Bakhit et al v. Safety Markings, Inc. et al

Filing 115

ORDER re: Conditions of Plaintiff Yosif Bakhit's Mental Examination. See attached Order for details. Signed by Judge Holly B. Fitzsimmons on 11/25/2014.(Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
YOSIF BAKHIT and
KIYADA MILES
v.
SAFETY MARKING, INC.,
MARK KELLY, RAY VEZINA,
PHIL BRININGER, JAMES CODY,
TOM HANRAHAN, and JEFF PERRA

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CIV. NO. 3:13CV1049 (JCH)

ORDER RE: CONDITIONS OF PLAINTIFF’S MENTAL EXAMINATION
After a telephone conference on November 5, 2014, the Court
granted defendants’ motion for order directing plaintiff Yosif
Bakhit (“plaintiff”) to submit to a mental examination. [Doc.
#112]. The Court indicated it would issue an order regarding the
conditions under which the examination would occur following the
report back of the parties. [Id.].
On November 13, 2014, the Court received a letter from
defense counsel stating,
[W]e have selected Dr. Andrew Meisler to perform an
examination of Mr. Bakhit. Dr. Meisler has proposed a
two, to three, hour interview with Mr. Bakhit. He will
use the results from the tests that Dr. Timlin-Scalera
has already administered. The only additional
examination that Dr. Meisler may employ would be a
standard personality inventory. At most, the
evaluation will require no more than half day of Mr.
Bakhit’s time.
Although this letter represents that plaintiff’s counsel had yet
to respond, plaintiff’s counsel reported to the Court that he
was waiting for defense counsel to specify the testing Dr.
Meisler intends to perform and whether defendants will permit
someone to be present during plaintiff’s examination. On

November 18, 2014, defendants filed a supplemental brief [Doc.
#113] concerning the specific circumstances of plaintiff’s
proposed psychological examination. Defendants object to (1)
disclosing the specific test prior to its administration and,
(2) the presence of a third-party at plaintiff’s psychological
examination.

Plaintiff responds that counsel has no intention

of disclosing the tests to Mr. Bakhit, but requires advance
notice for purposes of consulting with his expert to “insure the
validity, propriety and relevance of the proposed testing prior
to consenting to them, and object or request modification if
appropriate.” [Doc. #114, 2]. Plaintiff further argues that
there is good cause to permit a third party’s presence during
the Rule 35 examination.1
As to disclosure of the testing, defendants represent that
Dr. Meisler explained the proposed testing “is designed to
examine personality and behavioral traits that could be
affecting a person’s mental state,” and that, “the test is wellknown, widely used, and accepted by the psychiatric community.”
[Doc. #113, 3]. The Court credits these representations where
Dr. Meisler “is a practicing clinical and forensic psychologist
with a Ph.D. in Clinical Psychology,” and “holds clinical
faculty appointments in the Departments of Psychiatry at both
the Yale University School of Medicine and the University of
Connecticut School of Medicine.” [Doc. #102, 2]. In light of
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The parties have agreed on the afternoon of December 3, 2014 for Mr.
Bakhit’s examination, “subject to disclosure and consent to any proposed
psychological testing.” [Doc. #114, 1 n. 1].
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these representations, and that there is nothing before the
Court to suggest that Dr. Meisler will employ harmful or
otherwise unorthodox examination techniques, the Court does not
believe there is a sound basis for plaintiffs to object to the
proposed testing. Accordingly, the Court will not order
defendants to disclose the specific nature of the testing in
advance of plaintiff’s examination.
With respect to the presence of Mr. Bakhit’s counsel or
paralegal in the examination, defendants cite to a line of case
law stating that, “federal courts do not allow an attorney to be
present at a plaintiff’s psychological evaluation.” [Doc. #113,
3]. See, e.g., Favale v. Roman Catholic Diocese, 235 F.R.D. 553,
555-57 (D. Conn. 2006) (citation omitted) (“[M]ost courts start
with a presumption against the presence of third persons, and
then go on to consider whether special circumstances have been
demonstrated in a particular[] case.”); Di Bari v. Incaica Cia
Armadora S.A., 126 F.R.D. 12, 13 (E.D.N.Y. 1989) (citation
omitted) (“The presence of attorneys at psychiatric examinations
has been denied in the federal courts because of the special
nature of such an examination which relies […] upon unimpeded
one-on-one communication between doctor and patient.”).
Plaintiff argues that unique circumstances exist in this case
justifying the presence of Mr. Bakhit’s attorney or other
representative in the examination. Plaintiff specifically cites
to the findings of Dr. Timlin-Scalera’s report that Mr. Bakhit
becomes very emotional when recounting the events that underlie
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this litigation, his “very low IQ”, and that English is his
second language. Plaintiff further represents that Dr. TimlinScalera “has indicated that it would be in Yosif’s best interest
and facilitate the examination if someone with whom he has a
relationship of trust accompanies him.” [Doc. #114, 4].
On the current record, and in light of the case law in this
Circuit, the Court DENIES plaintiff’s request that his attorney
or other representative attend his Rule 35 examination. Although
a showing of special circumstances or good cause may permit the
presence of a third-party at the examination, plaintiff has
failed to make such a showing. Indeed, plaintiff does not cite
to any case law in support of this position, except for one case
where this Court noted it would “consider plaintiff’s request
that plaintiff’s counsel or representative attend the
examination,” in light of the close relationships and potential
bias presented by the examiner and defendant. Ziemba v.
Armstrong, No. Civ. 3:98CV2344JCH, 2004 WL 834685, at *1-2 (D.
Conn. March 15, 2004). Here no such allegations of bias have
been made to suggest that Mr. Bakhit’s Rule 35 examination would
be improper. Again, there is also nothing before the Court to
suggest that Dr. Meisler will employ harmful or otherwise
unorthodox examination techniques. To the extent plaintiff
relies on his sensitive emotional state as the unique or
particular circumstance upon which to permit the presence of a
third party, it would appear to be in the best interests of
plaintiff’s case for Dr. Meisler to elicit Mr. Bakhit’s
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unimpeded emotional response during the examination.
Accordingly, the Court DENIES plaintiff’s requests that (1)
defendants disclose the specific nature of Dr. Meisler’s
proposed testing; and (2) plaintiff’s counsel or representative
be permitted to accompany Mr. Bakhit during the examination. Mr.
Bakhit will appear for his Rule 35 examination on the afternoon
of December 3, 2014. The examination will last no more than
three (3) hours and will be limited to the interview/testing
described in defendants’ November 13 letter and November 18
supplemental brief. Although Mr. Bakhit’s attorney or
representative may drive him to the Rule 35 examination, the
Court will not authorize the presence of a third party during
the examination.
This is not a recommended ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at Bridgeport this 25th day of November 2014.

______/s/
______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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