Kuslick v. Roszczewski
ORDER granting 41 Motion to Compel. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CHERYL ROSE KUSLICK,
Case Number 09-12307-BC
Honorable Thomas L. Ludington
ORDER GRANTING MOTION TO COMPEL AND CANCELING HEARING
Defendant James Roszczewski, a Michigan state trooper, swore out a complaint against
Plaintiff Cheryl Rose Kuslick for the felony offense of obstructing his lawful collection of
handwriting exemplars from Plaintiff’s daughter on May 21, 2008. Plaintiff contends that
Defendant’s sworn statement in support of the complaint and arrest warrant that he “required one
hundred hand writing samples and only obtained forty, because [Plaintiff] ordered her daughter to
leave with her not giving the amount of samples required . . .” was false and erroneously furnished
to provide probable cause for the warrant and Plaintiff’s later arrest, detention, and prosecution.
Plaintiff was arrested and served an evening in jail. The charge of obstruction was dismissed on
September 24, 2008, by the Honorable Allen C. Yenior, who concluded that “Defendant [Plaintiff
herein] did not obstruct the service or execution of the search warrant when she told her daughter
to leave the State Police Post.” Plaintiff’s complaint initiating this case for wrongful arrest,
malicious prosecution, and First Amendment retaliatory prosecution pursuant to 42 U.S.C. § 1983
was filed on June 15, 2009.
Now before the Court is Defendant’s motion to compel Plaintiff Cheryl Kuslick’s mental
examination because (1) Plaintiff has placed her mental state in controversy and (2) Defendant
attempted to obtain a voluntary examination but was unsuccessful. Plaintiff opposes Defendant’s
request because she does not believe that the damages she claims require submitting to a mental
examination and contends that traveling to the examination would be unduly burdensome. The Court
will grant Defendant’s motion, and cancel the hearing scheduled for March 13, 2012.
Defendant’s attempt to obtain the independent medical examination voluntarily
Defendant has retained Dr. R. Scott Stehouwer, a licensed psychologist, to examine
Plaintiff. Preliminary discussions with opposing counsel indicated no objection to such an
examination and, accordingly, defendant sent a December 29, 2011 Notice of Independent Medical
Examination for January 27, 2012. ECF No. 41 Ex. 5. Defendant also disclosed Dr. Stehouwer’s
curriculum vitae and billing rate. Id. In response to Plaintiff’s inquiry, Defendant provided Dr.
Stehouwer’s explanation of the evaluation procedures he would employ during the examination.
ECF No. 41 Ex. 6. He further stated elsewhere that the tests he uses are “standards in the field of
clinical psychology and psychological assessment” and supported by decades of research. Id.
Plaintiff responded that a voluntary mental examination would not occur because (1) her
emotional distress claim is “garden variety,” (2) she “has sought no treatment for this aspect of her
case,” (3) she has “health issues” that prevent her from sitting for extended periods of time, and (4)
the testing proposed “borders on junk science.” ECF No. 41 Ex. 1. Defense counsel responded to
these points and sent countervailing authority. Id. Defendant then filed the instant motion.
Plaintiff’s Mental State and Good Cause for a Mental Examination
The Court is authorized to order Plaintiff to submit to an independent medical examination,
provided there is good cause. According to Rule 35(a):
(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental or
physical condition-including blood group-is in controversy to submit to a physical or mental
examination by a suitably licensed or certified examiner. The court has the same authority
to order a party to produce for examination a person who is in its custody or under its legal
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the
person to be examined; and
(B) 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). A good cause determination can be made on the pleadings:
Of course, there are situations where the pleadings alone are sufficient to meet these
requirements. A plaintiff in a negligence action who asserts mental or physical injury
. . . 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.
Schlagenhauf v. Holder, 379 U.S. 104, 119 (citation omitted). . “Rule 35 . . . requires discriminating
application by the trial judge” to ensure that “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). “Good
cause” means more than merely “relevant,” but there are nevertheless situations where the
determination can be made on the pleadings alone. Id. A plaintiff who seeks damages for a “mental
or physical injury 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. at 119
Defendant argues that Plaintiff’s complaint alone meets these requirements. Compl. at ¶ 43.
Plaintiff’s responses to interrogatories and her deposition testimony further establish good cause for
an independent medical examination. She explained at her deposition the mental and emotional
effect that she claims she suffered as a result of this incident. This is not a case that presents mental
and emotional injury as an afterthought but rather it represents the core damages Plaintiff is seeking
for the night she spent in custody. Defendant argues that the “good cause” standard does not require
that Plaintiff was actually treated for a mental condition or, relatedly, whether her claim is fairly
described as “garden variety.” Plaintiff is complaining of a severe impairment that prevents her from
leaving her house all but rarely. Moreover, Defendant submits that Schlagenhauf authorizes a
finding of good cause even for “garden variety” claims of mental or emotional distress irrespective
the degree of impact on a plaintiff. Defendant also notes that in McCumons v. Marougi, this Court
applied Rule 35 and Schlagenhauf in granting the defendants’ motion to compel a psychological
evaluation. No. 08-11164-BC, 2011 WL 1330807, at *3 (E.D. Mich. April 7, 2001). The
circumstances of that case justified a second examination by a psychologist even though a previous
psychiatric evaluation occurred voluntarily. Id. at *3.
