Flanagan v . Keller CV-00-542-M 12/18/01
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Yvette Flanagan,
Plaintiff
v. Civil N o . 00-542-M
Opinion N o .
Keller Products, Inc.,
Defendant
O R D E R
Plaintiff has sued her former employer under Title V I I and
the F M L A . Before the court is defendant’s Motion Requesting an
Independent Medical Examination Pursuant to F E D . R . C I V . P . 3 5 .
Plaintiff objects.
The Federal Rules of Civil Procedure provide, in pertinent
part:
When the mental or physical condition . . . of a
party . . . is in controversy, the court in which the
action is pending may order the party to submit to a
physical or mental examination by a suitably licensed
or certified examiner. . . . The order may be made
only on motion for good cause shown . . . .
F E D . R . C I V . P . 35(a); see also Schlagenhauf v . Holder, 379 U . S .
104, 118 (1964). “The party seeking to compel the evaluation
bears the burden of affirmatively establishing the ‘in
controversy’ and ‘good cause’ requirements.” Ford v . Contra
Costa County,
(N.D. Cal. 1998) (citing
Schlagenhauf, 379 U.S. at 1 1 8 ) . As to how the moving party must
establish the “in controversy” element, when
[a]pplying the Schlagenhauf standard, to the “in
controversy” requirement, Rule 35 motions
are typically granted when one or more of the
following factors are present: 1 . a cause of
action for intentional or negligent
infliction of emotional distress; 2 . an
allegation of a specific mental or
psychiatric injury or disorder; 3 . a claim of
unusually severe emotional distress; 4 . the
plaintiff’s offer of expert testimony to
support a claim of emotional distress; and/or
5 . the plaintiff’s concession that her mental
condition is ‘in controversy’ within the
meaning of Rule 3 5 .
O’Sullivan v . State of Minnesota,
2 0 , 322 (N.D. Ga.
2000).
While defendant argues that plaintiff’s mental condition is
in controversy because she has claimed “mental anguish,” and
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because she referred to her mental health history in response to
some of defendant’s deposition questions, none of the five
factors listed in Bethel is met by defendant’s proffer in this
case. Plaintiff’s cause of action for negligent infliction of
emotional distress has been dismissed. Plaintiff claims no
specific mental or psychiatric injury or disorder. Plaintiff has
specifically renounced any claim to damages for unusually severe
emotional distress, and claims only the “garden variety” mental
anguish normally and reasonably resultant from the acts of
harassment she alleges. Plaintiff does not propose to offer
expert testimony to support her claim of emotional distress. And
plaintiff does not concede that her mental condition is in
controversy.
Because plaintiff’s case involves a standard claim for
mental anguish, see Ford,
(“the bulk of the
reported case law demonstrates that a claim for emotional
distress damages, by itself, is not sufficient to place the
plaintiff’s mental condition in controversy for purposes of FRCP
35(a)”) (citing Turner v . Imperial Stores,
9 , 92-97
(S.D. Cal. 1995)), and because defendant has justified its Rule
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35 request with nothing more than “mere conclusory allegations
[in its] pleadings,” Peters v . Nelson,
(N.D.
Iowa 1994) (quoting Schlagenhauf, 379 U.S. at 118-19), defendant
has not met its burden of affirmatively establishing that
plaintiff’s mental condition is in controversy. Accordingly,
defendant’s Rule 35 motion (document n o . 14) is denied.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
December 1 8 , 2001
cc: Linda S . Johnson, Esq.
Mark T . Broth, Esq.
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