Doe 1 et al v. City of Chicago
Filing
203
MEMORANDUM Opinion and Order: For the reasons stated in the Court's Memorandum Opinion and Order, Defendant's Motion to Compel Mental Examinations of Plaintiffs Pursuant to Federal Rule of Civil Procedure 35 183 is granted. See attached Memorandum Opinion and Order for further details. Signed by the Honorable Sunil R. Harjani on 5/10/2019. Mailed notice (ber, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JANE DOES 1-5,
Case No. 18-cv-03054
Plaintiffs,
v.
Magistrate Judge Sunil R. Harjani
CITY OF CHICAGO, a municipal
Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s motion to compel Rule 35 mental
examinations of Plaintiffs by its rebuttal expert, a licensed clinical psychologist named Dr. Diana
S. Goldstein. Doc. [183]. Plaintiffs oppose the motion and contend that the time for fact
discovery has passed, the mental examinations are unnecessary, and that Defendant has failed to
show good cause for the mental examination. For the reasons that follow, Defendant’s motion is
granted.
Under Rule 35, the “court . . . may order a party whose mental or physical condition . . .
is in controversy to submit to a physical or mental examination by a suitably licensed or certified
examiner.” Fed. R. Civ. P. 35(a)(1). To warrant an order for Rule 35 mental examinations, the
moving party must show good cause on notice to all parties and the person to be examined and
must specify the time, place, manner, conditions, and scope of the examination, as well as the
person or persons who will perform it. Fed. R. Civ. P. 35(a)(2)(A)-(B).
Here, Plaintiffs allege that Defendant caused them to suffer severe emotional distress, and
they also seek damages to remedy their alleged emotional distress. See, e.g., Doc. [1] at ¶¶ 84,
231, 303, 380, and 434 (alleging harassment that “seriously affected” Jane Doe 1-5’s
“psychological well-being.”). Furthermore, Plaintiffs obtained a psychologist to serve as an
expert witness, Dr. Angela Lawson, who evaluated each Plaintiff and submitted expert reports on
each Plaintiff. See Doc. [191] at 5-7; see also Doc. [184] at 3. Thus, Defendant brings this
motion because it desires to have its own rebuttal expert independently evaluate each Plaintiff.
Plaintiffs’ leading objection is that this motion is untimely because it was filed on the
day fact discovery closed, although before the deadline for rebuttal expert disclosure lapsed. See
Rule 26(a)(2)(D)(ii). Rule 35 does not set forth when a demand for a mental examination must
be made. Instead, the Rule provides that a court may grant a request for a mental examination
whenever a case is “pending.” Fed. R. Civ. P. 35(a)(1). Plaintiffs unpersuasively rely on a
factually distinguishable case where a court denied a motion for a Rule 35 examination that was
filed after the close of both fact and expert discovery. See Briesacher v. AMG Resources, Inc.,
No. 2:03-cv-331, 2005 WL 2105908 at *1-2 (N.D. Ind. Aug. 31, 2005). Indeed, there is no
“bright-line rule requiring that requests for Rule 35 examinations must always be brought before
the close of fact discovery.” Walti v. Toys R Us, No. 10 C 2116, 2011 WL 3876907, at *4 (N.D.
Ill. Aug. 31, 2011), objections overruled, No. 10 CV 2116, 2011 WL 4715198 (N.D. Ill. Oct. 6,
2011). Courts have wide discretion in discovery matters, including orders pertaining to Rule 35
examinations. Cf. Miksis v. Howard, 106 F.3d 754, 758–59 (7th Cir. 1997) (holding that the trial
court did not abuse its discretion in denying a request for a Rule 35 examination made after the
close of fact discovery but before the end of the expert disclosure period); see also Walti, 2011
WL 4715198 (N.D. Ill. Oct. 6, 2011) (commenting on Miksis and confirming the magistrate
judge’s order granting Rule 35 examination). In evaluating a court’s discretion in discovery
matters, the Supreme Court has held, in the context of Rule 35, “that the deposition-discovery
rules are to be accorded a broad and liberal treatment . . . to effectuate their purpose that civil
trials in the federal courts no longer need to be carried on in the dark.” Schlagenhauf v. Holder,
379 U.S. 104, 114 (1964) (internal citations and quotations omitted). “As a result, district courts
have granted or denied motions under Rule 35 depending on the facts in the particular cases.”
