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Carol Sherman v. Idaho Trout Processors Company Dba Idaho Trout Company

April 9, 2012


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court



The Court has before it Defendant's Motion to Compel Rule 35 Examination (Dkt. 28). The Court has read and fully considered the briefing and related materials submitted by the parties, and has further determined that oral argument will not significantly aid in its decision. Accordingly, the Court issues the following Memorandum Decision and Order granting Plaintiff's Motion.


Plaintiff, a former employee at Defendant's Filer, Idaho fish processing facility, brought this suit alleging she was terminated from her employment because of her disability in violation of the Americans with Disabilities Act (ADA). Plaintiff alleges that her disability stems from her arthritic knees. Compl. ¶ 6, Dkt. 1. Plaintiff further alleges that her disability did not prevent her from performing the essential functions of her employment, given reasonable accommodations, and that Defendant rebuffed her attempts to secure such accommodations, choosing to fire her instead. Id. ¶¶ 12-13.

Defendant brings this motion to compel Plaintiff to undergo a physical examination, termed a "Functional Capacity Assessment," on the ground that the examination is needed to "assess Plaintiff's alleged disability related to her knees and Plaintiff's ability to perform the essential functions of her former job." Mtn. to Compel at 5, Dkt. 26-1. The proposed examination would be performed by Scott Billing, an occupational rehabilitation specialist, and would encompass a variety of tests designed to assess physical vocational capacities including "work day tolerance, sitting tolerance, standing tolerance, upper extremity tolerance, walking tolerance and positional tolerances as well as lifting capabilities" in order to help determine "if accommodation is needed" and "the levels of activity that an individual physically could tolerate" in the context of vocational retraining. Decl. of Scott Billing at 1-2, Dkt. 26-4. Plaintiff suggests that the testing will take four to five hours, based upon representations made by Defendant's counsel. Aff. of Counsel ¶ 4, Dkt. 28-1. There is no indication in the record that the evaluation sought is in any way invasive or unusually painful or embarrassing. Defendant has endeavored to make the testing as convenient as possible for Plaintiff in terms of time and location.

Plaintiff has three primary objections to the proposed examination. First, Plaintiff argues that the evaluation necessarily cannot produce relevant, admissible evidence, because it has no bearing upon Plaintiff's "claim of bilateral arthritis in her knees." Pl.'s Resp. at 3, Dkt. 28. Second, Plaintiff argues that Defendant failed to specify the manner, conditions, and scope of the examination as required by Rule 35. Third, Plaintiff argues that Defendant has failed to demonstrate that good cause exists for ordering the examination, because Defendant has not shown that Plaintiff is "employable given her known conditions and circumstances." The Court has considered each of these arguments, and, for the reasons set forth below, has determined that they are without merit. Accordingly, the Court will grant Defendant's motion.


Rule 35 of the Federal Rules of Civil Procedure enables a court, on motion made upon good cause, to order a "physical or mental examination by a suitably licensed or certified examiner" of a party "whose mental or physical condition . . . is in controversy." Fed. R. Civ. Proc. R. 35(a)(1), 35(a)(2)(A). The Supreme Court has stated the test for compliance with the Rule as "whether the party requesting a mental or physical examination has adequately demonstrated the existence of the Rule's requirements of 'in controversy' and 'good cause.'" Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). In order to meet this test, the moving party must do more than demonstrate that the examination will produce relevant evidence; rather, it must show "that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Id. However, in cases in which the Plaintiff has placed her own physical or mental condition "clearly in controversy," reference to the allegations in the pleadings may be enough. Id at 119.*fn1 In such cases, the "good cause" requirement is satisfied by the central importance of the evidence sought to be obtained to the determination of the merits of Plaintiff's claim. Id.


I.The requested examination may yield relevant evidence.

Plaintiff argues that because the desired examination is not capable of shedding light upon the existence or nonexistence of a specific disability -- Plaintiff's bilateral arthritis -- it cannot produce evidence relevant to the case. To the extent this argument suggests that Plaintiff's physical vocational capacities are not in controversy, the argument is unpersuasive. Plaintiff's claim, and any defenses to it, do not necessarily depend solely upon whether Plaintiff suffers from bilateral arthritis; rather, it also turns on whether she is "disabled" within the meaning of the ADA. Moreover, even if the Defendant concedes that Plaintiff has arthritis, the Defendant may defend against Plaintiff's ADA claim either by showing that Plaintiff's arthritis did not rise to the level of a disability, or that her arthritis was so severe and so constraining that it rendered her unqualified to continue in her employment, with or without an accommodation.

Thus, Plaintiff has placed her physical vocational capacities in controversy, and the requested Functional Capacity Assessment, which is designed to assess precisely those capacities, may yield information directly relevant to the merits of Plaintiff's claims, to the extent of her damages, and ...

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