Denny et al v. Wingspan Portfolio Advisors, LLC
Memorandum Opinion and Order granting 38 Expedited MOTION to Compel Mental Examinations: Dr. Lisa Clayton is authorized to conduct a standard forensic psychiatric evaluation of Plaintiffs Rosyln Denny and Bonita Wilson at a time and place agreed to by the parties. (Ordered by Magistrate Judge Paul D Stickney on 6/5/2013) (twd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ROSYLN DENNY and
WINGSPAN PORTFOLIO ADVISORS,
No. 3:11-CV-1094-D (BF)
Defendant Wingspan Portfolio Advisors, LLC has filed an Expedited Motion to Compel
Mental Examinations in this race and gender discrimination and retaliation case brought under
Title VII of the Civil Rights Act of 1964, the Texas Commission on Human Rights Act, and
42 U.S.C. § 1981. By its motion, Defendant seeks an order pursuant to Rule 35 of the Federal Rules
of Civil Procedure directing Plaintiffs Roslyn Denny and Bonita Winslow to submit to a mental
examination by Lisa Clayton, M.D., a board certified forensic psychiatrist. Plaintiffs oppose
Defendant’s motion on grounds that it is untimely and good cause does not exist for the
examinations. Plaintiff Denny further objects that her mental condition is not “in controversy” for
purposes of Rule 35. The parties have fully briefed their respective positions, and the motion is ripe
Rule 35 provides that, upon motion for good cause shown:
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
FED. R. CIV. P. 35(a)(1). A party must “affirmatively put into issue” her mental condition to warrant
a Rule 35 examination, and, even where a party’s mental condition is “in controversy,” there must
still be “good cause” to order the examination. Lahr v. Fulbright & Jaworski, L.L.P, 164 F.R.D 204,
208 (N.D. Tex. 1996) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 121 (1964)). The “in
controversy” and “good cause” 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, 379 U.S. at 118.
A Title VII plaintiff, like Plaintiffs here, affirmatively places her mental condition “in
controversy” when she alleges a permanent or ongoing mental disorder or emotional distress or
claims that she has required psychiatric or psychological care as a consequence of discriminatory
treatment. Lahr, 164 F.R.D at 209 (citing cases). By contrast, mere allegations of emotional distress
associated with claims of discrimination do not suffice to place a plaintiff’s mental condition “in
controversy” for purposes of Rule 35. See id. at 210. So-called “garden variety” emotional distress
damages, or allegations of generalized insult, hurt feelings, and lingering resentment for which a
plaintiff seeks no diagnosis or treatment, will not warrant a Rule 35 examination. See Turner v.
Imperial Stores, 161 F.R.D. 89, 95 (S.D.Cal. 1995).
“Good cause” requires a showing that the examination could adduce specific facts relevant
to the cause of action and necessary to the defendant’s case. Ornelas v. So. Tire Mart, LLC, --F.R.D. ----, No. 5:12-CV-132, 2013 WL 1395692, at *2 (S.D. Tex. Mar. 28, 2013). Factors relevant
to the “good cause” determination include whether the plaintiff has retained her own experts and
intends to prove her claim through expert testimony and whether the party seeking the mental
examination has exhausted alternative discovery procedures prior to seeking the examination. Id.;
Lahr v. Fulbright & Jaworski, L.L.P, 164 F.R.D 196, 200 (N.D. Tex. 1995). The court’s analysis
is “intensively fact-specific,” Lahr, 164 F.R.D. at 199, and “what may be good cause for one type
of examination may not be so for another.” Schlagenhauf, 379 U.S. at 118.
Plaintiffs initially object that Defendant’s motion should be denied as untimely because
Defendant failed to diligently pursue its request that they undergo mental examinations. See Plf.
Resp. at 3-4. According to Plaintiffs, Defendant waited “until the eleventh hour” and now the
examinations cannot be completed before the expiration of the discovery cutoff deadline in this case.
Id. The Court observes that Rule 35 does not specify a deadline in which to seek an order
compelling a mental examination, and the parties previously represented that they “diligently
complied” with discovery deadlines in this case. See Agd. Mot. Protective Order (Doc. 36) at 2, ¶ 4.
The parties specifically discussed the need for a mental examination and whether good cause for
such existed, but could not agree. Id., ¶ 5. When Plaintiffs’ counsel was unable to communicate
with one of her clients regarding Defendant’s request, the parties jointly sought and obtained an
extension of various pretrial deadlines specifically to accommodate Defendant’s Rule 35 motion.
See id. at 2-3, ¶¶ 6-8. Under these circumstances, Plaintiffs’ objection to Defendant’s motion as
untimely is overruled.
Now turning to the merits of Defendant’s motion, the Court considers whether Plaintiffs’
mental conditions are “in controversy” for purposes of Rule 35. Plaintiff Winslow alleges that she
has been diagnosed with major depressive disorder that was caused by “some of the things that [she]
was experiencing while [she] was working [for Defendant].” Def. Mot. App. at 22, 26. She claims
she received professional medical treatment for her depression and attended group therapy sessions.
See id. at 23-25. Winslow further alleges that her condition is ongoing, that she still takes
medication for stress and anxiety related to her depression, and that she has not been able to return
to work because of her condition. See id. at 21-22, 25. Significantly, Winslow also concedes that
her mental condition is in controversy. See Plf. Resp. at 5, ¶ 11. Thus, the Court has little difficulty
concluding that Winslow’s mental condition is “in controversy” for purposes of Rule 35.