Walti, 2011 WL 3876907 at *4 (collecting cases). It is not uncommon for a district court to
order a Rule 35 examination after the close of fact discovery. See, e.g., id.; Walton v. N.C. Dept.
of Agric. and Consumer Servs., No. 09-cv-302 FL, 2011 WL 883579 at *3 (E.D.N.C. Mar.11,
2011) (compelling Rule 35 examinations to take place after discovery cutoff); Impey v. Office
Depot, Inc., No. C09–1973, 2010 WL 2985071, at *19–21 (N.D.Cal. July 27, 2010) (granting a
motion to compel Rule 35 examination filed two months after close of fact discovery where
plaintiff's expert examination also took place after close of fact discovery). For example, in
Walti, the court ordered Rule 35 examinations after the close of fact discovery even though the
defendant/movant knew that the plaintiff’s mental state was at issue from the inception of the
case, had records from plaintiff’s treating professionals, and knew that fact discovery would
close before it received expert disclosures and reports. Id. Walti reasoned that the information
gained by the moving party at the deposition of a plaintiff’s treating professionals provided a
reasonable basis for a late request for a Rule 35 examination.
The facts here are like Walti. Plaintiffs only recently named a psychologist, Dr. Lawson,
as an expert witness. See Doc. [184] at 3. True, Defendant could have requested Rule 35 mental
examinations earlier in this case. But the record and the emails attached to Defendant’s motion
suggest that Plaintiffs’ counsel led the Defendant to believe that they were agreeable to mental
examinations by a rebuttal witness without judicial intervention. See Doc. [184-1]. These emails
show that, prior to the close of fact discovery, counsel for both parties were coordinating
appointment times for Plaintiffs to meet with Dr. Goldstein. Doc. [184-1]. Similarly, Plaintiffs
had at one point conveyed to the Court that Plaintiffs were “in the process of scheduling
meetings with all 5 Plaintiffs and the Defense counsel’s rebuttal expert. Plaintiffs’ counsel has
provided all necessary information and documentation to effectuate these meetings.” Doc. [173]
at 4. That process, unfortunately, broke down, necessitating judicial intervention. Thus,
Defendant’s delay until the last day of fact discovery to file the motion to compel Rule 35
examinations was reasonable.
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Defendant’s request also comes shortly after Plaintiffs recently produced their expert’s
report. Walti found that an even later Rule 35 motion was appropriate where the defendant’s
desire for a Rule 35 mental examination was triggered after it gained information at the
plaintiff’s treating professional’s deposition. Walti, 2011 WL 3876907 at *5 (“information that
[the defendant] gained at the depositions of Walti's treating professionals provides a reasonable
basis for [the defendant’s] request for the Rule 35 examination it seeks.”). Thus, as a rebuttal
expert witness, it is reasonable for the Defendants to disclose Dr. Goldstein after receiving the
Plaintiffs’ expert report.
Next, Plaintiff contends that Defendant’s motion should be denied because Defendant
failed to show good cause under Rule 35 for the mental examinations. As mentioned above, to
warrant an order for Rule 35 mental examinations, the moving party must show good cause on
notice to all parties and the person to be examined and must specify the time, place, manner,
conditions, and scope of the examination, as well as the person or persons who will perform it.
Fed. R. Civ. P. 35(a)(2)(A)-(B). The Supreme Court 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 (1964). To meet the standard, the moving party must show more than “mere
conclusory allegations of the pleadings” or “mere relevance to the case.” EEOC v. Costco
Wholesale Corp., No. 14 C 6553, 2015 WL 9200560, at *13 (N.D. Ill. Dec. 15, 2015) (quoting
Schlagenhauf, 379 U.S. at 118). This requires “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.
