Bourne v. Middletown, et al

Filing 99

RULING ON MOTION TO COMPEL INDEPENDENT PSYCHOLOGICAL EVALUATION denying 78 Motion to Compel. Signed by Judge Dominic J. Squatrito on 12/18/12. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTINE BOURNE,
Plaintiff,
v.
CITY OF MIDDLETOWN, MICHAEL
FRECHETTE, NANCY HAYNES, and
MIDDLETOWN BOARD OF
EDUCATION,
Defendants

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No. 3:11CV309 (DJS)

RULING ON MOTION TO COMPEL INDEPENDENT
PSYCHOLOGICAL EVALUATION

On April 25, 2012, the plaintiff, Christine Bourne, filed an Amended Complaint (doc. #
70) seeking damages against the defendants, Michael Frechette (“Frechette”), Nancy Haynes
(“Haynes”), the Middletown Board of Education (“Board of Education”), and the City of
Middletown. The plaintiff has alleged numerous causes of action against the defendants,
including violations of Conn. Gen. Stat. §31-51q, Conn. Gen. Stat. §31-51m, 42 U.S.C. §1983,
on both First Amendment and Due Process grounds, and common law battery.
On June 12, 2012, the defendants Frechette, Haynes, and Board of Education filed a
motion to compel an independent psychological examination of the plaintiff. For the following
reasons, the defendants‟ motion to compel (doc. # 78) is hereby DENIED.
I. BACKGROUND
In October 2008 Sebastian Guiliano, Mayor of the defendant City of Middletown,
appointed the plaintiff to the position of Payroll Supervisor of the Board of Education. The

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plaintiff alleges that the administration of the Board of Education was opposed to her
appointment and lays out in her Amended Complaint a series of retaliatory acts that allegedly
were committed by the defendants against her.
In February 2011 the plaintiff filed a complaint against the defendants in the Connecticut
Superior Court. On February 25, 2011, the matter was removed to the United States District
Court for the District of Connecticut. On April 25, 2012, the plaintiff filed an Amended
Complaint.
In the course of responding to discovery requests by the defendants, the plaintiff has
disclosed a variety of treatment records and medical records from both her primary care
physician, Dr. Michael Goode, as well as a mental health clinician, Jessica Backer-Wilde,
LCSW. The defendants also took the deposition of the plaintiff‟s mental health clinician, Ms.
Backer-Wilde. The defendants have now moved to compel an independent psychological
evaluation of the plaintiff.
II. STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that “[t]he court where the action is
pending may order a party whose mental or physical condition . . . is in controversy to submit to
a physical or mental examination. . . .” Fed. R. Civ. P. 35(a)(1). Any such order “ may be made
only on motion for good cause. . . .” Fed. R. Civ. P. 35(a)(2)(A). “„The district court enjoys
broad discretion when resolving discovery disputes, which should be exercised by determining
the relevance of discovery requests, assessing oppressiveness, and weighing these factors in
deciding whether discovery should be compelled.‟” Favale v. Roman Catholic Diocese of
Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (quoting Yancey v. Hooten, 180 F.R.D. 203,
207 (D. Conn. 1998)).

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The standard articulated in Rule 35 cannot be met by “mere conclusory allegations of the
pleadings - - nor by mere relevance to the case - - but require an affirmative showing by the
movant that each condition as to which the examination is sought is really and genuinely in
controversy and that good cause exists for ordering each particular examination.” Schlagenhauf
v. Holder, 379 U.S. 104, 118 (1964). The concepts of “in controversy” and “good cause” rise to a
higher standard than mere “relevance” as articulated in Rule 26. Id. at 117−18. In particular, the
good cause requirement “indicate[s] that there must be greater showing of need under Rule[] . . .
35 than under the other discovery rules.” Id. at 118.

