CUSACK v. RM DAVIS INC

Filing 35

ORDER ON MOTION TO CONDUCT MENTAL EXAMINATION By MAGISTRATE JUDGE KAREN FRINK WOLF. (clp)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MATTHEW CUSACK,
Plaintiff
v.
R.M. DAVIS, INC.,
Defendant

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No. 2:22-cv-00286-LEW

ORDER ON MOTION TO CONDUCT MENTAL EXAMINATION
At the request of defendant R.M. Davis, Inc., I held a discovery dispute hearing
on May 28, 2024, concerning plaintiff Matthew Cusack’s withdrawal of voluntary
consent to an independent mental examination by Dr. Carlyle Voss. See ECF Nos.
32-34. Treating the dispute as an oral motion by R.M. Davis for an order permitting
the examination pursuant to Federal Rule of Civil Procedure 35, I grant the motion
for the reasons that follow.
I. Background
Cusack was employed as a Data Management Administrator by R.M. Davis, a
wealth and investment management firm located in Portland, Maine, from
September 18, 2017, to August 30, 2019.

First Amended Complaint (FAC)

(ECF No. 4) ¶¶ 4-5. Cusack had served in the United States Air Force from 2005 to
2009, injuring his knees during basic training. Id. ¶ 10. The injury has progressively
worsened, affecting his mobility and causing chronic pain that interferes with his

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sleep, as well as insomnia and depression. Id. ¶¶ 10-11. The U.S. Department of
Veterans Affairs has rated him sixty percent disabled. Id. ¶ 12.
Prior to joining R.M. Davis, Cusack became homeless and was hospitalized for
depression. Id. ¶¶ 18-19. With the help of a Veteran’s Inc. employment and training
program, he was able to secure employment at R.M. Davis, turn his life around, and
stabilize his mental health. Id. ¶¶ 19-20. His first year of employment with R.M.
Davis was successful, and he received positive reviews. Id. ¶¶ 28, 30-31. However,
the relationship soured, culminating in R.M. Davis’s termination of his employment
on August 30, 2019. Id. ¶¶ 32-69. In its termination letter, R.M. Davis explained
that it had fired Cusack because he “had difficulty accepting direction” and
“expressed impatience and frustration with various organizational decisions.” Id.
¶ 69 (cleaned up).
In the wake of the Court’s partial grant of a motion by R.M. Davis to dismiss
seven of the FAC’s nine counts, the following claims remain: Count I (discrimination
based on status as a veteran in violation of the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. §§ 4301(a)(3), 4311(a), (c)(1)); Counts V and VI
(discrimination based on disability in violation of the Americans with Disabilities Act,
42 U.S.C. § 12112(a), and the Maine Human Rights Act, 5 M.R.S. § 4572; (3) Count
VII (retaliation for engaging in conduct protected by the Maine Whistleblower
Protection Act, 26 M.R.S. §§ 833, 834-A); and (4) Counts VIII and IX (violation of
Maine’s wage and hour laws pertaining to overtime pay and timely and full payment

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of wages, 26 M.R.S. §§ 621-A, 626, 664, 670). See MTD Decision (ECF No. 15) at 7-16;
FAC ¶¶ 83-88, 107-35.
II. Legal Standard
Pursuant to Fed. R. Civ. P. 35(a), a court may, upon a showing of good cause,
“order a party whose mental . . . condition . . . is in controversy to submit to a . . .
mental examination by a suitably licensed or certified examiner.” Any such order
“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).
“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 . . .
examination . . . has adequately demonstrated the existence of the Rule’s
requirements of ‘in controversy’ and ‘good cause,’ which requirements . . . are
necessarily related.” Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964). This
analysis is highly contextual: “what may be good cause for one type of examination
may not be so for another.” Id. at 118.
III. Discussion
During the hearing on the parties’ discovery dispute, R.M. Davis’s attorney
William Wahrer explained that his client sought an independent medical
examination because Cusack alleges that his severe emotional distress was
exacerbated by R.M. Davis’s conduct and, although Cusack self-reported in an
interrogatory answer that he has a personality disorder, nothing in Attorney
Wahrer’s review of records produced in discovery confirmed such a diagnosis.

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Attorney Danielle Quinlan, appearing on behalf of Cusack, explained that her
client became wary and withdrew his voluntary consent to the examination because
he was not sure what it would entail. Attorney Wahrer represented that, in addition
to reviewing Cusack’s medical/psychological history, Dr. Voss would interview him
and assess his current mental status.

Attorney Wahrer estimated that the

examination, which would be conducted through Zoom, would last no more than two
and a half hours. He did not perceive a need for the presence of a support person for
Cusack, and Attorney Quinlan agreed that none was necessary.
I conclude that R.M. Davis has satisfied the requirements for an order under
Rule 35. First, Cusack’s mental condition plainly is “in controversy”— indeed, he
does not argue otherwise. Second, R.M. Davis has established good cause for a
mental examination. Cusack alleges that his damages include “emotional pain and
suffering and lost enjoyment of life,” FAC ¶¶ 115, 125, and now claims that he has an
apparently undiagnosed personality disorder.

Third—and although not in itself

dispositive—Cusack initially agreed to the examination.
IV. Conclusion
For the foregoing reasons, R.M. Davis’s motion for a Rule 35 examination is
GRANTED. Cusack shall submit to a mental examination by Dr. Carlyle Voss on
June 19, 2024, at 11:00 a.m. via Zoom. The examination shall be limited to an
interview-based assessment and a mental status examination and shall not exceed
three hours in length.
SO ORDERED.

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NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may
serve and file an objection to this order within fourteen (14) days after being
served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to review by the District Court and to any further appeal of this order.
Dated: June 3, 2024
/s/ Karen Frink Wolf
United States Magistrate Judge

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