Flores-Febus et al v. MVM, Inc. et al

Filing 23

MEMORANDUM AND ORDER re 20 Motion for Protective Order; and re 21 Response in Opposition to Motion. Plaintiffs' motion for a protective order (Docket No. 20) is DENIED. Defendant's Rule 35 motion for an independent medical examination (Docket No. 21) is GRANTED as to plaintiff Flores, but DENIED as to plaintiff Polo. Flores is ORDERED to appear at the scheduled examinations currently scheduled for the following dates: June 13, 2014, from 11:00 a.m. to 1:00 p.m.; June 16, 2014, from 4:00 p.m. to 6:00 p.m.; and June 25, 2014, from 3:00 p.m. to 5:00 p.m. Signed by Judge Francisco A. Besosa on 06/11/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA FLORES-FEBUS, et als.,
Plaintiffs,
CIVIL NO. 13-1391 (FAB)

v.
MVM, INC.; et al.,
Defendants.

MEMORANDUM & ORDER
Before the Court are plaintiffs’ motion for order limiting the
scope of

a

mental

examination of

plaintiff

requested

by

the

defendant (Docket No. 20), and defendant MVM, Inc. (“MVM”)’s
opposition

(Docket

No.

21).

After

considering

the

arguments, the Court now DENIES plaintiffs’ motion.

parties’
The Court

deems defendant’s response as a motion for an independent medical
examination

(“IME”)

pursuant

Procedure 35(a) (“Rule 35”).

to

Federal

Rule

of

(See Docket No. 21 at p. 3.)

Civil
For the

reasons articulated below, the Court GRANTS defendant’s motion as
to plaintiff Wanda Flores-Febus, but DENIES the motion as to
plaintiff Antonio Polo. Plaintiff Flores is ORDERED to comply with
the IME as scheduled by defendant.
I.

Discussion
A.

Plaintiffs’ Protective Order
Though plaintiffs do not indicate under what authority

they move to limit the scope of their mental examinations, the

Civil No. 13-1391 (FAB)

2

Court reads their motion as one for a protective order pursuant to
Federal Rule of Civil Procedure 26(c) (“Rule 26”).
requires

that

a

motion

for

a

protective

order

Rule 26

include

“a

certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to
resolve the dispute without court action,” and permits the Court to
issue a protective order for good cause.

Fed. R. Civ. P. 26(c).

Because plaintiffs include no good faith certification, the Court
is unable to consider their motion.
Additionally, plaintiffs fail to establish that good
cause exists for the issuance of a protective order.

“A finding of

good cause must be based on a particular factual demonstration of
potential

harm,

not

on

conclusory

statements.”

Anderson

v.

Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986) (internal citations
omitted).

While plaintiffs object to the over-breadth of some of

the tests sought by defendant, they do not articulate any nonconclusory reasons why the tests pose potential harm to them.
Plaintiffs thus fail to comply with Rule 26’s good faith and good
cause requirements.

Their

motion

for

a

protective

order is

accordingly DENIED.
B.

Defendant’s Rule 35 Motion
“The 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

Civil No. 13-1391 (FAB)
examiner.”

3

Fed. R. Civ. P. 35(a).

The Court will order an

independent medical examination (“IME”) only on proper notice, and
where the moving party has established that good cause exists to
order the discovery.

Id.

Plaintiffs raise concerns regarding the

extent and methodology of the tests proposed, and challenge four of
the thirteen tests on Daubert1 grounds.

Because no expert reports

have been issued, plaintiffs’ Daubert objections are premature at
this stage. The Court does address, however, the parties’ disputes
over

the

“in

controversy”

and

“good

cause”

components

of

defendant’s Rule 35 motion.2
1.

Plaintiff Flores has placed her mental condition in
controversy, but plaintiff Polo has not.
The

complaint

raises

multiple

claims

against

defendant, including claims pursuant to Puerto Rico’s gender-based
Employment Discrimination Act, the Working Mother’s Protection Act,
the Retaliation Act, as well as Puerto Rico’s general tort statute,
articles 1802-1803 of the Civil Code.
§§ 5141, 5142.

Laws of P.R. Ann. tit. 31,

(Docket No. 7-1 at p. 1.)

Plaintiffs allege that

as a result of defendant’s actions, plaintiff Flores “has suffered
and continues to suffer serious physical and emotional injury,”
including “depression, nervousness, insomnia, anxiety, anguish,
sadness, crying, loss of appetite, weight loss, arguments at home,

1

2

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

The parties do not dispute that defendants have complied
with Rule 35(a)(2)’s notification requirements.

Civil No. 13-1391 (FAB)

4

loss of self-esteem, very frequent headaches, loss of energy, fear
of loss of her job, pessimism and difficulties in concentration.”
(Docket No. 7-1 at ¶ 13.)

Plaintiffs contend that as a result of

witnessing the “physical and emotional condition of his companion
[Flores],” plaintiff Polo suffered “injury and mental anguish,” and
“great financial harm.”

Id. at ¶ 16.

The first page of plaintiffs’ motion states: “Thus,
we concede that [plaintiffs] have put their mental condition in
issue and to discover evidence in relation to it is fair game.”
(Docket No. 20 at ¶ 2.)