III. DISCUSSION
“Rule 35… requires discriminating application by the trial judge, who must decide, as an
initial matter in every case, whether the party requesting a mental or physical examination . . .
has adequately demonstrated the existence of the Rule‟s requirements of „in controversy‟ and
„good cause‟ . . . .” Schlagenhauf, 379 U.S. at 118-19. The issue first raised by both parties is the
degree to which the plaintiff‟s mental state is in controversy for the purposes of this case.
The use of an independent psychological evaluation is limited to the degree to which the
plaintiff has entered her emotional state into controversy. Generally, a standard, “garden-variety”
allegation of emotional distress in a complaint does not satisfy the requirements of Rule 35. Cody
v. Marriott Corp., 103 F.R.D. 421 (D. Mass. 1984) summarizes the view that a party‟s mental
condition is not “in controversy” simply because that party claims damages for emotional
distress:
The “good cause” and “in controversy” requirements of Rule 35
make it very apparent that sweeping examinations of a party who
has not affirmatively put into issue [her] own mental . . .
condition are not to be automatically ordered merely because the
person has made a claim of emotional distress. To hold otherwise
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would mean that such examinations could be ordered routinely in
cases where there is a claim of damages for emotional distress.
Plaintiff has not placed her mental condition “in controversy” by
asserting a claim of damages for physical and emotional distress.
Id. at 422.1(internal quotation marks and citations omitted). In a majority of cases
that give rise to an order under Rule 35, there has either been “a separate tort
claim for emotional distress or ongoing severe mental injury . . . .” Holt v. Ayers,
No. CV F-97-6210-AWI, 2006 WL 2506773, at *5 (E.D. Cal. Aug. 29, 2006);
accord Bridges v. Eastman Kodak Co., 850 F. Supp. 216, 222 (S.D.N.Y. 1994);
Curtis v. Express, Inc., 868 F. Supp. 467, 469 (N.D.N.Y. 1994).
The defendants have encouraged the utilization of the standard articulated in Gattegno v.
Pricewaterhousecoopers, LLP, 204 F.R.D. 228 (D. Conn. 2001). Gattegno recognized five
distinct situations where a court may order a plaintiff to undergo mental examinations. They are
as follows: “„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).‟” Id. at 231 (quoting Turner v. Imperial Stores, 161 F.R.D.
89, 95 (S.D. Cal. 1995).
The Court finds that the instant case does not fall within any of the criteria identified
above. The plaintiff has not included in her pleadings a claim for intentional or negligent
infliction of emotional distress, nor has she alleged any specific form of mental or psychiatric
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The Court recognizes that there is some disagreement with the reasoning employed in Cody. See Curtis v. Express,
Inc., 868 F. Supp. 467, 468 (N.D.N.Y. 1994) (recognizing the disagreement). However the only decision to
completely reject the Cody reasoning was Jansen v. Packaging Corp. of America, 158 F.R.D. 409, 410 (N.D. Ill.
1994). This Court does not find the Jansen decision persuasive. That decision did not provide a rationale for its
rejection of Cody beyond stating that “this Court disagrees entirely with the analysis and conclusion reached by the
Magistrate in Cody.” Id.

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injury or disorder. The defendants appear to blur the distinction between “a specific mental or
psychiatric injury or disorder,” id., and emotional distress by arguing that the plaintiff‟s
“emotional condition” is at issue in this case. (Doc. # 84, at 2-5.) See Cody, 103 F.R.D. at 422
(“Plaintiff has not placed her mental condition „in controversy‟ by asserting a claim of damages
for . . . emotional distress.”).
Merely including pleadings that allege emotional distress does not amount to a
concession on the part of the plaintiff that such distress falls within the grasp of Rule 35.
The defendants contend that by disclosing medical records and allowing for the deposition of
Ms. Backer-Wilde to be taken, the plaintiff “has conceded that her emotional condition is at
issue.” (Doc. # 84, at 4.) The Court does not view these facts as a concession by the plaintiff that
“her mental condition is „in controversy‟ within the meaning of Rule 35 (a).” Gattegno, 204
F.R.D. at 231(internal quotation marks omitted). The defendants also seem to suggest that these
same acts, i.e., disclosing medical records and permitting the deposition of Ms. Backer-Wilde,
indicate that the plaintiff intends to proffer expert testimony to support her claims. However, the
plaintiff herself has acknowledged that she “has disclosed no experts,” (doc. # 81, at 7), and the
discovery period has ended. Under these circumstances, the Court construes the plaintiff‟s
statement as a representation that she will not seek to offer expert testimony to support her claim
of emotional distress, and the Court accepts and relies upon this representation.
The defendants also argue that the plaintiff has claimed “unusually severe emotional
distress” similar to that claimed by the plaintiff in Kaytor v. Electric Boat Corp., No.
3:06CV01953 (DJS), 2007 WL 4322546 (D. Conn. Dec. 11, 2007). In Kaytor, this Court
granted the defendant‟s motion to compel a mental examination of the plaintiff. In so doing, the
Court found not only that the plaintiff had alleged ongoing emotional distress for which she was

