United States et al v. Universal Health Services, Inc., et al.

Filing 254

OPINION AND ORDER granting MOTION to Compel (Expedited) Unaccompanied Mental Examination of Relator Webb and Relator Johnson Relator Webb and Relator Johnson 229 filed by Keystone Marion, LLC, Keystone Education and Youth Services, LLC, Universal Health Services, Inc.. Signed by Judge James P. Jones on July 13, 2011. (aec)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
UNITED STATES OF AMERICA, ET )
AL., EX REL. MEGAN L. JOHNSON, ET )
)
AL.,
)
Plaintiffs,
)
)
v.
)
)
UNIVERSAL HEALTH SERVICES INC., )
)
ET AL.,
)
Defendants.
)

Case No. 1:07CV00054
OPINION AND ORDER
By: James P. Jones
United States District Judge

Mark T. Hurt, Abingdon, Virginia, for Plaintiffs Megan L. Johnson and
Leslie L. Webb; Peter Leininger, Fulbright & Jaworski, LLP, Washington, D.C.,
for Defendants Keystone Education and Youth Services, LLC, and Keystone
Marion LLC d/b/a Marion Youth Center.
In this action alleging employment discrimination, wrongful discharge, and
retaliation, the defendants seek to have the two individual plaintiffs examined by a
psychiatrist, based on their allegations of severe psychological harm caused to
them during their employment. The plaintiffs object to any such examination and
insist that, if permitted, a third person of their choosing be present during the
examination.
Because the parties cannot agree, the defendants have filed a Motion to
Compel pursuant to Federal Rule of Civil Procedure 35(a), in which they seek an
order requiring the plaintiffs to submit to an unaccompanied medical examination

by the defendants’ expert. The motion has been briefed and argued and is ripe for
decision.
For the reasons that follow, I will grant the motion for unaccompanied
examinations.
The defendants have previously disclosed opinions under Rule 26(a)(2) from
their medical expert, Keyhill Sheorn, M.D. These opinions, based solely on the
medical records and absent any examinations, are that no psychological harm was
caused to them by their employment. The plaintiffs contend that because of these
opinions, the defendants have no need for an actual examination.
I disagree. Rule 35(a) permits the court to order -- upon motion and for
good cause -- a mental or physical examination of a party whose mental or
physical condition is in controversy in the case. The plaintiffs contend that they
suffer, among other things, from post-traumatic stress disorder (“PTSD”) as a
result of their employment by the defendants. Clearly the psychological condition
of the plaintiffs will be an important issue for the jury in this case. The plaintiffs
have indicated that they intend to present at trial the testimony of at least three
medical experts as to this issue. It would be hardly enlightening to the jury, or fair
to the defendants, to allow only one side’s medical experts to have the benefit of
personal access to the plaintiffs. Accordingly, I find good cause exists for a
medical examination of each plaintiff.

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The question of allowing the plaintiffs to be accompanied at the
examinations is a more difficult one.

Counsel for the plaintiffs contend that

because of their psychological conditions, the plaintiffs are afraid of appearing
alone during the examinations, and wish to be accompanied by some other person.
Plaintiffs’ counsel has submitted letters from treating physicians of each plaintiff
supporting this request. The defendants in turn have submitted a declaration of Dr.
Sheorn, in which she requests that no third parties be present during the
examinations. 1
The court must specify the manner and conditions under which a Rule 35
examination takes place. The rule is silent as to whether third parties may attend
an ordered examination, and it appears that the majority view is that the outside
parties may not attend without a showing of good cause, in order to prevent
interference with the process or give undue advantage to the opposing party. See
Holland v. United States, 182 F.R.D. 493, 495 (D.S.C. 1998).
The requests by the plaintiffs that they be accompanied to the examinations
are not based on any showing that the Dr. Sheoen will use unusual or unorthodox
medical techniques.

Dr. Sheoen, according to the record, is an experienced

psychiatrist who specializes in the treatment of PSTD. There is certainly no
1

The plaintiffs object to the court’s consideration of Dr. Sheoen’s declaration
because it was not filed with the initial Motion to Compel. However, the declaration was
filed with my permission given at the motion hearing in order to complete the record.
Accordingly, I will deny the plaintiffs’ Motion to Strike (ECF No. 248).
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showing that she will intentionally cause the plaintiffs distress or treat them in any
unfair or oppressive manner. Indeed, plaintiffs’ counsel agrees that there is “a lot
of irrationality involved” in the plaintiffs’ fear of an examination.
The plaintiffs support their requests with letters from physicians. Chelsea
Hamman, M.D., plaintiff Webb’s family physician, says that she has “concern that
the stress of an un-chaperoned interrogational examination may be detrimental to
[Webb’s] psychiatric well being.” Chris Aiken, M.D., of the “Mood Treatment
Center” says that since the “evaluation is not being performed in a professional
therapeutic environment,” plaintiff Johnson should be accompanied by a “nurse.”
Dr. Sheorn’s concern is that a third party’s presence would contribute to an
“adversarial atmosphere,” suggesting to the examinee that she and the physician
are on opposing sides, which would be destructive of the physician’s ability to
elicit the “genuine responses” crucial to any evaluation. I share that concern.
With due respect to the opinions of plaintiffs’ physicians, it appears that they
are misinformed as to the circumstances under which the examination by Dr.
Sheorn will take place.

There is no evidence that a nurse or other additional

person with medical training would need to be present. Based upon the record, I
am confident that Dr. Sheorn will be able to appropriately handle any symptoms of
anxiety or distress that may result from the examinations.

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Accordingly, the defendant’s motion (ECF No. 229) is GRANTED. The
plaintiffs must present themselves for a medical examination by Dr. Sheorn at a
reasonable time and place. While of course the plaintiffs may be accompanied to
the place of examination, the defendants’ expert must be allowed an opportunity to
conduct an appropriate examination in private.
It is so ORDERED.
ENTER: July 13, 2011
/s/ James P. Jones
United States District Judge

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