Later in the motion, however, plaintiffs

cite cases for the proposition that mere garden-variety allegations
of emotional distress do not suffice to place a plaintiff’s mental
condition in controversy for Rule 35 purposes.
A review of the cases cited by plaintiffs, as well
as others, suggests that federal courts will order IMEs pursuant to
Rule 35 in cases that involve, in addition to a claim of emotional
distress, one or more of the following factors:
action

for

intentional

or

negligent

infliction

(1) a cause of
of

emotional

distress; (2) an allegation of a specific mental or psychiatric
injury or disorder; (3) a claim of unusually severe emotional
distress; (4) plaintiff’s offer of expert witness testimony to
support a claim of emotional distress; and/or (5) plaintiff’s
concession that his or her mental condition is “in controversy.”
Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995)

Civil No. 13-1391 (FAB)
(compiling cases).

5

See also Schlagenhauf v. Holder, 379 U.S. 104,

119 (1964) (“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.”)
Here,

defendant

makes

a

specific

showing

that

plaintiff Flores has placed her mental condition in controversy.
In addition to bringing a generalized claim for emotional distress
caused by defendant’s discriminatory conduct, she also (1) brings
a cause of action pursuant to Puerto Rico’s negligence statute
(Docket No. 7-1 at p. 1); (2) included allegations of a plethora of
specific mental injuries, id. at ¶ 13; and (3) conceded that her
mental condition was in controversy (Docket No. 20 at ¶ 2).

For

these reasons, the Court finds that Flores has placed her mental
condition in controversy. Defendant’s motion for an IME is GRANTED
as to plaintiff Flores.
Defendant

does

not

make

a

sufficient

showing,

however, that plaintiff Polo has placed his mental condition in
controversy.

Polo’s allegations of emotional distress are much

more generalized and do not enumerate particular mental injuries.
See, e.g., Bridges v. Eastman Kodak Co., 850 F. Supp. 216 (S.D.N.Y.
1994); Sabre v. United Bhd. of Carpenters & Joiners of Am., 126
F.R.D. 422 (D. Mass. 1989); Cody v. Marriott Corp., 103 F.R.D. 421

Civil No. 13-1391 (FAB)
(D. Mass. 1984).

6

The Court accordingly does not find that Polo’s

mental condition has been placed in controversy. Thus, defendant’s
motion for an IME is DENIED as to plaintiff Polo.
2.

Good cause exists to order the IME for Flores
To establish that “good cause” exists for an IME,

the movant must offer specific facts justifying the discovery.
Fed. R. Civ. P. 35(a); Schlagenhauf, 379 U.S. at 118.

“‘Good

cause’

adduce

requires

a

showing

that

the

examination

could

specific facts relevant to the cause of action and necessary to the
defendant’s case.”

Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388,

391 (S.D. Tex. 2013).

Factors relevant to a finding of good cause

include “the possibility of obtaining the desired information by
other means, whether plaintiff plans to prove her claim through
testimony of expert witnesses, whether the desired materials are
relevant, and whether plaintiff is claiming ongoing emotional
distress.”

Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 165

(N.D. Cal. 2013) (internal citation and quotations omitted).
Because the Court does not find that plaintiff Polo
has placed his mental condition in controversy, the Court only
considers whether good cause exists as to plaintiff Flores.

Three

of the four listed relevant factors weigh in favor of finding that
good cause exists for an IME for plaintiff Flores.

First, in her

discovery responses, Flores stated that she has not received
psychological or psychiatric treatment (Docket No. 21 at p. 6);

Civil No. 13-1391 (FAB)
thus,

information

discoverable

through

7

regarding
means

her

other

mental
than

a

condition
mental

is

not

examination.

Second, because, as explained above, Flores enumerates several
specific mental

conditions

constituting

“serious

physical

and

emotional injury,” (Docket No. 7-1 at ¶ 13), an IME is relevant to
assessing the validity and extent of her damages allegations.
Third, Flores claims that she continues to suffer serious emotional
injury. Id.

Though plaintiff has not indicated any plans to prove

her claim through exert witness testimony, “courts have found that
a defendant should not be compelled to limit its case to mere cross
examination.”

Ornelas, 292 F.R.D. at 392 (citing cases).

Given

these factors, the Court finds that defendant has shown that good
cause exists to order an IME for plaintiff Flores.
II.

Conclusion
For the reasons articulated above, plaintiffs’ motion for a

protective order (Docket No. 20) is DENIED.

Defendant’s Rule 35

motion for an independent medical examination (Docket No. 21) is
GRANTED as to plaintiff Flores, but DENIED as to plaintiff Polo.
Flores is ORDERED to appear at the scheduled examinations currently
scheduled for the following dates:
1.

June 13, 2014, from 11:00 a.m. to 1:00 p.m.;

2.

June 16, 2014, from 4:00 p.m. to 6:00 p.m.; and

3.

June 25, 2014, from 3:00 p.m. to 5:00 p.m.

Civil No. 13-1391 (FAB)

8

IT IS SO ORDERED.
San Juan, Puerto Rico, June 11, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE