Estate of Paul Heenan v. City of Madison et al
Filing
84
OPINION AND ORDER granting 24 Sealed Motion; granting 41 Motion for Leave to File. Signed by District Judge William M. Conley on 2/18/15. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
THE ESTATE OF PAUL HEENAN, by
Personal Representative John Heenan,
Plaintiff,
OPINION AND ORDER
v.
13-cv-606-wmc
THE CITY OF MADISON and STEPHEN
HEIMSNESS,
Defendants.
Before the court is plaintiff’s motion for an independent mental examination of
defendant Stephen Heimsness pursuant to Federal Rule of Civil Procedure 35. (Dkt.
#24.) The court was initially inclined to deny the request given that a defense of tunnel
vision and/or auditory exclusion had only been eluded to in certain discovery responses,
but now that defendant has served an expert report opining on the role of these
conditions in Heimsness’s shooting of Paul Heenan, the court will order an examination
limited to the claim that tunnel vision and auditory exclusion may have played a role in
the shooting. In granting this motion, the court finds that plaintiff’s request meets the
requirements of Rule 35, but expressly reserves on the relevance or admissibility at trial
of any opinion on this subject, whether offered by defendant or plaintiff. For the reasons
explained below, the court will also allow the examiner to consider and evaluate
Heimsness for any mental or physical health issue that may reasonably assist in assessing
this claim, but expressly declines to direct that the examination specifically include or
exclude Heimsness’s claimed PTSD.
OPINION
I. Rule 35 Standard
Federal Rule of Civil Procedure 35(a) provides in pertinent part
(a) Order for an Examination.
(1) In General. 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. 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.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on
notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and
scope of the examination, as well as the person or persons
who will perform it.
To obtain a Rule 35 examination, a party seeking an examination must show that
each condition for which the examination is sought is “genuinely in controversy” and
that “good cause exists for ordering the examination.” Schlagenhauf v. Holder, 379 U.S.
104, 118-19 (1964).
Here, plaintiff seek a mental health examination to assess (1)
Heimsness’s claim of tunnel vision and auditory exclusion, which defendants assert
Heimsness experienced at the time he shot Heenan; and (2) the severity and date of
origin of Heimsness’s alleged post-traumatic stress disorder (PTSD).
consider each condition in turn.
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The court will
II. Tunnel Vision and/or Auditory Exclusion
Plaintiff’s motion pointed to excerpts from various investigatory materials
describing or eluding to tunnel vision and/or auditory exclusion at the time of the
shooting. (9/25/14 Declaration of Andrea J. Farrell (“9/25/14 Farrell Decl.”), Ex. A (dkt.
#26-1) (11/9/12 narrative of interview with Heimsness in which he alludes to not seeing
Officer Troumbly); id., Ex. B (dkt. #26-2) (1/1/13 City of Madison intra-departmental
memo mentioned auditory exclusion).) The motion also pointed to a February 12, 2014,
letter from Heimsness’s counsel maintaining his objection to plaintiff’s request for
information about “tunnel vision, auditory exclusion or freezing” on the basis that these
conditions are subject to expert review and opinion.
(Id., Ex. C (dkt. #26-3).)
Defendant then served an expert report on Heimsness’s police practices, which opines
that Heimsness “likely experienced the psychophysiological effects of perceptual
narrowing (‘tunnel vision’) and auditory occlusion or exclusion (diminished or total loss
of hearing) while fighting with suspect Heenan.” (1/9/15 Declaration of Andrea J. Farrell,
Ex. B (dkt. #43-2) ¶ 1.36.)
In response to plaintiff’s motion, defendant primarily argues that (1) the Fourth
Amendment excessive force standard is an objective one; and (2) thus, “[w]hether or not
[Heimsness] experienced tunnel vision or auditory exclusion is irrelevant to the objective
analysis.”
(Def.’s Opp’n (dkt. #27) 3.)
While the court agrees that defendant
Heimsness’s intent or motivation is not relevant to determining whether his use of force
was objectively reasonable, the inquiry necessarily touches on the total circumstances of
the encounter. Phillips v. Community Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012) (“An
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officer’s use of force is unreasonable if, judging from the totality of the circumstances at
the time of the arrest, the officer uses greater force than was reasonably necessary to
effectuate the arrest.”). As indicated above, whether defendant’s expert’s opinion or the
opinion of plaintiff’s mental health examiner comes in at trial will be an issue for another
day.
