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Ashby v. Mortimer

United States District Court, D. Idaho

January 22, 2019

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.




         The 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.


         The 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 20, 1980.

         Many years later, Rowlette received notification from that a DNA sample she had submitted matched a sample submitted by Dr. Mortimer. 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 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 Ashby.[1]

         While 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.


         Under 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)).

         A 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).

         While the party seeking the examination must generally establish the “controversy” and “good cause” requirements:

[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.

         Granting 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. ...

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