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seeking treatment, but also that her Amended Complaint alleged “severe” emotional distress for
which she was seeking damages in the stated amount of $10,000,000. Additionally, the Court
agreed with the defendant “that one of Kaytor‟s retaliation claims, wherein she alleges that she
was retaliated against for apparently not submitting to a psychiatric examination, puts Kaytor‟s
mental condition in controversy.” Id., 2007 WL 4322546, at *4. Given the absence of these
considerations in the instant case, the Court does not agree with the defendants that the plaintiff
here is “in very similar circumstances” to the plaintiff in Kaytor. (Doc. # 84, at 4.)
The Court also finds this case to be distinguishable from both Hodges v. Keane, 145
F.R.D. 332 (S.D.N.Y. 1993), which involved a diagnosed paranoid schizophrenic whose medical
condition may have affected his trial testimony, and Duncan v. Upjohn, 155 F.R.D. 23 (D. Conn.
1994), a negligence action wherein the plaintiff claimed the defendant‟s psychiatric drug caused
such severe mental injury that the plaintiff needed to be institutionalized. There is nothing
before the Court suggesting that the plaintiff in the instant matter has ever been institutionalized
or diagnosed with a severe mental disorder. The cases cited by the defendants do not lead the
Court to the conclusion that the plaintiff should be compelled to undergo an independent
psychological examination.
For purposes of evaluating damage awards for emotional distress, courts often group
emotional distress claims into three categories: “garden-variety, significant and egregious.”
Thorsen v. County of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010) (internal quotation
marks omitted). Evidence of a garden-variety claim “is generally limited to the testimony of the
plaintiff,” whereas a significant emotional distress claim may be supported by “evidence of
treatment by a healthcare professional and/or medication . . . .” Id. (internal quotation marks
omitted). The defendants argue that since the plaintiff has received, and continues to receive,

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treatment for her emotional distress, her claim must be considered to be more than a gardenvariety emotional distress claim, and thus the plaintiff has placed her mental condition in
controversy. While it may be true that what is classified as a significant emotional distress claim
differs from a garden-variety claim, the fact remains that the standard articulated in Gattegno,
which is the standard endorsed by the defendants, requires “a claim of unusually severe
emotional distress.” Gattegno, 204 F.R.D. at 231. The Court does not find the plaintiff‟s claim
to be one of unusually severe emotional distress. The plaintiff herself has characterized her
claim as “a „garden variety‟ emotional distress claim,” and has further acknowledged that she
“has alleged neither a separate tort claim for emotional distress nor an allegation of ongoing
severe mental injury.” (Doc. # 81, at 5.) Here too the Court accepts and relies upon (and the
plaintiff will be bound by) the plaintiff‟s representation that she is not alleging “ongoing severe
mental injury.” (Id.)
IV. CONCLUSION
For the foregoing reasons, the Motion to Compel an Independent Psychological
Examination (doc. # 78) is DENIED.

SO ORDERED this

18th

day of December, 2012

_____/s/ DJS__________________________________________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

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