Doe v. Haley et al

Filing 129

ORDER AND OPINION granting 125 Motion for Discovery as set out. Signed by Honorable G Ross Anderson, Jr on 12/23/2013.(mbro)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
John Doe, minor child, by and through
his Guardian, Jane Doe,
Plaintiff,
v.
Nikki Haley, et al.,
Defendants.

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C/A No.: 8:13-cv-01772-GRA

ORDER
(Written Opinion)

This matter comes before this court on the Motion of Defendants Boys Home
of the South, Inc., Vernon Hayes, Nicole Lindsey, Cynthia Brock, Richelle Owens,
South Carolina Department of Social Services, Robin Kubler, Merry Eve Poole,
Ursula Best, Cassandra Daniels, and Johnny Jones for Mental Examination of the
Plaintiff. ECF No. 125. Pursuant to Rule 35(a), Fed. R. Civ. P., the Defendants
request that this court order the Plaintiff to submit to a mental examination by their
psychiatry expert, Avram H. Mack, M.D., and order the Plaintiff’s guardian, Jane Doe,
to produce the Plaintiff for the examination. Id. The Plaintiff initially consented to the
proposed mental examination, but later withdrew his consent after the parties were
unable to agree to certain terms relating to the examination, specifically the proposed
length of the examination and the “limitations on the topics Dr. Mack may discuss with
the Plaintiff during the examination.” Id. “Plaintiff has agreed to present himself for a
medical examination as there is good cause to require such an examination and the
examination allows Defendants to evaluate Plaintiff’s psychological and emotional
damages.” ECF No. 126.

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“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.” Fed. R. Civ. P. 35(a)(1). The order
“may be made only on motion for good cause and on notice to all parties and the
person to be examined.” Fed. R. Civ. P. 35(a)(2)(A). Additionally, the 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,
therefore, 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
necessarily related. Schlagenhauf v. Holder, 379 U.S. 104, 118–19 (1964) (citations
omitted). These requirements “are not met . . . by mere relevance to the case,” but
by “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. This requires that “the
movant must produce sufficient information, by whatever means, so that the district
judge can fulfill his function mandated by the Rule.” Id. at 119.
Defendants assert, and Plaintiff concedes, that the “in controversy” and “good
cause” requirements of Rule 35(a) are satisfied because the Plaintiff, in his Amended
Complaint, ECF No. 1–2, has alleged that Defendants caused him to suffer “great
and permanent mental harm and injury, . . . emotional distress, alteration of his
lifestyle, psychological trauma, apprehension, anxiety, depression, embarrassment,

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shame, and a loss of enjoyment of life, all resulting from the abuse he suffered,” and
that this “has and will in the future cause him to spend money for mental health
treatment services.” ECF Nos. 1–2 & 125; See, e.g., Schlagenhauf, 379 U.S. at 119
(“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.”).
As this case involves claims of negligence and asserts various mental injuries,
this Court finds that mental injury is clearly in controversy and good cause exists for
an examination to determine the existence and extent of the mental injury. However,
there is still disagreement between the parties relating to the terms of the
examination.
Plaintiff’s counsel argues that it is unreasonable “that Plaintiff, a fourteen year
old child with attention deficit hyperactivity disorder (ADHD), endure a four hour
‘conversation’ with a medical doctor.” ECF No. 126. Plaintiff’s counsel wishes to
present at the examination and wants the ability to terminate the examination if he
feels the examination has become unduly difficult on the Plaintiff.

Id.

Plaintiff’s

counsel also objects to asking Plaintiff “about conversations with counsel and
disclosures made to counsel.” Id. Finally, Plaintiff’s counsel objects to video-taping
or audio-recording the examination, which Plaintiff’s counsel believes to be an
attempt “to obtain a second deposition of Plaintiff.” Id.
This Court acknowledges the concerns of Plaintiff’s counsel and agrees that
Dr. Mack should use the record in this case to “prepare himself and make more

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efficient use of the time allotted to him by the Court.”

Id.

However, this Court

believes that four hours is appropriate as a maximum amount of time for the
requested examination based on Dr. Mack’s assessment, given his experience
conducting psychiatric examinations of children and adolescents in legal matters,
including children with ADHD. ECF No. 128–1. Due to Plaintiff’s diagnosis of ADHD,
the examination shall be divided into several sessions, no longer than one hour each,
and additional breaks will be allowed at the Plaintiff’s request. Plaintiff’s counsel shall
be present at the examination for the purposes of ensuring that the Plaintiff, a minor
child, remains comfortable, but shall not unduly interfere in the examination.
Plaintiff’s counsel is permitted to end the examination if the examination becomes
oppressive.

If Plaintiff’s counsel chooses to end the examination, then Plaintiff’s

counsel shall submit a motion to this Court stating the specific reasons why this
examination was halted. Dr. Mack is a highly touted professional and this Court
expects him and all other involved parties to act in a professional manner with the
comfort of the child in mind. This examination shall not inquire into information that is
covered by the attorney-client privilege. Finally, this Court believes that video-taping
or audio-recording the examination is appropriate to preserve an accurate record of
this examination. ECF Nos. 128 & 128–1.
IT IS THEREFORE ORDERED that Defendants’ Motion for Mental
Examination is GRANTED. Plaintiff shall submit to a mental examination by Avram
H. Mack, M.D., on Monday, December 30, 2013 at 10:00 am (or such other time as
the parties may agree upon) at the office of Hite & Stone, 100 East Pickens Street,
Abbeville, South Carolina 29620. The examination shall be conducted orally, shall

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last no longer than four hours (exclusive of breaks), shall take place in a closed room
in which only Plaintiff, Plaintiff’s counsel, and Dr. Mack are present, and shall be
recorded via either video or audio.

This examination shall be limited to issues

relevant to this case, including whether the Plaintiff suffered any mental injuries as a
result of the Defendants’ conduct as alleged in the Amended Complaint, and shall not
include inquiries about attorney-client privileged information.
IT IS FURTHER ORDERED that Plaintiff’s guardian, Jane Doe, produce
Plaintiff for the above-referenced examination.
IT IS SO ORDERED.

December 23 , 2013
Anderson, South Carolina

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