Moreover, Defendant notes that Plaintiff’s complaint and her deposition testimony claim
non-economic damages that place her mental condition in controversy. Her complaint lists multiple
categories of non-economic damages. Plaintiff alleges that, as a direct and proximate result of the
acts or omissions outlined in the complaint, she has suffered and continues to suffer indignation,
aggravation, humiliation, outrage, worry, fear, embarrassment, emotional distress, loss of liberty,
legal expenses, and loss of cherished constitutional rights. Compl. ¶ 43.
In her response to interrogatories, Plaintiff confirmed that she was not seeking lost wages.
ECF No. 41 Ex. 3 No. 6. Apart from the expense of retaining an attorney for a prior criminal
proceeding, Plaintiff is claiming no economic damages nor is she claiming any physical injury.
Defendant submits that Plaintiff has averred that she intends to present witness testimony and other
evidence concerning how the subject incident of this lawsuit “has affected [her].” ECF No. 41 Ex.
3 No. 9. In her deposition, Plaintiff confirmed that she is claiming emotional distress and that she
has difficulty leaving her house. ECF No.41 Ex. 4 at 149-57.
Plaintiff, however, argues that her mental state has not been placed in issue. Her complaint
claims that Defendant caused her to be maliciously prosecuted and she emphasizes that she has only
raised what the courts have referred to as “garden variety” non-economic damages. Defendant’s
request relies upon Rule 35, Schlagenhauf v. Holder, 379 U.S. 104 (1964) and this Court’s ruling
in McCumons v. Marougi, 2011 WL 1330807 (E.D. Mich. 2011). Plaintiff submits that the instant
case is distinguishable. When the Supreme Court considered the validity of Rule 35, it noted that
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,” which requirements . . . are
See Schlagenhauf, 379 U.S. at 118-19. The “in controversy” and “good cause” requirements are not
mere conclusory allegations of the pleadings - nor by mere relevance to the case - but
require 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. at 118.
Plaintiff argues that the rigorous examination proposed by Defendant is not justified. Plaintiff
emphasizes that she has not treated with a psychiatrist or psychologist, has not seen a social worker,
and does not intend to present psychiatric, psychological, or medical evidence or treaters. She is not
pleading a separate cause of action for intentional or negligent emotional distress, and is not
suggesting that she suffers from a specific mental or psychiatric injury or disorder.
While courts differ on this issue, Plaintiff contends that most courts agree that for a
plaintiff’s mental state to be in controversy, more than “garden variety” emotional distress
allegations are required. See Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995) (noting
that most cases in which courts have ordered Rule 35 examinations have involved more than just
a claim of emotional distress, such as a cause of action for intentional or negligent infliction of
emotional distress; an allegation of a specific mental or psychiatric injury or disorder; a claim of
unusually severe emotional distress; plaintiff’s offer of expert testimony to support a claim for
emotional distress; and/or plaintiff’s concession that his or her mental condition is “in controversy”
within the meaning of Rule 35(a)). Plaintiff notes that this is consistent with this Court’s previous
ruling in McCumons, supra, when it ordered a Rule 35 examination because the plaintiff had pled
intense mental anguish, anxiety, and emotional distress, had been treating with a psychologist, and
noted that the plaintiff apparently intended to present his psychologist as an expert witness at trial.
Plaintiff emphasizes that is not the case here.
Plaintiff, however, has not merely submitted “garden variety” emotional distress claims,
because a review of the pleadings demonstrates that Plaintiff’s primary damages claims are for
emotional harm caused by the incident. Accordingly, Plaintiff’s mental condition and the
relationship between her condition and the incident underlying this case are clearly “in controversy.”
Schlagenhauf, 379 U.S. at 119. Moreover, Plaintiff contends that the incident has exacerbated a prior
condition as well as resulted in her being unable to leave her home. Good cause for an examination
thus exists to determine the existence and extent of such asserted injury and Defendant’s motion to
compel a mental examination will be granted.
