JH v. Munster School Town of et al

Filing 51

OPINION AND ORDER granting 47 Motion to Compel a Trial Rule 35 Psychological Examination. Signed by Magistrate Judge Paul R Cherry on 8/5/14. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
J.H.,
Plaintiff,
v.
SCHOOL TOWN OF MUNSTER, et al.,
Defendants.

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CAUSE NO.: 2:12-CV-69-PPS-PRC

OPINION AND ORDER
This matter is before the Court on a Motion to Compel a Trial Rule 35 Psychological
Examination [DE 47], filed by Defendants School Town of Munster, William Pfister, Steven L.
Tripenfeldas, Michael Smith, and Matthew Pavlovich on July 14, 2014. Plaintiff filed a response on
July 23, 2014, and Defendants filed a reply on July 30, 2014.
Rule 35 provides that a 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). It further provides that a court may only order an examination
“on motion for good cause.” Fed. R. Civ. P. 35(a)(2)(A). These two provisions constitute the “in
controversy” and “good cause” requirements of Rule 35. See Schlagenhauf v. Holder, 379 U.S. 104,
118 (1964). Thus, before a court may compel a party to submit to a mental or physical examination
under Rule 35, the movant must demonstrate (1) that the party’s mental or physical condition is
actually in controversy and (2) that there is good cause for the examination. Id. at 118-19.
Additionally, a court order compelling an examination under Rule 35 “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)(B).

In this case, the parties agree that Plaintiff’s mental and emotional health is at issue. Thus,
the Court finds that Plaintiff’s mental condition is in controversy. The Court also finds good cause
for ordering a Rule 35 mental examination of Plaintiff. In his Complaint, filed on February 13, 2012,
Plaintiff claims that alleged “hazing” by some members of the Munster High School swim team
adversely affected his mental health. Plaintiff testified that actions of fellow team members caused
him depression, anxiety, and suicidal thoughts as well as mental and emotional distress. Plaintiff
disclosed an expert psychologist, Beth N. Rom-Rymer, Ph.D., to address this element of damages.
Dr. Rom-Rymer conducted a forensic evaluation interview and testing on June 28, 2012, from 2:30
p.m. to 5:30 p.m., and June 29, 2012, from 9:00 a.m. to 5:00 p.m. She diagnosed Plaintiff with an
exacerbation of a general anxiety disorder that pre-dated any alleged hazing events and depression.
Defendants have retained David E. Hartman, Ph.D., a neuropsychologist licensed in Illinois
and New Mexico, to conduct a Trial Rule 35 examination of Plaintiff. Dr. Hartman is engaged in
the private practice of clinical, forensic, and medical neuropsychology and clinical psychology.
The parties have agreed to work on a mutually convenient date, and the examination will
take place between the hours of 9:00 a.m. and 4:00 p.m. by Dr. Hartman at his office in Chicago,
Illinois.
The areas of disagreement precipitating this motion are (1) whether the examination should
be videotaped and (2) the articulation of the scope of the examination. The Court considers each in
turn.
1.

Videotaping of Rule 35 Psychological Examination
Plaintiff asks that the psychological examination by Dr. Hartman be videotaped because Dr.

Hartman may be “defendant friendly” and because Plaintiff is vulnerable and does not trust

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Defendants. (Pl. Resp. 6). Defendants object, arguing that Dr. Hartman does not allow third party
observation or videotape recording of his examinations, Dr. Hartman is a reputable and objective
professional, and Plaintiff is now a successful college student capable of participating in the
examination without supervision.
In Zabkowicz v. West Bend Co., a case from 1984 cited by Plaintiff, the court denied a
defendant’s motion to compel a psychological examination without the presence of a third person
or a recording device, reasoning that “in the context of an adversary proceeding, the plaintiffs’
interest in protecting themselves from unsupervised interrogation by an agent of their opponents
outweighs the defendants’ interest in making the most effective use of their expert.” 585 F. Supp.
635, 636 (E.D. Wis. 1984).
However, more recently, courts have held that, in its discretion, a court may permit the
presence of a recording device at the Rule 35 examination but that there is no absolute right to the
use of a recording device. See Newman v. Gaetz, No. 08-C-4240, 2010 WL 4928868, at *1 (N.D.
Ill. Nov. 2, 2010); see also Haymer v. Countrywide Bank, FSB, No. 10 C 5910, 2013 WL 657662,
at *6-7 (N.D. Ill. Feb. 22, 2013) (rejecting the plaintiff’s argument that “an unsupervised
examination could easily be conducted in biased fashion, exceed the limits of the Court-ordered
exam, or could be transformed into a de facto deposition where plaintiff is not represented by
counsel”); Stefan v. Trinity Trucking, LLC, 275 F.R.D. 248, 250 (N.D. Ohio 2011); Heath v.
Isenegger, 2:10cv175, 2011 WL 2610394, at *2 (N.D. Ind. July 1, 2011); Frazier v. Nash-Finch Co.,
3:10-CV-45, 2011 WL 294875, at *2 (N.D. Ind. Jan. 25, 2011); Scheriff v. C.B. Fleet Co., Inc., 2008

