Sherman v. Idaho Trout Processors Company

Filing 31

MEMORANDUM DECISION AND ORDER granting 26 Motion to Compel. 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 (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CAROL SHERMAN,
Plaintiff,

Case No. 4:11-cv-00195-BLW

v.

MEMORANDUM DECISION
AND ORDER

IDAHO TROUT PROCESSORS COMPANY
dba IDAHO TROUT COMPANY,
Defendant.

INTRODUCTION
The Court has before it Defendant’s Motion to Compel Rule 35 Examination (Dkt.
28). The Court has read and fully considered the briefing and related materials submitted
by the parties, and has further determined that oral argument will not significantly aid in
its decision. Accordingly, the Court issues the following Memorandum Decision and
Order granting Plaintiff’s Motion.
BACKGROUND
Plaintiff, a former employee at Defendant’s Filer, Idaho fish processing facility,
brought this suit alleging she was terminated from her employment because of her
disability in violation of the Americans with Disabilities Act (ADA). Plaintiff alleges
that her disability stems from her arthritic knees. Compl. ¶ 6, Dkt. 1. Plaintiff further
alleges that her disability did not prevent her from performing the essential functions of

MEMORANDUM DECISION AND ORDER — 1

her employment, given reasonable accommodations, and that Defendant rebuffed her
attempts to secure such accommodations, choosing to fire her instead. Id. ¶¶ 12-13.
Defendant brings this motion to compel Plaintiff to undergo a physical
examination, termed a “Functional Capacity Assessment,” on the ground that the
examination is needed to “assess Plaintiff’s alleged disability related to her knees and
Plaintiff’s ability to perform the essential functions of her former job.” Mtn. to Compel at
5, Dkt. 26-1. The proposed examination would be performed by Scott Billing, an
occupational rehabilitation specialist, and would encompass a variety of tests designed to
assess physical vocational capacities including “work day tolerance, sitting tolerance,
standing tolerance, upper extremity tolerance, walking tolerance and positional tolerances
as well as lifting capabilities” in order to help determine “if accommodation is needed”
and “the levels of activity that an individual physically could tolerate” in the context of
vocational retraining. Decl. of Scott Billing at 1-2, Dkt. 26-4. Plaintiff suggests that the
testing will take four to five hours, based upon representations made by Defendant’s
counsel. Aff. of Counsel ¶ 4, Dkt. 28-1. There is no indication in the record that the
evaluation sought is in any way invasive or unusually painful or embarrassing.
Defendant has endeavored to make the testing as convenient as possible for Plaintiff in
terms of time and location.
Plaintiff has three primary objections to the proposed examination. First, Plaintiff
argues that the evaluation necessarily cannot produce relevant, admissible evidence,
because it has no bearing upon Plaintiff’s “claim of bilateral arthritis in her knees.” Pl.’s
Resp. at 3, Dkt. 28. Second, Plaintiff argues that Defendant failed to specify the manner,
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conditions, and scope of the examination as required by Rule 35. Third, Plaintiff argues
that Defendant has failed to demonstrate that good cause exists for ordering the
examination, because Defendant has not shown that Plaintiff is “employable given her
known conditions and circumstances.” The Court has considered each of these
arguments, and, for the reasons set forth below, has determined that they are without
merit. Accordingly, the Court will grant Defendant’s motion.
LEGAL STANDARD
Rule 35 of the Federal Rules of Civil Procedure enables a court, on motion made
upon good cause, to order a “physical or mental examination by a suitably licensed or
certified examiner” of a party “whose mental or physical condition . . . is in controversy.”
Fed. R. Civ. Proc. R. 35(a)(1), 35(a)(2)(A). The Supreme Court has stated the test for
compliance with the Rule as “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 v. Holder, 379 U.S. 104, 118 (1964). In
order to meet this test, the moving party must do more than demonstrate that the
examination will produce relevant evidence; rather, it must show “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. However, in cases in which
the Plaintiff has placed her own physical or mental condition “clearly in controversy,”
reference to the allegations in the pleadings may be enough. Id at 119.1 In such cases, the

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The paradigm example of such a case would be one for damages stemming from personal injury
allegedly caused by Defendant’s negligence. Schlagenhauf, 379 U.S. at 119.
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“good cause” requirement is satisfied by the central importance of the evidence sought to
be obtained to the determination of the merits of Plaintiff’s claim. Id.
ANALYSIS
I.