Plaintiff Denny disputes that her mental condition is in controversy. She argues that she has
not claimed unusually severe emotional distress and attempts to characterize her condition as
“‘garden variety’ mental stress that everyone experiences when bad things happen.” Plf. Resp. at
6, ¶ 12. However, Denny describes her symptoms to include “headaches, backaches, stomach aches,
sleepless nights and insomnia, depression, loss of appetite, periods of nervousness and anxiety,
uncontrollable crying, and paranoia.” Def. Mot. App. at 5, Resp. to Interrog. No. 1. Denny testified
during her deposition that she also has experienced hair loss and has become “reclusive.” Id. at 12.
Because of Defendant’s conduct, she allegedly has stopped socializing, has had to minimize her
friendships, does not want to go outside, and has lost her enjoyment of life. Id. at 12-13. Denny
further testified that her mental anguish is “ongoing” and that she intended to seek counseling from
Dr. Neecie Moore. Id. at 13; Def. Reply App. at 11. The Court finds that these allegations of
ongoing emotional distress exceed mere allegations of “garden variety” mental anguish and are
sufficient to place Denny’s mental condition “in controversy” as well. See Ali v. Wang Laboratories,
Inc., 162 F.R.D. 165, 168 (M.D. Fla. 1995) (plaintiff placed mental condition in controversy by
alleging ongoing and serious emotional distress); Jansen v. Packaging Corp. of Am., 158 F.R.D. 409,
410-11 (N.D.Ill. 1994) (same).
The Court further concludes that Defendant has met its burden to show that good cause exists
for a Rule 35 mental examination. In a declaration submitted in support of Defendant’s motion,
Dr. Clayton explains:
The main basis of diagnosis in forensic psychiatry is a diagnostic
psychiatric interview, and this method is used by forensic
psychiatrists to evaluate plaintiffs who are making claims of mental
anguish, emotional pain and suffering, and similar allegations of
mental, psychological, or emotional harm. The standard forensic
psychiatric evaluation consists of an assessment of the plaintiff’s
background, including personal history and experiences,
psychiatric/psychological history, medical history, as well as an
examination of the plaintiff’s alleged mental and/or emotional
injuries claimed in the lawsuit. The Minnesota Multiphasic
Personality Inventory-2 (“MMPI-2”) test is also used in evaluating
plaintiffs who are making claims of mental anguish, emotional pain
and suffering, and similar allegations of mental, psychological, or
Def. App. at 35, ¶ 9. This explanation demonstrates “good cause” exists because the requested
mental examinations could adduce facts that are relevant to Plaintiffs’ claims of mental anguish and
Defendant’s defenses to those claims. See Ornelas, 2013 WL 1395692, at *2 (“good cause” requires
showing that examination could adduce facts relevant to plaintiff’s cause of action).
Plaintiffs argue that Defendant has not established good cause because the information
Defendant seeks is available from other sources, including their depositions and medical records and
the deposition of their treating physician which Defendant declined to take. Plf. Resp. at 7.
Plaintiffs further argue that good cause has not been established because they have not designated
an expert on mental anguish damages and do not intend to prove their claim for mental anguish
damages through expert testimony. Id. None of these facts is dispositive. A forensic psychiatric
evaluation may provide information about Plaintiffs’ alleged mental anguish and emotional distress
that is not available through medical records or the cross-examination of Plaintiffs’ treating
physician. See Lahr, 164 F.R.D. at 200 (ordering Rule 35 examination notwithstanding availability
of plaintiff’s medical records and deposition testimony). Indeed, Dr. Clayton has reviewed both
Plaintiffs’ depositions and various medical records and has determined that a standard forensic
psychiatric evaluation is still necessary in order to fully evaluate Plaintiffs’ claims of mental and
emotional injuries. Def. App. at 35, ¶ 10. Plaintiffs also have had the opportunity for a mental
examination by their own phsycian. Granting Defendant’s request for a Rule 35 examination in this
case only levels the playing field with respect to the mental conditions which Plaintiffs affirmatively
placed in controversy.
Finally, Plaintiffs request that the scope of the mental examinations conducted pursuant to
Rule 35 be limited to “the mental conditions and injuries sustained by Plaintiffs as a result of
Defendant’s unlawful discrimination and retaliation.” Plf. Resp. at 8. Dr. Clayton states in her
declaration that a standard forensic psychiatric evaluation, including a clinical interview and an
MMPI-2 test, is necessary in order to fully evaluate Plaintiffs’ claims of mental and emotional
injuries. Def. App. at 35, ¶ 10. Plaintiffs do not indicate why such an evaluation is unnecessary in
this case. Nor do they identify any particular part of the proposed evaluation as inappropriate or
unduly burdensome. Accordingly, the Court will limit the Rule 35 examination to a standard
forensic psychiatric evaluation, as described by Dr. Clayton’s declaration. Lahr, 164 F.R.D. at 196
(“For the court to intervene and limit the type of examination an expert has indicated is necessary
in order to analyze plaintiff’s claims would subvert the truth finding function inherent in Rule 35
For these reasons, Defendant’s Expedited Motion to Compel Mental Examinations (Doc. 38)
is GRANTED. Dr. Lisa Clayton is authorized to conduct a standard forensic psychiatric evaluation
of Plaintiffs Rosyln Denny and Bonita Wilson at a time and place agreed to by the parties.
SO ORDERED, June 5, 2013.
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
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