United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Court has before it the parties' briefs regarding the
scope and duration of Defendants' FRCP 35 Examinations.
Defendants have proposed two separate Rule 35 Examinations
for each Plaintiff, one by a psychologist and one by a
psychiatrist, to be conducted over fourteen hours, on two
separate days. Plaintiffs' have objected to
Defendants proposal to do two exams, and to take more than
ten hours over one day to examine each Plaintiff. For the
reasons explained below, the Court orders that
Defendants' shall be allowed a single Rule 35 Examination
for each Plaintiff, which shall take place for up to twelve
hours over two days.
the Federal Rules of Civil Procedure, a court “may
order a party whose mental or physical condition . . . is in
controversy to submit to a physical or mental examination by
suitably licensed examiner” upon a showing of good
cause. Fed.R.Civ.P. 35(a). Courts have broad discretion to
“structure the time and manner of medical
examinations.” Nicholas v. Wyndham Intern.,
218 F.R.D. 122 (D.V.I. 2003). Like other rules of discovery,
Rule 35 should be construed liberally in favor of an
examination, but the Court must “balance the right of
the party to be examined to avoid personal invasion against
the moving party's right to a fair trial.”
Franco v. Boston Scientific Corp., 2006 WL 3065580
(N.D. Cal. Oct. 27, 2006).
parties do not dispute that Plaintiffs' mental condition
is in issue, nor do they question whether good cause exists
for Defendants to conduct a Rule 35 examination of each of
the Plaintiffs. Instead, this dispute centers over the length
of the examination, and whether Defendants are entitled to
conduct two separate interviews by two separate examiners, in
addition to a written exam, and produce two separate reports
for each Plaintiff.
outset, the Court rejects Defendants' suggestion that
their proposal - allowing their psychologist to conduct a
written exam and an interview, and allowing their
psychiatrist to conduct a separate interview exam -
constitutes a single Rule 35 exam. Their argument in that
regard defies logic. Using two mental health professionals to
conduct two separate interviews, particularly when they will
prepare two separate reports, and offer two opinions at
trial, does not sound like a single Rule 35 exam. The Court
will thus consider whether it is proper to subject each
Plaintiff to two separate Rule 35 exams.
there is no Ninth Circuit precedent determinative of whether
Defendants are entitled to conduct two exams, the Court finds
that persuasive authority exists to support Plaintiffs'
contention that two exams are not warranted in this case.
See Vopelak v. Williams, 42 F.R.D. 387, 389 (N.D.
Ohio 1967) (“It seems fair to say that under certain
circumstances, a second examination is authorized by the
rule, but the court should require a stronger showing of
necessity before it will order such repeated
examination.”). The Court agrees with Defendants that
they are “entitled to a ‘balanced
opportunity' to rebut” Plaintiffs' reports.
Def.'s Br. at 2, Dkt 228 (citing Halliday v.
Spjute, 2015 WL 3988903, at *2-3 (E.D. Cal. June 30,
2015). But Defendants have provided no evidence, nor any
authority for why they should be entitled to conduct two
examinations. Plaintiffs are each submitting a single report,
authored by a single testifying witness, which covers a
single written examination and single interview examination.
While Defendants have provided evidence that the substance of
their proposed interviews will not substantially overlap,
they have not made a strong showing as to why a second
interview, or separate reports by separate testifying
experts, are necessary to rebut Plaintiffs' expert
the duration of the examinations, the Court recognizes that
the proposed Rule 35 examinations present a substantial
emotional burden to the Plaintiffs. The Court acknowledges
that discussing the abuse underlying Plaintiffs claims may be
difficult, traumatizing, and mentally and emotionally
exhausting. But while some courts have limited defense
examinations to a single day in similar cases, see
Pl.'s Br. at 2, Dkt. 227, there is no rule
preventing the Court from exercising its discretion to allow
a Rule 35 exam to take place over multiple days, upon a
showing of good cause.
Defendants have offered good cause as to why their experts
need two days to conduct an appropriate examination of
plaintiffs, including a desire to ensure the parties have the
flexibility necessary to complete each portion of the
examination, as well as to provide time for adequate breaks.
The Court recognizes that Plaintiffs may find examination by
defense experts to be antagonistic, but there is no evidence
that Defendants' experts are anything but neutral
practitioners. The Court assumes defense experts will conduct
Plaintiffs' examinations with the same professionalism
and care as they would any other patient. Thus, the Court
declines to limit Defendants examinations to a single day.
such, the Court will allow Defendants to conduct examinations
lasting up to twelve hours over two days. As discussed above,
however, Defendants are only allowed a single examination,
consisting of a written session and an interview session, for
each Plaintiff. On the basis of this examination, Defendants
are allowed to introduce a single report by a single
testifying expert. Defendants may determine the structure of
their examination within these parameters, e.g., whether they
intend to have their psychologist conduct a written
examination and their psychiatrist conduct an interview, or
whether they intend to have one expert conduct both portions
of the examination. Defendants shall also cover
Plaintiffs' costs for travel, food, and lodging, as
agreed by the parties.
were obligated to postpone the scheduling of Rule 35
examinations pending resolution of this dispute, and have
proposed amending the Case Management Order (Dkt. 139) to
allow for extra time to complete expert discovery. As such,
the Court finds that the deadlines for ...