Plaintiff’s Requested Restrictions and Conditions
Plaintiff argues that she should not be required to attend a Rule 35 psychiatric examination
in Grand Rapids because she has pre-existing and significant physical ailments that preclude such
travel. She suffers from several physical infirmities. She has survived an aneurysm, has significant
health issues, and needs help with toileting. Traveling from her home in Iosco County will take
approximately three and one-half hours each way. Plaintiff requests that the conditions of the
examination include: (1) that Ms. Kuslick’s examination occur at her home or within one hour’s
driving time from her house; (2) that her examination be restricted to the claims made in her law
suit, and (3) that the examination and interview be tape recorded unobtrusively. Defendant notes in
his reply that the mental examination is proposed to take place in Bay City, which is approximately
an hour from Plaintiff’s home and Plaintiff’s concern regarding travel either being within an hour’s
driving time from her house is thus addressed. Defendant also submits that any concern about
Plaintiff’s inability to sit for extended periods can be accommodated.
Restricting the Scope of the Examination to the Claims in Plaintiff’s Complaint
Plaintiff’s next request is that the scope of the mental examination be limited to the claims
made in her complaint but not the damages she claims. Plaintiff does not otherwise define any
proposed limits. Defendant contends imposing this condition would effectively undercut the purpose
of a psychological evaluation and reviewing a deposition transcript will simply not suffice for Dr.
Stehouwer. ECF No. 41 Ex. 1. Dr. Stehouwer instead needs to evaluate Plaintiff's present condition
and the causal relationship, if any, between that condition and the complained of incident. He has
further stated that it would be unethical for him to attempt a diagnosis without discussing the
incident with Plaintiff and viewing her reactions. Id. Defendant contends that the examination thus
cannot reasonably be limited to her claims, but must also include her damages which necessitates
an inquiry into her background and, more specifically, the baseline condition that she claims was
altered as a result of the complained of incident. In this sense, Defendant submits that there will be
no deviation from all matters that are fairly discoverable. Defendant is correct that limiting the scope
to solely the claims made and excluding the basis for the alleged damages is not justified. The
examination will be permitted to discuss the basis for Plaintiff’s claims, the damages she alleges,
and the baseline condition that she contends was worsened as a result of the incident.
Plaintiff’s Request for Recording the Mental Examination
Plaintiff’s final request is that her examination be recorded. Other circuits have stressed the
importance of having either a recording or a third party present at a medical examination because
the evaluations at the request of an opposing party are not “independent.” In Zabkowicz v. West Bend
Co., 585 F. Supp. 635 (E.D. Wis. 1984), the Court held that
The defendant’s expert is being engaged to advance the interests of the defendants;
clearly the doctor cannot be considered a neutral in the case. There are numerous
advantages, unrelated to the emotional damage issue, which the defendants might
unfairly derive from an unsupervised examination. In sum, I do not believe that the
role of the defendants’ expert in the truth-seeking process is sufficiently impartial to
justify the license sought by the defendants. Accordingly, the plaintiffs, at their
option, are entitled to have a third party (including counsel) or recording device at
Zabkowicz, 585 F. Supp. at 636.
Plaintiff emphasizes that Dr. Stehouwer has been retained to advance the interest of the
Defendant and is thus not “independent.” As the Court in Zabkowicz aptly explained
“[I]n 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.”
Id. at 636. Thus, like in Zabkowicz, the presence of an unobtrusive tape recorder during the medical
exam should not inhibit the expert’s ability to question Plaintiff in this case because Defendant
wishes to conduct an examination for the adversarial purpose of discovering any evidence with
which to dispute Plaintiff’s claims. Plaintiff argues that without an independent record, defense
experts who are permitted to meet alone with an adversarial party may, and in fact do, pick and
choose the information they use to formulate their ultimate opinions. This is particularly true in
situations involving psychological evaluations, where much of the interaction is based upon
Defendant replies that Plaintiff has offered no legal authority for this condition, apart from
a case from the Eastern District of Wisconsin, which itself does not cite any legal authority for
imposing a recording requirement. 585 F. Supp. at 636. Defendant believes that the presumption
instead should be that, like any licensed professional, the doctor in this case will follow applicable
professional and ethical standards and reach an independent conclusion supported by evidence and
summarized in his written report.
Although the case Plaintiff cites is non-binding, it is instructive on the issue of the
“independence” of a medical exam sought by a defendant to discover evidence that may dispute or
mitigate a plaintiff’s claims. Plaintiff’s request to have the session recorded is not unreasonable and
Defendant does not suggest that doing so would in any way interfere with the exam. Plaintiff,
however, must bear the costs for the video recording.
Accordingly, it is ORDERED that Defendant’s motion to compel a mental examination
(ECF No. 41) is GRANTED.
It is further ORDERED that the hearing scheduled for March 13, 2012 is CANCELED
because oral argument will not aid in the disposition of the motion. E.D. Mich. L.R. 7.1(f)(2).
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 16, 2012
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 16, 2012.
s/Tracy A. Jacobs
TRACY A. JACOBS
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