M.S. et al v. Cedar Bridge Military Academy et al

Filing 60

MEMORANDUM OPINION - IT IS ORDERED that Plaintiffs counsel may not attend this examination, and Plaintiffs parents may not be compelled to participate in interviews as part of this examination. Signed by Magistrate Judge Martin C. Carlson on May 13, 2011. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
M.S., a Minor, by and through his :
parents and Natural Guardians,
:
Michelle M.S. and D.S.,
:
:
Plaintiffs,
:
:
v.
:
:
CEDAR BRIDGE MILITARY
:
ACADEMY, et al.,
:
:
Defendants.
:

Civil Action No. 1:08-CV-2271
(Judge Conner)
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Introduction

In this diversity lawsuit we are asked to address two related questions
regarding who may, and who must, participate in a Rule 35 psychiatric examination
of a child-party. For the reasons set forth below, we conclude that counsel for the
Plaintiff who is being examined may not participate in, or attend, the examination.
We also find that the parents of the minor child plaintiff may not be compelled to
participate in this psychiatric evaluation.
II.

Statement of Facts and of The Case

The pertinent facts in this case can be simply stated: the Plaintiff, M.S., is the
minor child of Michelle M.S. and D.S., all of whom reside in Connecticut. In the
summer of 2007, M.S.’s parents resolved to have M.S. attend the Cedar Bridge

Military Academy Summer Camp operated on a Boy Scouts facility near Dillsburg,
Pennsylvania, after learning that Cedar Bridge held itself out as a “private, faithbased, youth-serving organization dedicated to providing young adults with an
intense, rewarding experience through military and high adventure training,” and
being informed that, “the mission of Cedar Bridge is to foster a love of Corps,
Country and God by providing a vehicle for the application of leadership,
strengthening character, teaching responsibility, improving self-discipline,
developing an understanding of the role of our military in today's society, and
building informed and productive citizens.” (Doc 32, ¶¶ 21 and 22.)
Having entrusted their child to the Defendants’ care based upon these
representations, from July 14, 2007, through July 28, 2007, M.S. attended the Cedar
Bridge Military Academy Summer Camp. During this two-week period, it is alleged
that M.S. was “physically assaulted by camp employees, staff and counselors,
verbally abused and threatened by camp employees, staff and counselors, made to eat
his own vomit, threatened with having to clean up human feces with his hands,
labeled ‘Puke Bucket’ by staff and called that name by other campers and counselors
and made to listen to sexually explicit ‘stories’ told by camp employees and
counselors and terrorized by camp employees or counselors.” (Id., ¶25.)

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On December 19, 2008, the Plaintiff, M.S., through his parents acting on his
behalf, filed a civil complaint arising out of this alleged incident,(Doc.1), which he
subsequently amended on January 20, 2010. (Doc. 32.) In his complaint the Plaintiff,
M.S., brings causes of action grounded in negligence, negligent hiring, and
intentional infliction of emotional distress against the Defendants. (Id.) The Plaintiff
seeks compensatory and punitive damages as compensation for the injuries he
allegedly suffered at the hands of the Defendants while he attended this summer
camp program. (Id.)
This case is now proceeding to discovery, with a psychiatric evaluation of M.S.
scheduled by the Defendants. In connection with this upcoming evaluation, the
parties have sought the intervention of the Court to address two questions: First, may
Plaintiff’s counsel attend, directly observe or participate in the psychiatric evaluation?
Second, as part of this evaluation, must M.S.’s parents , who bring this action on
behalf of M.S. as his parents and natural guardians, submit to interviews by the
psychiatrist? The parties have submitted comprehensive letter briefs on these two
issues and these questions are now ripe for resolution.
For the reasons set forth below, we conclude: (1) that Plaintiff’s counsel may
not attend this evaluation; and (2) that the Plaintiff’s parents may not be compelled

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to participate in this process by submitting to interviews by the examining
psychiatrist.
III.

Discussion

Rule 35 (a) of the Federal Rules of Civil Procedure governs psychiatric
examinations of parties in federal civil litigation, and provides in pertinent part as
follows:
(a) Order for an Examination.
(1) In General. The court where the action is pending 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. 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 control.
(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).
By specifying that the court may determine “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 consigns the procedures to be used in conducting
these examinations to the sound discretion of the court, an approach that is consistent

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with the general guidance of the rules which provide that issues relating to the scope
of discovery rest in the sound discretion of the Court. Wisniewski v. Johns-Manville
Corp., 812 F.2d 81, 90 (3d Cir. 1987). A court’s decisions regarding the conduct of
discovery, therefore, will be disturbed only upon a showing of an abuse of discretion.
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This far-reaching
discretion extends to rulings by United States Magistrate Judges on requests to alter
the duration of depositions. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys.
Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).

