Cunningham v. School Board of Lake County, Florida et al

Filing 47

ORDER: Defendants' Amended Motion for Mental Examination 41 is DENIED. Defendants' Amended Motion for Enlargement of Time 38 is DENIED as premature. Signed by Judge James S. Moody, Jr. on 3/20/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
DAVID CUNNINGHAM,
Plaintiff,
v.

Case No: 5:15-cv-480-Oc-30PRL

SCHOOL BOARD OF LAKE COUNTY,
FLORIDA and SUSAN MOXLEY,
Defendants.

ORDER
David Cunningham is suing the School Board of Lake County and Superintendent
Susan Moxley for alleged employment retaliation under the First Amendment and racial
discrimination. As part of his damages, Cunningham has claimed emotional distress, and
at deposition testified that he was suffering from posttraumatic stress disorder and
depression. Defendants now move to compel a compulsory mental examination of
Cunningham under Federal Rule of Civil Procedure 35(a)(1). Because Defendants have
not met their burden of showing Cunningham’s mental state is in controversy and have not
established good cause, the Court concludes the Motion (Doc. 41) should be denied.
DISCUSSION
To compel a mental examination, “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 or examinations has adequately demonstrated
the existence of the Rule's requirements of ‘in controversy’ and ‘good cause’….”

Schlagenhauf v. Holder, 379 U.S. 104, 118–19, 85 S. Ct. 234, 243, 13 L. Ed. 2d 152 (1964).
These requirements “are not 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.” Id. The movant has the
burden of establishing both requirements. Roberson v. Church, No. 3:09-CV-372-J34MCR, 2009 WL 5214989, at *1 (M.D. Fla. Dec. 29, 2009).
Defendants have failed to meet their burden. Defendants provided essentially a three
paragraph motion that fails entirely to address the “in controversy” requirement and
provides only a conclusory statement that Defendants have demonstrated “good cause.”
(Doc. 41). This is insufficient to meet the stringent standard required to subject
Cunningham to a mental examination.
Beyond that, the Court is not convinced that Defendants could meet their burden
based on the allegations in the pleadings and Cunningham’s deposition testimony that they
presented to the Court. That is because garden variety claims for emotional distress, as
Cunningham seeks, do not put his mental condition in controversy. Nathai v. Fla. Detroit
Diesel–Allison, Inc., 268 F.R.D. 398, 400 (M.D. Fla. 2010) (“It is true, a plaintiff does not
put his or her mental condition in controversy simply by seeking damages based on
emotional distress.”); Torrey v. Marion Cnty. Sch. Bd., No. 5:12–CV–662–OC–10PRL,
2014 WL 457766, at *1 (M.D. Fla. Feb. 4, 2014) (“Typically, a Plaintiff's claim for
emotional distress does not necessarily warrant a Rule 35 mental examination.”); Ali v.
Wang

Labs.,

Inc., 162

F.R.D.

165,

167–68

2

(M.D.

Fla.

1995) (“[P]laintiff's

'mental condition'

within

the

meaning

of Rule 35 is

not

necessarily

placed in controversy merely because plaintiff seeks recovery for 'emotional distress'. A
person with no 'mental condition' may still suffer emotional distress which is
compensable.”); Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 553 (N.D. Ga.
2001) (“The

majority

of

courts

have

held

that

plaintiffs

do

not

place

their mental condition in controversy merely by claiming damages for mental anguish or
'garden variety' emotional distress.”).
And while Cunningham testified at deposition that he suffers from post-traumatic
stress, that is not something Cunningham will be able to testify about at trial; such a
diagnosis would require a medical professional’s testimony. Defendants’ bare motion did
not show that there will be any testimony from a medical professional that Cunningham
suffered from post-traumatic stress disorder, so Defendants have not established that a
compulsory mental examination is necessary at this time. If Defendants depose
Cunningham’s doctors and are able to establish post-traumatic stress disorder is their
diagnosis—a diagnosis for which Cunningham is seeking damages in excess of those for
garden-variety emotional distress—the Court will reconsider whether a mental
examination is appropriate.
Accordingly, it is ORDERED AND ADJUDGED that:
1.

Defendants’ Amended Motion for Mental Examination (Doc. 41) is
DENIED.

2.

Defendants’ Amended Motion for Enlargement of Time (Doc. 38) is
DENIED as premature.

3

DONE and ORDERED in Tampa, Florida, this 20th day of March, 2017.

Copies furnished to:
Counsel/Parties of Record

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