Defendant also opposed plaintiff’s motion on the basis that defendants had not
placed Heimsness’s mental state in controversy, labeling plaintiff’s position as “pure
fiction and unsupported by the record.” (Def.’s Opp’n (dkt. #27) 3.) While the record
presented with the original motion only contained passing references to these conditions,
defendant now has placed them in controversy by serving an expert report on
Heimsness’s police practices, in which the expert opines that Heimsness “likely
experienced the psychophysiological effects of perceptual narrowing (‘tunnel vision’) and
auditory occlusion or exclusion (diminished or total loss of hearing) while fighting with
suspect Heenan.” (1/9/15 Declaration of Andrea J. Farrell, Ex. B (dkt. #43-2) ¶ 1.36.)
Why this is relevant given defendants’ earlier assertions is not explained, but at this stage
of discovery, it would appear both that: (1) whether Heimsness suffered from tunnel
vision and auditory exclusion is now genuinely in controversy; and (2) any reliance on
these conditions in forming his defense constitutes good cause to allow plaintiff an
opportunity to explore those claimed conditions through an independent mental health
examination.
See Goodman v. Harris Cnty., 571 F.3d 388, (5th Cir. 2009) (affirming
district court’s order of defendant police officer’s mental examination in order “to level
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the playing field because [defendant] had indicated that he intended to prove what
happened on the night of the shooting through the use of psychological evidence”).
III. Post-Traumatic Stress Disorder
Plaintiff also seeks to assess Heimsness’s post-traumatic stress disorder diagnosis,
as well as the onset of that condition. In support for this specific request, plaintiff points
to: (1) a June 28, 2013, disability medical report, indicating that Heimsness suffers from
post-traumatic stress disorder; and (2) a June 3, 2013, session note from his therapist
indicating that the session’s focus include a “review of chronic vicarious traumatization
over 14 year course of policing.” (9/25/14 Farrell Decl., Exs. D, E (dkt. ##26-4, 26-5).)
Unlike the claimed tunnel vision and auditory exclusions, however, there is no support in
the record that Heimsness intends to rely on a possible PTSD diagnosis as part of his
testimony about the total circumstances surrounding the shooting. To the contrary, the
evidence suggests that the PTSD diagnosis occurred as a result of the shooting. (See
9/25/14 Farrell Decl., Ex. E (describing nature of injury as “officer-involved shooting
involving death of the suspect, and protracted public scrutiny/stress”).)
Plaintiff persists that Heimsness’s PTSD diagnosis may impact his memory of the
events. (Pl.’s Opening Br. (dkt. #24) 4, 10.) Such a basis could ring true for practically
any witness suffering from a mental health issue, and does not constitute good cause for
subjecting a party to psychological examination. Unlike a plaintiff who is seeking to
recover damages for emotional or psychological injuries, see Walti v. Toys R Us, No. 10 C
2116, 2011 WL 3876907, at *2 (N. D. Ill. Aug. 31, 2011), there is no basis for finding
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Heimsness’s PTSD diagnosis relevant, or even if relevant, admissible under Rule 403, not
to mention meeting the higher standard of genuinely in controversy under Rule 35,
unless the mental health examiner believes that inquiry is reasonably related to
Heimsness’s claimed psychological limitations. See, e.g., Matthew Tull, The Fight or Flight
Response:
Our
Body’s
Response
to
Stress,
About
Health,
available
at
http://ptsd.about.com/od/symptomsanddiagnosis/a/fight_flight.htm (last visited Feb. 18, 2015).
Accordingly, the court will order defendant Stephen Heimsness to submit to a
psychological examination limited to Heimsness’s claim that he suffered tunnel vision or
auditory exclusion at the time of the shooting, at the office of Dr. Alan F. Friedman, 30
N. Michigan Avenue, Suite 1206, Chicago, IL 60602, at a date and time convenient to
Heimsness and Dr. Friedman.
ORDER
IT IS ORDERED that:
1) Plaintiff Estate of Paul Heenan’s motion for independent mental exam of
defendant Stephen Heimsness pursuant to Federal Rule of Civil Procedure 35
(dkt. #24) is GRANTED; and
2) Plaintiff’s motion for leave to file a supplemental brief (dkt. #41) is
GRANTED.
Entered this 18th day of February, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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