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WL 2434184, at *1 (E.D. Wis. June 16, 2008); Morrison v. Stephenson, 244 F.R.D. 405, 406 (S.D.
Ohio 2007); EEOC v. Grief Bros. Corp., 218 F.R.D. 59 (W.D.N.Y 2003).1
In this case, Plaintiff has not identified any basis that would persuade the Court to order that
the examination be video recorded. The Court assumes that Dr. Hartman is professional and
independent, notwithstanding the fact that he has been hired by defense counsel. Moreover, Dr.
Hartman is bound by medical ethics to use his medical judgment to evaluate Plaintiff. See Haymer,
2013 WL 657662, at *7 (citing Hart v. Roundy’s Supermarkets, Inc., 10-C-824, 2011 WL 3687622,
at *2 (E.D. Wis. Aug. 23, 2011)). Dr. Hartman has provided a sworn affidavit stating that “[h]aving
a third party present and/or video recording a session were not factors considered in establishing the
normative standards of the test[s]” and that variations caused by the presence of a third party cannot
be predicted in advance nor adjusted after the fact. (Def. Br., Exh. C, 4.a). He further states that
video recording is disruptive to both the examiner and the examinee and affects how examinees
portray themselves. Id. at 4.b.
Although counsel for Plaintiff notes in his response brief that in 80% of the cases in which
he has been retained as an expert, Dr. Hartman was hired by the defendants, attempting to suggest
that Dr. Hartman may be biased, counsel for Defendants notes in the reply brief that Dr. RomRymer, Plaintiff’s expert, testified for the defendant ten out the twelve times from 2010 through
2014. The Court is not persuaded that the statistics call for the intrusion of a videographer during
the examination in this case. Moreover, Dr. Hartman and Dr. Rom-Rymer have agreed to exchange

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In his brief, Plaintiff cites McDonald v. Southworth, 1:07-CV-217, 2008 WL 2705557, at *7 (S.D. Ind. July
10, 2008). First, McDonald concerned a physical examination. Second, the Court allowed the plaintiff to engage a
videographer to record the examination with no analysis, and there is no indication that any request by the plaintiff to
video record the examination was opposed by the defendant. Plaintiff also cites Jacob v. Chaplin, 639 N.E.2d 1010 (Ind.
1994), as persuasive authority. Like the court in Frazier v. Nash-Finch Co., 3:10-CV-45, 2011 WL 294875, at *2 (N.D.
Ind. Jan. 25, 2011), the Court declines to follow Jacob.

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their raw data from their examinations. Dr. Hartman will issue a report, will be available for
deposition, and will be present at trial for cross-examination. Also, Plaintiff is now a twenty-year
old honor student at Indiana University, who anticipated at his deposition that his grade point
average would be 3.9 or better out of 4.0, and who will be a sophomore this fall.
Therefore, the Court orders that the Rule 35 examination of Plaintiff by Dr. Hartman not be
recorded by a videographer.
2.

Scope of Rule 35 Psychological Examination
In correspondence prior to the filing of this motion, counsel for Plaintiff asked that the scope

of the examination be articulated by Dr. Hartman and agreed upon in advance of the examination.
See (Def. Br., Exh. D). In response, counsel for Defendant communicated that Dr. Hartman advised
that the psychological examination will include an interview, paper and pencil tests, and tests given
in a computer format and that Dr. Hartman will choose the tests he administers based on what
Plaintiff tells him during the interview. Dr. Hartman indicated that Plaintiff will not be permitted
to write down questions asked during the examination. Plaintiff will be allowed to request a break
at any time, which Dr. Hartman will accommodate as soon as he is finished with a line of
questioning. Plaintiff may have a family member in an outer room, but Dr. Hartman asks that
Plaintiff not communicate with anyone about the examination while on a break if the break is taken
during the course of an examination. Once an examination is complete, Plaintiff is free to talk about
the examination with his family member, his attorney, or anyone else as long as he does not provide
memorized test content.
Contrary to Plaintiff’s argument, the Court finds that Dr. Hartman’s Affidavit does not state
that he intends to conduct an “unfettered deposition” of Plaintiff. (Pl. Br. 3). The references to

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Plaintiff’s deposition were made in the context of Dr. Hartman’s statement that he should not be
limited in his examination to the questions posed during Plaintiff’s deposition and in explaining that
a psychological examination is conducted differently from legal questioning during a deposition.
The Court expects Dr. Hartman to act professionally and not submit Plaintiff to any unnecessary
testing.
Other than broadly stating that Defendants have not identified the scope of the examination,
Plaintiff has not argued what additional information should be provided nor has Plaintiff cited any
case law in support of a more specific description of the scope of a psychological examination of
this kind. The Court finds that Dr. Hartman has sufficiently indicated the scope of his examination
through his Affidavit. See Frazier, 2011 WL 294875, at *2; see also Denny v. Wingspan Portfolio
Advisors, LLC, 3:11-CV-1094, 2013 WL 2434572, at *3 (N.D. Tex. June 5, 2013) (denying
Plaintiff’s request to limit the scope of a forensic psychological examination).
The Court orders that the scope of the examination be limited to a psychological examination
conducted according to Dr. Hartman’s professional judgment and within the parameters set forth in
Dr. Hartman’s Affidavit.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the Motion to Compel a Trial Rule 35
Psychological Examination [DE 47] and ORDERS Plaintiff J.H. to submit to a psychological
examination that
(1)

may not be videotaped or otherwise mechanically recorded;

(2)

is conducted according to Dr. Hartman’s professional judgment;

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(3)

is conducted between the hours of 9:00 a.m. and 4:00 p.m. on a date that is mutually
convenient to the parties;

(4)

allows Plaintiff to request a break when necessary and that Dr. Hartman
accommodate him as soon as possible after completing a current line of questioning;
and

(5)

allows Plaintiff to have a family member present in an outer room and that Plaintiff
be able to speak with that family member, his attorney, or anyone else on a break but
that, if the break occurs during the administration of an examination, Plaintiff will
not discuss the examination with anyone until the examination is complete.

SO ORDERED this 5th day of August, 2014.

s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES MAGISTRATE JUDGE
cc:

All counsel of record

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