379 F. Supp. 3d 669
S.D. Ohio2019Background
- Angela Swartz sues DuPont alleging decades-long releases of C-8 from its Washington Works plant caused her kidney cancer and related harms, including emotional distress.
- DuPont previously agreed in a settlement not to contest general causation of C-8 but reserved the right to contest specific causation for individual plaintiffs.
- Swartz seeks compensatory damages for physical injury (cancer) and associated emotional distress; she does not assert a standalone claim for negligent or intentional infliction of emotional distress nor allege a specific psychiatric disorder.
- DuPont filed a motion under Fed. R. Civ. P. 35 requesting an independent mental examination (IME) to evaluate Swartz’s claimed anxiety, fear, and mental/emotional distress.
- The Court reviewed whether Swartz’s mental condition is “in controversy” and whether DuPont demonstrated “good cause” under Schlagenhauf to justify a Rule 35 IME.
- The Court denied DuPont’s motion, finding DuPont failed to show Swartz put her mental condition genuinely in controversy or that good cause exists for an IME.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Swartz’s mental condition is "in controversy" under Rule 35 | Swartz: emotional distress is incidental to her physical injury (cancer), not a separate mental/psychiatric injury; she will not offer psychiatric expert testimony | DuPont: complaint seeks emotional distress damages so mental condition is in controversy; prior MDL trials focused on emotional distress | Court: Not in controversy — distress is garden-variety and stems from physical injury; no specific psychiatric claim, no expert testimony, no concession by plaintiff |
| Whether DuPont established "good cause" for a Rule 35 IME | Swartz: DuPont has not shown IME information cannot be obtained by other discovery nor any reason the IME would reveal adverse information | DuPont: Good cause follows if mental condition is in controversy and substantial damages are sought; an IME is needed to evaluate claimed psychiatric harm | Court: No good cause shown — DuPont did not show inability to obtain info otherwise or any basis to believe IME would produce evidence adverse to plaintiff |
Key Cases Cited
- Schlagenhauf v. Holder, 379 U.S. 104 (U.S. 1964) (Rule 35 requires movant to show the condition is "in controversy" and demonstrate "good cause" for examination)
- Turner v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995) (emotional distress alone does not equate to a "mental injury" under Rule 35; plaintiff must assert a psychiatric injury to place mental condition in controversy)
- Tomlin v. Holecek, 150 F.R.D. 628 (D. Minn. 1993) ("mental" in Rule 35 refers to mental disorders and psychiatric conditions; garden-variety emotional distress insufficient)
- Jansen v. Packaging Corp. of Am., 158 F.R.D. 409 (N.D. Ill. 1994) (distinguishes cases where emotional distress is primary injury and supports IME; contrasted here because distress is secondary to physical injury)