Doe I et al v. Boy Scouts of America et al

Filing 230

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs shall make themselves available for Defendants Rule 35 examinations for up to twelve hours over two days. 2. Defendants shall conduct a single Rule 35 examination for each Plaintiff, rand s hall introduce no more than one report and testifying expert for each Plaintiff. 3. Defendants shall cover the costs for Plaintiffs travel, hotel, and meals. 4. All dispositive motions shall be filed by 2/8/2018. All discovery shall be completed by 1/18/2018 (Discovery due by 1/18/2018. Dispositive Motions due by 2/8/2018). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN DOES I-XIX, and JOHN
ELLIOTT,

Case No. 1:13-cv-00275-BLW

Plaintiffs,

MEMORANDUM DECISION AND
ORDER

v.
BOY SCOUTS OF AMERICA, a
congressionally chartered corporation
authorized to do business in Idaho;
CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, a
foreign corporation sole registered to do
business in Idaho; and CORPORATION
OF THE PRESIDENT OF THE
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS AND
SUCCESSORS, a foreign corporation
registered to do business in Idaho,
Defendants.

INTRODUCTION
The Court has before it the parties’ briefs regarding the scope and duration of
Defendants’ FRCP 35 Examinations. Defendants have proposed two separate Rule 35
Examinations for each Plaintiff, one by a psychologist and one by a psychiatrist, to be

MEMORANDUM DECISION AND ORDER - 1

conducted over fourteen hours, on two separate days.1 Plaintiffs’ have objected to
Defendants proposal to do two exams, and to take more than ten hours over one day to
examine each Plaintiff. For the reasons explained below, the Court orders that
Defendants’ shall be allowed a single Rule 35 Examination for each Plaintiff, which shall
take place for up to twelve hours over two days.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a court “may order a party whose
mental or physical condition . . . is in controversy to submit to a physical or mental
examination by suitably licensed examiner” upon a showing of good cause. Fed. R. Civ.
P. 35(a). Courts have broad discretion to “structure the time and manner of medical
examinations.” Nicholas v. Wyndham Intern., 218 F.R.D. 122 (D.V.I. 2003). Like other
rules of discovery, Rule 35 should be construed liberally in favor of an examination, but
the Court must “balance the right of the party to be examined to avoid personal invasion
against the moving party’s right to a fair trial.” Franco v. Boston Scientific Corp., 2006
WL 3065580 (N.D. Cal. Oct. 27, 2006).
ANALYSIS
The parties do not dispute that Plaintiffs’ mental condition is in issue, nor do they
question whether good cause exists for Defendants to conduct a Rule 35 examination of

1

In Defendants’ brief, they request two and a half days to conduct Rule 35 exams of each
Plaintiff. Defendants previously represented to the Court and to Plaintiffs that they are willing to limit
their examinations to fourteen hours over two days.

MEMORANDUM DECISION AND ORDER - 2

each of the Plaintiffs. Instead, this dispute centers over the length of the examination, and
whether Defendants are entitled to conduct two separate interviews by two separate
examiners, in addition to a written exam, and produce two separate reports for each
Plaintiff.
At the outset, the Court rejects Defendants’ suggestion that their proposal –
allowing their psychologist to conduct a written exam and an interview, and allowing
their psychiatrist to conduct a separate interview exam – constitutes a single Rule 35
exam. Their argument in that regard defies logic. Using two mental health professionals
to conduct two separate interviews, particularly when they will prepare two separate
reports, and offer two opinions at trial, does not sound like a single Rule 35 exam. The
Court will thus consider whether it is proper to subject each Plaintiff to two separate Rule
35 exams.
While there is no Ninth Circuit precedent determinative of whether Defendants are
entitled to conduct two exams, the Court finds that persuasive authority exists to support
Plaintiffs’ contention that two exams are not warranted in this case. See Vopelak v.
Williams, 42 F.R.D. 387, 389 (N.D. Ohio 1967) (“It seems fair to say that under certain
circumstances, a second examination is authorized by the rule, but the court should
require a stronger showing of necessity before it will order such repeated examination.”).
The Court agrees with Defendants that they are “entitled to a ‘balanced opportunity’ to
rebut” Plaintiffs’ reports. Def.’s Br. at 2, Dkt 228 (citing Halliday v. Spjute, 2015 WL
3988903, at *2-3 (E.D. Cal. June 30, 2015). But Defendants have provided no evidence,

MEMORANDUM DECISION AND ORDER - 3

nor any authority for why they should be entitled to conduct two examinations. Plaintiffs
are each submitting a single report, authored by a single testifying witness, which covers
a single written examination and single interview examination. While Defendants have
provided evidence that the substance of their proposed interviews will not substantially
overlap, they have not made a strong showing as to why a second interview, or separate
reports by separate testifying experts, are necessary to rebut Plaintiffs’ expert testimony.
As to the duration of the examinations, the Court recognizes that the proposed
Rule 35 examinations present a substantial emotional burden to the Plaintiffs. The Court
acknowledges that discussing the abuse underlying Plaintiffs claims may be difficult,
traumatizing, and mentally and emotionally exhausting. But while some courts have
limited defense examinations to a single day in similar cases, see Pl.’s Br. at 2, Dkt. 227,
there is no rule preventing the Court from exercising its discretion to allow a Rule 35
exam to take place over multiple days, upon a showing of good cause.
Here, Defendants have offered good cause as to why their experts need two days
to conduct an appropriate examination of plaintiffs, including a desire to ensure the
parties have the flexibility necessary to complete each portion of the examination, as well
as to provide time for adequate breaks. The Court recognizes that Plaintiffs may find
examination by defense experts to be antagonistic, but there is no evidence that
Defendants’ experts are anything but neutral practitioners. The Court assumes defense
experts will conduct Plaintiffs’ examinations with the same professionalism and care as

MEMORANDUM DECISION AND ORDER - 4

they would any other patient. Thus, the Court declines to limit Defendants examinations
to a single day.
As such, the Court will allow Defendants to conduct examinations lasting up to
twelve hours over two days. As discussed above, however, Defendants are only allowed a
single examination, consisting of a written session and an interview session, for each
Plaintiff. On the basis of this examination, Defendants are allowed to introduce a single
report by a single testifying expert. Defendants may determine the structure of their
examination within these parameters, e.g., whether they intend to have their psychologist
conduct a written examination and their psychiatrist conduct an interview, or whether
they intend to have one expert conduct both portions of the examination. Defendants shall
also cover Plaintiffs’ costs for travel, food, and lodging, as agreed by the parties.
Defendants were obligated to postpone the scheduling of Rule 35 examinations
pending resolution of this dispute, and have proposed amending the Case Management
Order (Dkt. 139) to allow for extra time to complete expert discovery. As such, the Court
finds that the deadlines for completing discovery and filing dispositive motions shall be
extended thirty (30) days.
ORDER
IT IS ORDERED:
1.

Plaintiffs shall make themselves available for Defendants’ Rule 35

examinations for up to twelve hours over two days.

MEMORANDUM DECISION AND ORDER - 5

2.

Defendants shall conduct a single Rule 35 examination for each Plaintiff,

rand shall introduce no more than one report and testifying expert for each Plaintiff.
3.

Defendants shall cover the costs for Plaintiffs’ travel, hotel, and meals.

4.

All dispositive motions shall be filed by February 8, 2018. All discovery

shall be completed by January 18, 2018.

DATED: September 22, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 6