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In this case we are asked to exercise our discretion and regulate two procedural
aspects of the psychiatric examination of M.S. First, we must ascertain who may
attend this examination, and specifically must address the request of Plaintiff’s
counsel to attend the examination.
In considering this question, we note that the exercise of our discretion compels
a choice between conflicting guidance. Rule 35 does not, by its terms, specify who
may attend a psychiatric examination undertaken in connection with civil litigation.
While the rule is silent on this issue, the courts have spoken, albeit with several
different voices.
The majority rule adopted by the federal courts is that the court may, and often
should, exclude third-party observers, including counsel, from medical or psychiatric
evaluations. See, e.g., Calderon v. Reederei-Claus-Peter Offen GmbH & Co., 258
F.R.D. 523, 526-7(S.D. Fla. 2009)(“the majority of federal courts have held that third
parties should be excluded absent special circumstances. See, e.g., Hertenstein v.
Kimberly Home Health Care, inc., 189 F.R.D. 620, 628-34 (D.Kan.1999); McKitis
v. Defazio, 187 F.R.D. 225, 228 (D.Md.1999); Ali v. Wang Laboratories, Inc., 162
F.R.D. 165, 168 (M.D.Fla.1995); Tomlin v. Holecek, 150 F.R.D. 628, 631
(D.Minn.1993); Wheat v. Biesecker, 125 F.R.D. 479, 480 (N.D.Ind.1989);

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Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543, 546 (S.D.N.Y.1978).”) In
reaching this conclusion, most courts agree that:
[T]he need for effective psychiatric examinations militates against
allowing an observer who could potentially distract the examining
psychiatrist and examine thereby compromising the results of the
examination. Moreover, the presence of the observer interjects an
adversarial, partisan atmosphere into what should be otherwise a wholly
objective inquiry. See Jacob v. Chaplin, 625 N.E.2d 486, 492
(Ind.App.1993). Additionally, it is recognized that psychological
examinations necessitate an unimpeded, one-on-one exchange between
the doctor and the patient. Tomlin v. Holecek et al., 150 F.R.D. 628, 632
(D.Minn.1993); Cline v. Firestone, 118 F.R.D. 588, 589
(S.D.W.Va.1988); Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543,
544 (S.D.N.Y.1978); Swift v. Swift, 64 F.R.D. 440, 443
(E.D.N.Y.1974). The Court finds that the presence of an observer would
lend a degree of artificiality to the examination that would be
inconsistent with the applicable professional standard.
Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D. 68, 71 (E.D.Pa.1996). Thus,
in this regard “‘the party seeking the attendance of a third party at the examination
bears the burden of showing “good cause” for such attendance pursuant to Rule
26(c).’ Reyes v. City of New York, No. 00 Civ. 2300(SHS), 2000 WL 1528239, at
*3 (S.D.N.Y. Oct.16, 2000) [and], ‘most courts start with a presumption against the
presence of third persons, and then go on to consider whether special circumstances
have been demonstrated in a particular case.’ ” Favale v. Roman Catholic Diocese of
Bridgeport, 235 F.R.D. 553, 556 (D.Conn.2006).