The requested examination may yield relevant evidence.
Plaintiff argues that because the desired examination is not capable of shedding

light upon the existence or nonexistence of a specific disability – Plaintiff’s bilateral
arthritis – it cannot produce evidence relevant to the case. To the extent this argument
suggests that Plaintiff’s physical vocational capacities are not in controversy, the
argument is unpersuasive. Plaintiff’s claim, and any defenses to it, do not necessarily
depend solely upon whether Plaintiff suffers from bilateral arthritis; rather, it also turns
on whether she is “disabled” within the meaning of the ADA. Moreover, even if the
Defendant concedes that Plaintiff has arthritis, the Defendant may defend against
Plaintiff’s ADA claim either by showing that Plaintiff’s arthritis did not rise to the level
of a disability, or that her arthritis was so severe and so constraining that it rendered her
unqualified to continue in her employment, with or without an accommodation.
Thus, Plaintiff has placed her physical vocational capacities in controversy, and
the requested Functional Capacity Assessment, which is designed to assess precisely
those capacities, may yield information directly relevant to the merits of Plaintiff’s
claims, to the extent of her damages, and to the existence of any defenses. Decl. of Scott
Billing at 1-2, Dkt. 26-4.
II.

Defendant’s motion satisfies the Schlagenhauf test.
As indicated above, the Court has no trouble concluding that Plaintiff’s physical

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condition as it relates to her vocational capacities is in controversy, and Defendant has
met its burden in that respect. Def.’s Mtn. to Compel at 3-4, Dkt. 26-1. Moreover, the
“good cause” requirement is satisfied by the very fact that the existence and extent of
Plaintiff’s physical capacities are squarely at issue in this case. Schlagenhauf, 379 U.S. at
119. Defendants have therefore made the showings required by Rule 35.
III.

A qualifying order can be drafted.
Plaintiff also argues that Defendant failed to provide sufficient information

concerning the manner, conditions, and scope of the proposed examination to enable the
Court to draft an order sufficiently detailed so as to satisfy Rule 35(a)(2)(B) (stating that
the order “must specify the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it.”) This argument, too,
is unpersuasive.
Although somewhat generic, the examiner’s Declaration adequately describes the
manner, conditions, and scope of the proposed examination. The examiner explains that
he will conduct a Functional Capacity Assessment, which is designed to identify the
current capacities of the plaintiff. Decl. of Scott Billing at 1-2, Dkt. 26-4. He explains
that the capacities will be determined based upon consistencies and inconsistencies when
interfacing grip dynamometer graphing, pinch dynamometer graphing, heart rate
variations, weights achieved, and selectivity of pain reports and pain behaviors. He then
gives the identified current capacities, and notes that they are useful in determining if an
individual has the current capacity required to return to gainful employment or if an
accommodation is needed. This is sufficient to fulfill the manner, conditions, and scope
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requirements and to satisfy Rule 35(a)(2)(B). Moreover, and contrary to Plaintiff’s
suggestion, there is no requirement in Rule 35 that the order must separately set forth the
time, place, manner, conditions, and scope of each component of the examination.
IV.

Defendant need not show that Plaintiff is employable in order to show good
cause for the examination.
Plaintiff argues that if Defendant cannot demonstrate that Plaintiff, given not only

her arthritic knees but also her age, education, and obesity, is “employable” in the first
instance, then the proposed examination, which is designed to measure present physical
vocational capacities, could not provide useful information, and hence there is no good
cause to order it. To the extent it can be understood, this argument appears to be largely a
restatement of Plaintiff’s failed relevance argument, and it is rejected for the reasons
stated above.
ORDER
IT IS ORDERED:
1.

Defendant’s Motion to Compel Rule 35 Examination (Dkt. 26) is
GRANTED.

2.

Plaintiff is hereby ordered to appear for a Functional Capacity Assessment
at the St. Luke’s affiliated clinic in Twin Falls, Idaho, on April 12, 2012, at
9:00 a.m. Defendant’s counsel shall provide the address to Plaintiff’s
counsel if necessary. The assessment shall be conducted by Scott Billing,
Director of Occupational Rehabilitation, and shall comport, in its manner

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and scope, with the representations contained in his Declaration (Dkt. 264).

DATED: April 9, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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