United States District Court, D. Idaho
SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs,
GERALD MORTIMER, M.D., and OBTESTRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS, P.A., an Idaho professional corporation, Defendants.
MEMORANDUM DECISION AND ORDER
C. NYE CHIEF U.S. DISTRICT COURT JUDGE
Court has before it Plaintiffs' Motion to Compel a
Paternity Test pursuant to Federal Rule of Civil Procedure
35. Dkt. 34. Having reviewed the parties' briefs and the
record, the Court finds good cause to GRANT Plaintiffs'
Motion, and orders Defendant Gerald Mortimer (“Dr.
Mortimer”) to submit to a buccal swab paternity test.
facts of this case are set forth in this Court's Order
dismissing various parties and granting in part and denying
in part Dr. Mortimer's Motion to Dismiss. Dkt. 40. In
brief, Plaintiffs Ashby and Fowler are a formerly married
couple who became patients of Defendant Obstetrics and
Gynecology Associates of Idaho Falls (“OGA”),
under the care of Dr. Mortimer, an OB/GYN, when they
struggled to conceive. Upon examination, Dr. Mortimer
diagnosed Ashby and Fowler with various fertility issues and
recommended that the couple undergo a form of artificial
insemination in which donor sperm from an anonymous donor
would be mixed with Fowler's sperm in a lab prior to
insemination to increase the chances of conception. The
couple agreed, and Dr. Mortimer performed the artificial
insemination procedure on various occasions in June, July,
and August of 1980. In August 1980, Ashby discovered she was
pregnant. Ashby gave birth to daughter Kelli Rowlette on May
years later, Rowlette received notification from Ancestry.com
that a DNA sample she had submitted matched a sample
submitted by Dr. Mortimer. Ancestry.com predicted there was a
parent-child relationship between the two individuals based
upon the samples it reviewed. Rowlette did not know Dr.
Mortimer and was completely unaware that her parents had
undergone artificial insemination to help them conceive.
Rowlette confronted her parents regarding the Ancestry.com
results, and the three ultimately brought the instant suit
alleging that instead of using sperm from an anonymous donor,
Dr. Mortimer used his own sperm to inseminate
denying Plaintiffs' allegations, Dr. Mortimer has refused
Plaintiffs' request that he submit to a DNA test to prove
(or disprove) his paternity of Rowlette. Plaintiffs filed the
instant motion to compel Dr. Mortimer's submission to a
buccal (cheek) swab DNA test.
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 a suitably licensed examiner” upon a showing of good
cause. Fed.R.Civ.P. 35(a). An order requiring an examination
under Rule 35 may be issued only (1) when the mental or
physical condition of the party or person in the party's
custody is “in controversy” and (2) good cause
supports the order. Schlagenhauf v. Holder, 379 U.S.
104, 119 (1964)).
party's mental or physical condition is “in
controversy” when such condition is the subject of the
litigation. Robinson v. Jacksonville Shipyards,
Inc., 118 F.R.D. 525, 531 (M.D. Florida 1988).
“Whether good cause is established depends on both
relevance and need.” Pearson v. Norfolk-Southern
Ry., Co., Inc., 178 F.R.D. 580, 582 (M.D. Alabama 1998)
(citations omitted). In determining whether there is need,
the court must examine the ability of the movant to obtain
the desired information by other means. Id. (citing
Schlagenhauf, 379 U.S. at 118).
the party seeking the examination must generally establish
the “controversy” and “good cause”
[T]here are situations where the pleadings alone are
sufficient to meet these requirements. A plaintiff in a
negligence action who asserts mental or physical injury . . .
places that mental or physical injury clearly in controversy
and provides the defendant with good cause for an examination
to determine the existence and extent of such asserted
injury. This is not only true as to a plaintiff, but applies
equally to a defendant who asserts his mental or physical
condition as a defense to a claim, such as, for example,
where insanity is asserted as a defense to a divorce action.
Schlagenhauf, 379 U.S. at 119.
or denying a motion for a physical examination “rests
in the sound discretion of the trial court.”
Coca-Cola Bottling Co. of Puerto Rico v. Negron
Torres, 255 F.2d 149, 153 (1st Cir. 1958) (citing
Bucher v. Krause, 200 F.2d 576, 584 (7th Cir. 1952).
Like other rules of discovery, Rule 35 should be
“construed liberally in favor of 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.” Does I-XIX v. ...