May Dr. Etcoff Conduct Rule 35 Examinations?

Every lawyer has their preferred experts.  Every expert has their mortal enemies among opposing counsel.  This typically leads to motion practice arguing about the expert and, in the context of Rule 35, whether the expert is appropriate.  Lewis Etcoff, Ph.D. is a local psychologist who seems to draw the ire of opposing counsel.  I do not know why, I have never hired him but, given the size of the firms where I have practiced, someone in the firm may have at some point.  Is Dr. Etcoff an appropriate Rule 35 examiner?

The question arose in Painter v. Atwood,[1] previously discussed in a prior post.  There, the court noted there was no objection to Dr. Etcoff’s qualifications or licensure.  The only dispute was as to the length of the examination.  Given that Dr. Etcoff’s proposed procedure was within the realm of those that had been previously approved in the Ninth Circuit, the examination was approved.

Gurshin v. Bank of Am.[2] also addressed Dr. Etcoff.  It first noted that Painter had previously concluded Dr. Etcoff’s mental examination procedure was adequate.  Gurshin apparently argued Dr. Etcoff’s procedure was not “forensic” but did not elaborate what that meant or demonstrate how the argument was supported.  Instead, the court stated if the plaintiff “believes her proposed examiner will give a more accurate portrayal of Gurshin’s mental condition, Gurshin is free to submit an expert report by an examiner of her choosing by the expert disclosure deadline.”

The court then limited the time of examination to a total of five hours, but still gave considerable discretion to Dr. Etcoff to use it.  “Dr. Etcoff, as an experienced mental examiner, will have discretion about what topics to inquire on during Gurshin’s examination.”  Finally, the parties stipulated that the Rule 35 examination could be audio recorded.

Based upon this, it appears Dr. Etcoff is a proper Rule 35 examiner.

[1] 2:12-cv-1215, 2013 U.S. Dist. LEXIS 139403, 2013 WL 5428059 (D. Nev. Sept. 26, 2013).
[2] 2:15-cv-323, 2016 U.S. Dist. LEXIS 10163; 2016 WL 384929 (D. Nev. Jan. 27, 2016).