This topic is often contested as plaintiff’s may wish to limit the scope of testing or the time provided to the physician to perform an evaluation. Whose interest wins?
Painter v. Aaron Atwood, D.D.S., 2013 U.S. Dist. LEXIS 139403, 2013 WL 5428059 (D. Nev. Sept. 26, 2013) ruled on the issue. An employee accused a dentist of sexual harassment resulting in severe emotional trauma, the dentist stated their sexual relationship was consensual. Plaintiff’s resulting mental state was a primary issue in the case. The dentist asked the court for a psychological IME with local psychologist Lewis M. Etcoff, Ph.D. The crux of the dispute was the length of the examination. The dentist originally requested a full day, from 8:30 to 5:00. This request was later reduced to 5.5-6.0 hours. Dr. Etcoff provided a letter explaining why this amount of time was needed.
In the letter, Dr. Etcoff explains that, in order to conduct a complete and accurate forensic psychological evaluation of Plaintiff, he will first conduct a 2-3 hour interview with her. The interview will address Plaintiff’s “descriptions and perceptions of the incident, the context in which it occurred, and the physical, mental, and emotional impairments that may have resulted.” The interview will also address other stressors in Plaintiff’s life. Id. Dr. Etcoff will, additionally, administer two personality tests to Plaintiff: the Minnesota Multiphasic Personality Inventory-2RF (MMPI-2-RF), and either the Personality Assessment Inventory (PAI) or the Millon Clinical Multiaxial Inventory-III (MCMI-III). Dr Etcoff states that each of these tests is an objective measure of psychological testing, and that completion of them will take 2-3 hours.
Plaintiff opposed and asserted a 90 minute IME would be more than sufficient. She relied upon a declaration from Paul J. Janda, D.O., “who states that he is routinely required to make psychological evaluations and that he is able to conduct those evaluations in approximately 45 minutes. However, Dr. Janda does not state whether any of those evaluations were conducted for the purpose of preparing an expert opinion to be used at trial.” The court did not evaluate whether Dr. Janda as a neurologist would perform the same or substantively similar evaluations as Dr. Etcoff, a psychologist.
Plaintiff lost. “Defendants have the right to perform their own assessment, because one of the purposes of Rule 35 is to level the playing field in cases where physical or mental condition is at issue, because a plaintiff has ample opportunity for psychiatric or mental examination by his/her own practitioner or forensic expert.”
The Court is convinced that the proposed 5 ½ to 6 hours of testing, split between the interview and standard psychological testing, is necessary to obtain an accurate diagnosis. In fact, the courts in this Circuit have routinely permitted mental examinations of six hours or longer. See, e.g., Farier v. City of Mesa, 2008 U.S. Dist. LEXIS 89329, 2008 WL 4701049, *3 (D. Ariz. Oct. 23, 2008) (six hours); Louen v. Twedt, 2007 U.S. Dist. LEXIS 25906, 2007 WL 915226, *4 (E.D. Cal. Mar. 26, 2007) (full-day); Ayat v. Societe Air France, 2007 U.S. Dist. LEXIS 50988, 2007 WL 1120358, *9 (N.D. Cal. Apr. 16, 2007) (eight hours); Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161 (N.D. Cal. 2013) (five to six hours with the ability to extend if testing is not completed). Additionally, courts in this Circuit have found that the MMPI-2 and the MMI-III are proper tools for psychological assessment. See Ashley, 2013 U.S. Dist. LEXIS 77134, 2013 WL 2386655, *2.