Defendant has demonstrated that good cause exists. First, as discussed above, Plaintiffs’
mental health is a pivotal issue in this case. Although pleadings alone are not necessarily
indicative that good cause exists, “there are situations where the pleadings alone are sufficient to
meet these requirements.” Schlagenhauf, 379 U.S. at 119. Schlagenhauf provides the example of
a “plaintiff in a negligence action who asserts mental or physical injury” as one situation where a
plaintiff “places that mental or physical injury clearly in controversy and provides the defendant
with good cause for an examination to determine the existence and extent of such asserted
injury.” Id. In Schlagenhauf, Rule 35 examinations were denied because Schlagenhauf “did not
assert his mental or physical condition either in support of or in defense of a claim. His
condition was sought to be placed in issue by other parties.” Id. at 119-20. Unlike Schlagenhauf,
Plaintiffs allege that their mental health is of critical importance in both the Complaint and
through the Plaintiffs’ own discovery strategy. See, e.g., Doc. [1] at ¶¶ 84, 231, 303, 380, and
434 (alleging that harassment “seriously affected” Jane Doe 1-5’s “psychological well-being.”).
Further, in recognizing the important role of Plaintiffs’ mental health in this case, Plaintiffs
obtained their own mental health expert witness, a psychologist, who evaluated each Plaintiff
and submitted expert reports on each Plaintiff. See Doc. [191] at 5-7; see also Doc. [184] at 3.
Finally, and contrary to Plaintiffs’ contention, Defendant is not required to only rely on the data
and observations made by Plaintiffs’ expert witness. Defendant is entitled to a reasonable
opportunity to test those conclusions by using standardized or peer-reviewed psychological
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examinations. See Walti, 2011 WL 3876907 at *5 (internal citation omitted). Accordingly, this
Court finds that Plaintiffs’ mental condition is in controversy and that Defendant’s motion was
made with good cause under Rule 35.
Defendant’s motion also specified the time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will perform it under Fed. R. Civ. P.
35(a)(2)(B). Defendants propose specific times for Plaintiffs’ mental examinations with Dr.
Goldstein. See Doc. [184] at 6. Emails between counsel additionally show that the parties
discussed available times for appointments with Defendant’s rebuttal expert. See Doc. [184-1] at
3-4. The examinations are to be performed at the office of Dr. Goldstein, Isaac Ray Forensic
Group, LLC, 65 E. Wacker Place, Suite 2240, Chicago, Illinois 60601. See Doc. [184] at 6.
Defendant also identified the person or persons who will perform the examination -- Dr.
Goldstein and her staff. See Doc. [184] at 5; see also Doc. [184-2]. The manner, conditions, and
scope of the examination are also thoroughly detailed in the motion. See Doc. [184] at 4-6.
Plaintiff argues that the scope of Dr. Lawson’s examinations are too broad. See Doc.
[191] at 11 (“cognitive battery tests are beyond the scope . . . and Defendant has failed to show
good cause as to why this Court should compel Plaintiffs to undergo this type of testing.”). The
Court has reviewed the tests that Dr. Goldstein has identified and notes that they are all peerreviewed psychological and neurological tests used to assess an individual’s mental health. Doc.
[184] at 5. Therefore, the Court holds the proposed scope is reasonable and appropriate.
Plaintiffs alternatively request several limitations to Dr. Goldstein’s Rule 35
examinations, but do not provide any authority in support of their requested limitations. First,
Plaintiff objects to Dr. Goldstein interviewing the patients as part of her mental health
examination. The Court will not micro-manage how Dr. Goldstein, a licensed medical
professional skilled in her field, chooses to perform her testing. However, the Court orders the
parties to meet and confer, and to properly identify how many hours is actually needed for the
interviews, as the current request for a full-day for each Plaintiff appears to be unnecessary and
excessive. Second, Plaintiffs request that any testing must be done by Dr. Goldstein exclusively
and unassisted by her staff. The Court orders the parties to again meet and confer on this issue,
and to the extent possible, request that Dr. Goldstein conduct the examinations herself in order to
reduce the number of expert depositions.
For the foregoing reasons, Defendant’s Motion to Compel Mental Examinations of
Plaintiffs Pursuant to Federal Rule of Civil Procedure 35 [183] is granted.
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SO ORDERED.
Dated: May 10, 2019
Sunil R. Harjani
United States Magistrate Judge
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