McLachlan et al v. Granite School District et al
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR RULE 35 EXAMINATION OF PLAINTIFF-denying 30 Motion for Rule 35 Examination of Plaintiff. See Order for details. Signed by Magistrate Judge Paul M. Warner on 9/12/17. (jmr)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
WESTON MCLACHLAN and PATTY
MCLACHLAN, on behalf of themselves
and on behalf of the minor child, W.M.,
GRANITE SCHOOL DISTRICT; SHERRI
BRANCH, an individual and Vice Principal
at Eisenhower Jr. High; BRENDA
ZIMMERMAN, an individual and former
intern Vice Principal at Eisenhower Jr.
High; MARK ELLERMEIER, an
individual and Principal at Eisenhower Jr.
High; and JOHN DOES 1-25,
MEMORANDUM DECISION AND
DENYING MOTION FOR RULE 35
EXAMINATION OF PLAINTIFF
Case No. 2:16-cv-00405-CW-PMW
District Judge Clark Waddoups
Chief Magistrate Judge Paul M. Warner
District Judge Clark Waddoups referred this case to Chief Magistrate Judge Paul M.
Warner pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is Defendants’ Motion for Rule
35 Examination of Plaintiff (the “Motion”). 2 The court has carefully reviewed the written
memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the
United States District Court for the District of Utah, the court has concluded that oral argument is
See docket no. 21.
See docket no. 30.
not necessary and will determine the motion on the basis of the written memoranda. See
Defendants move this court for an order compelling Plaintiff W.M. to submit to a mental
examination pursuant to Rule 35 of the Federal Rules of Civil Procedure. Specifically, the
Defendants seek to have their expert, Dr. Mickle South assess W.M. for autism. 3 In relevant part,
Rule 35 provides:
(a) Order for an Examination.
(1) In General. The court where the action is pending 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. 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.
Fed. R. Civ. P. 35(a)(1)-(2). The decision to grant a Rule 35 examination is within the discretion
of the trial court.
Rule 35 . . . 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, 118-119 (1964). The Tenth Circuit “reviews discovery
decisions pertaining to Rule 35 examinations for an abuse of discretion.” Herrera v. Lufkin
Indus., 474 F.3d 675, 688 (10th Cir. 2007).
See docket no. 30 at 3.
Although the complaint alleges “mental and emotional injury” caused by “[t]he actions
and inactions of defendants,” 4 Plaintiffs have not asserted W.M.’s autism diagnosis “either in
support of or in defense of a claim.” Schlagenhauf, 379 U.S. at 119. However, Defendants argue
that W.M.’s autism diagnosis was put “in controversy,” not in the pleadings, but when the
Plaintiffs submitted a Rule 26 expert report which summarizes the diagnosis. 5 Defendants cite no
case law in support of their argument that a party’s mental condition can be put “in controversy”
by an expert report where the mental condition is not asserted in support of a claim. However,
whether W.M.’s autism diagnosis is properly “in controversy” is immaterial to the analysis,
because the court concludes that the Defendants have not established the “good cause”
requirement of Rule 35.
The Motion was filed over a year after Defendants were put on notice that Plaintiffs
alleged mental and emotional injury, and several months after all applicable deadlines have
passed. The complaint in this action was first filed in state court in April 2016. The deadline for
fact discovery was February 10, 2017, more than five months ago. Defendants argue that they
did not seek a mental examination of the W.M. during fact discovery because the autism
diagnosis is “simply not relevant to the legal claims raised in this lawsuit.” 6
Instead, Defendants assert that they sought a mental examination only after the Plaintiffs’
expert report was submitted, which, according to Defendants, first put W.M.’s autism diagnosis
in controversy. The Plaintiffs’ expert report was submitted on May 31, 2017. Defendants have
See Complaint, docket no. 2, exh. 1 at 15-19.
See docket no. 30 at 2.
Docket no. 34 at 2.
known the contents of Plaintiffs’ expert report since May 31, 2017. Even if the court accepts
Defendants’ argument that W.M.’s autism diagnosis was not put in controversy until the
submission of Plaintiffs’ expert report, Defendants have failed to explain their two-month delay
in requesting an order for a Rule 35 examination. It is not lost on the court that the Defendants
moved for, and received, an extension until July 19, 2017, to submit their expert counter report.
Yet, inexplicably, Defendants waited until August 1, 2017 to file the Motion.
Generally, the Federal Rules of Civil Procedure provide for expansive discovery
regarding “any nonprivilged matter that is relevant to any party’s claim or defense,” as long as it
is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Here, however, Defendants
have not provided any justification for bringing the Motion so far beyond the expiration of
applicable deadlines. Defendants have failed to adequately demonstrate good cause why a Rule
35 examination should be ordered now.
Finally, Defendants moved this court for the first time in their reply memorandum to
order in limine that Plaintiffs refrain from referring to W.M. as having autism, Asperger’s, or
PTSD in this litigation. Pursuant to Pursuant to civil rule 7-1(b) of the Rules of Practice for the
United States District Court for the District of Utah, “[n]o motion . . . may be included in a
response or reply memorandum. Such motions must be made in a separate document.” DUCivR
7-1(b)(1)(A). Therefore, the court declines to rule on Defendants’ motion in limine contained in
the reply memorandum.
For the foregoing reasons, Defendants’ Motion for Rule 35 Examination of Plaintiff is
IT IS SO ORDERED.
DATED this 12th day of September, 2017.
BY THE COURT:
PAUL M. WARNER
Chief United States Magistrate Judge
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