Does Rule 35 Allow Mental Examinations?

If my experience in the last few years is at all typical, then the claims du jure are 1) mild traumatic brain injuries; and 2) post-traumatic stress disorder.[1]  This then leads to requests for mental examinations per Rule 35.  When are they merited?

The plaintiff in Gurshin v. Bank of America alleged gender discrimination and retaliation.[2]  BoA wanted a mental examination per Rule 35.  The plaintiff resisted and argued she had a garden variety emotional distress claim that did not justify a Rule 35 examination.

First Rule 35 does permit mental examinations.

“[C]ourts will order plaintiff to undergo medical examinations where the cases involve, in addition to a claim of emotion distress, one or more of the following: 1) a cause of action for intentional or negligent infliction of emotion distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress; 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff’s concession that his or her mental condition is ‘in controversy’ within the meaning of Rule 35(a).[3]

Only one factor is needed to satisfy Rule 35.  For instance, “[h]ospitalization and attempted suicide are manifestations of unusually severe emotional distress.” If one factor is satisfied, good cause must still be shown.

“Factors considered in assessing whether ‘good cause’ exists include, but are not limited to: (1) ‘the possibility of obtaining desired information by other means;’ (2) ‘whether plaintiff plans to prove her claim through testimony of expert witnesses;’ (3) whether the desired materials are relevant;’ and (4) ‘whether plaintiff is claiming ongoing emotional distress.'”[4]

The plaintiff argued her “mental condition is not ‘in controversy’ because Gurshin has not alleged a separate claim for emotional distress and her emotional distress is not ongoing.”  The court disagreed because she had testified in deposition that she had two suicide attempts related to the conditions of her employment at BoA.  This was far beyond typical “pain and suffering” type distress.

She next argued no examination was merited because the same information was available from her medical records.  Except she “failed to point to specific medical records that would address their causation issues. Gurshin instead makes a general assertion that Gurshin’s medical records will provide Bank of America with adequate information about Gurshin’s medical condition.”  The court ultimately concluded an examination was appropriate.

[1] It also seems the threshold for PTSD is as low as seeing a news report about zika virus.
[2] 2:15-cv-323, 2016 U.S. Dist. LEXIS 10163; 2016 WL 384929 (D. Nev. Jan. 27, 2016)
[3] Id. (quoting Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995)).
[4] Id. (quoting Nguyen v. Qualcomm Inc., No. 09-1925, 2013 U.S. Dist. LEXIS 93826, 2013 WL 3353840 (S.D. Cal. July 3, 2013)).