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A few courts take a different view, a view embodied by Pennsylvania Rule of
Civil Procedure 4010, and permit counsel for a party to attend a medical or mental
examination. Indeed, some federal courts have found the Pennsylvania practice rule
persuasive authority for the proposition that counsel should be present at these
examinations, at least when the examinations entail a physical, rather than
psychological, assessment of a party. Gensberger v. May Department Stores, 184
F.R.D. 552 (E.D. Pa. 1999).
While the Plaintiff has urged us to follow the Pennsylvania procedural practice,
arguing that the Pennsylvania practice rule is persuasive authority, counsel candidly
acknowledges that this Pennsylvania rule is not a substantive state legal standard
which we are obliged to adopt under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)
when we exercise our diversity jurisdiction. We agree with this assessment that Rule
4010 is not a substantive state rule of law which we are obliged to apply under the
Erie doctrine. In this regard we note that: “Erie involved the constitutional power of
federal courts to supplant state law with judge-made rules. In that context, it made no
difference whether the rule was technically one of substance or procedure; the
touchstone was whether it ‘significantly affect[s] the result of a litigation.’ Guaranty
Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).” Shady
Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S.Ct. 1431, 1442 (2010).
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Judged against this benchmark, Pennsylvania’s Rule 4010, which permits counsel to
attend physical and mental examinations, is not an outcome-determinative rule of
substance which binds this Court. Rather, it is simply a procedural preference which
does not control our exercise of discretion under Rule 35 of the Federal Rules of Civil
Procedure.
With this understanding we decline to follow the path proposed by the Plaintiff
and the Pennsylvania rule. Instead, we adhere to the majority view expressed by the
federal courts interpreting Rule 35 of the Federal Rules of Civil Procedure, which
recognizes the “need for effective psychiatric examinations militates against allowing
an observer who could potentially distract the examining psychiatrist and examinee
thereby compromising the results of the examination,[and] the presence of the
observer interjects an adversarial, partisan atmosphere into what should be otherwise
a wholly objective inquiry” Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D.
68, 71 (E.D.Pa.1996). Therefore, in the exercise of our discretion we will decline the
Plaintiff’s invitation to order this examination conducted in the presence of counsel.
Having addressed who may participate in this examination, we turn to the
question of who must participate in the examination. Specifically, we note that the
Defendants have indicated that the examiner would like to have the opportunity to
interview M.S.’s parents, who bring this action on his behalf, as part of this
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evaluation. The Plaintiff resists this request, arguing that the parents should not be
compelled to participate in interviews as part of the psychiatric examination of their
child.
We agree. Once again, Rule 35 itself is silent on this issue, but a number of
cases have held that the Court’s authority to order psychiatric examinations under
Rule 35 does not also entail the power to compel a child’s parents to cooperate with
interviews as part of the examination of their child. See P.S. v. The Farm, Inc., No.
07-2210, 2008 WL 4198597 (D. Kan. Sept. 11, 2008); Caban ex rel. Crespo v. 600
E. 21st Street Co., 200 F.R.D. 176, 180 (E.D.N.Y.2001). These cases reason that Rule
35 only applies to parties, and in this setting the party-plaintiff is the minor child.
Since the minor-child is the party, that child’s parents, while acting on his behalf, are
not separate parties who may be independently compelled under Rule 35 to
participate in an examination and interview process. See Caban ex rel. Crespo v. 600
E. 21st Street Co., 200 F.R.D. 176, 180 (E.D.N.Y.2001)(citing Scharf v. United
States, 597 F.2d 1240, 1243 (9th Cir. 1979) and Fong Sik Leung v. Dulles, 226 F.2d
74 (9th Cir. 1955)). In contrast to this authority restricting the application of Rule 35
to the parents of minor parties, the principal case cited by the parties endorsing a
requirement that a parent representatives be interviewed in connection with a Rule
35 psychiatric examination of a child-party did so only in dicta, without citation to
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any supporting authority, in the context of a ruling which actually denied a request
to conduct the examination of the child-party. See Valita M. v. City of Chicago, No.
83-3745 (N.D.Ill. Aug. 1, 1986). We find this sparse authority to be unpersuasive.1
In any event, even if we assumed that we had the authority under Rule 35 to
order such a parental interview in connection with the examination of a childplaintiff, we would not exercise that authority here. We would decline to exercise our
discretion in this manner because we do not believe that “good cause”, Fed. R. Civ.
P. 35(a)(2)(A), has been shown that such a step–which is opposed by M.S.’ parents–
is necessary in this case. Quite the contrary, it appears that these parents have
previously been deposed about M.S.’s medical history and discovery regarding M.S.’s
treatment and health has already been undertaken. This separate discovery should
provide the necessary medical history to inform the current planned examination of
M.S. Thus, while an interview of M.S.’s parents might be helpful to the process, we

In addition, both the Plaintiff and the Defendants cite Cutting v. United
States, No.07-2053, 2008 WL 5064267 (D.Col. Nov. 24, 2008), in support of their
conflicting views on this issue. We find, however, that Cutting adds little to our
analysis of this question, since it simultaneously holds that a non-party parent of a
child cannot be ordered to undergo a medical test pursuant to Rule 35, while also
asserting that a parent acting on behalf of a minor party can at least be directed to
attend a medical examination of that child and provide medical history information
1

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cannot find that it is necessary or that good cause has been shown to compel M.S.’s
parents to participate in the examination of their child in this fashion.2
IV.

Conclusion

For the foregoing reasons, IT IS ORDERED that Plaintiff’s counsel may not
attend this examination, and Plaintiff’s parents may not be compelled to participate
in interviews as part of this examination.
So ordered this 13th day of May, 2011.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

While we do not believe that we should compel this cooperation, we would
encourage the parents of M.S., who we understand intend to accompany their child
to this examination, to voluntarily take all appropriate steps to facilitate the
examination and aid their child in completing this process.
2

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