McCormack v. Westland et al

Filing 48

ORDER Granting Plaintiff's 42 Motion for Protective Order Regarding Examinations. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIA MCCORMACK,
Plaintiff,

Case No. 15-cv-14507
Hon. Matthew F. Leitman

v.
CITY OF WESTLAND, et al.,
Defendants.
_________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR PROTECTIVE
ORDER REGARDING EXAMINATIONS (ECF #42)
In this civil action, Plaintiff Maria McCormack (“McCormack”) has sued the
City of Westland, the Wayne Westland Fire Association, Highland Landscape and
Snowplowing, and a number of individually-named defendants (collectively, the
“Defendants”) for entering McCormack’s yard and taking or damaging her
property. (See Compl., ECF #1.) The Westland Defendants (i.e., all Defendants
other than Highland Landscape and Snowplowing) have demanded that
McCormack submit to an independent examination of her mental condition by a
mental health professional (the “Requested Examination”).

McCormack has

moved for a protective order prohibiting the Westland Defendants from obtaining
the Requested Examination (the “Motion”). (See ECF #42.)

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The Westland

Defendants responded to the Motion on January 26, 2017. (See ECF #45.) For the
reasons described below, the Court GRANTS the Motion.
Rule 35 of the Federal Rules of Civil Procedure (“Rule 35”)1 provides that
the Court “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.” Fed. R. Civ. P. 35(a)(1). The Court may
compel a party to submit to an examination “only on motion for good cause.” Fed.
R. Civ. P. 35(a)(2). Thus, Rule 35 “requires that a party’s condition must be in
controversy and further requires that good cause exist for the examination.”
Johnson v. Peake, 273 F.R.D. 411, 412 (W.D. Tenn. 2009).

These two

requirements “are not met by 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.”
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964).

1

Courts usually apply Rule 35 when the party seeking an independent medical
examination files a motion to compel such examination. Although here
McCormack has preemptively filed the Motion to avoid an independent medical
examination, the Rule 35 standard nonetheless applies. Indeed, both parties have
directed the Court to case law applying the rule. (See Motion, ECF #42 at 12-14,
Pg. ID 449-51; Response, ECF #45 at 4-5, Pg. ID 468-69.)
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McCormack and the Westland Defendants agree that a plaintiff’s mental
condition is “in controversy” only when one or more of the following factors listed
in Johnson, 273 F.R.D. at 412, are present:
(1) a tort claim is asserted for intentional or negligent
infliction of emotional distress;
(2) an allegation of a specific mental or psychiatric injury
or disorder is made;
(3) a claim of unusually severe emotional distress is
made;
(4) plaintiff intends to offer expert testimony in support a
claim for emotional distress damages; and/or
(5) plaintiff concedes that her mental condition is in
controversy within the meaning of Rule 35.
(See Motion, ECF #42 at 13, Pg. ID 450; Response, ECF #45 at 4, Pg. ID 468.)
The Westland Defendants have failed to persuade the Court that any of the
Johnson factors apply here. They make only general and unsupported allegations
that the incidents in McCormack’s yard have “left her paranoid” and that
McCormack’s requested damages amount indicates that she is making a claim for
“unusually severe emotional distress.” (ECF #45 at 4-5, Pg. ID 468-69.)

In

Schlagenhauf, the Supreme Court deemed similar conclusory allegations
insufficient to warrant a Rule 35 examination. See Schlagenhauf, 379 U.S. at 11920. And in Johnson the court held that a plaintiff’s mental condition was not “in
controversy” where, like McCormack, the plaintiff sought only “garden variety”
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emotional distress damages. Johnson, 273 F.R.D. at 412-13.

Notably, the

Westland Defendants have not cited a single case in which any federal court has
granted a request for a Rule 35 examination that was supported with arguments
like those advanced by the Westland Defendants.

Indeed, the Westland

Defendants have not cited a single case in which any court has granted a request
for a Rule 35 examination under any circumstances. Simply put, the Westland
Defendants’ perfunctory arguments in support of the Requested Examination fall
far short of the showing required to justify a Rule 35 examination.
Accordingly, the Motion is GRANTED. McCormack shall not be required
to submit to any examination under Rule 35.
IT IS SO ORDERED.
/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 31, 2017

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 31, 2017, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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