at 2:00 p.m. The Bench Trial remains set
on January 9, 2012, at 9:00 a.m.; and

3.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 14th day of September, 2011.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE