272 F.R.D. 505
E.D. Cal.2011Background
- Newman and Delta College dispute the parameters for a Rule 35 mental examination of Newman by Dr. Richard Perrillo.
- The parties stipulated: exam to occur in Stockton, with a standard verbal interview (no testing) and MMPI allowed but not MMPI-RF.
- Key disputed issues remained: which tests may be administered, exam duration, whether a support person may be present, and whether portions may be recorded.
- District seeks two 5-hour sessions on two days (Feb 8–9, 2011) with testing, breaks, and a broad testing universe; Newman objects to certain tests as unnecessary or burdensome.
- The court granted the motion to compel on the terms stated at the hearing, including two five-hour sessions and limits on recording, while allowing audiotaping of the clinical portion.
- Specific rulings include: Perrillo qualified to conduct the exam; tests may be those he deems necessary; no in-room third-party support; no videotaping; audiotaping of the clinical interview is permitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perrillo is qualified to conduct the exam | Newman argues Perrillo is unqualified to administer neuropsychological tests. | District contends Perrillo is suitably licensed and experienced for the exam. | Perrillo is qualified to administer the entire mental examination. |
| Scope of tests Perrillo may administer | Tests proposed are inappropriate, redundant, and burdensome for Newman. | Testing must be fluid; the universe of tests may be chosen as needed to assess impact of incident. | Dr. Perrillo may conduct the tests he deems necessary from his proposed list. |
| Duration of the exam | Two days of 11:00 a.m.–5:00 p.m. sessions are excessive. | Two five-hour sessions are reasonable to balance discovery needs and integrity of testing. | Two five-hour sessions over two days, inclusive of breaks, with potential for additional testing if needed. |
| Presence of a third-party observer during the exam | Newman needs a support person to accompany her due to psychological distress. | Third-party presence could contaminate testing and compromise exam integrity. | No third-party in the exam room; a support person may be nearby during breaks. |
| Recording of the exam | Videotaping should be permitted to provide a reference for the fact-finder. | Videotaping may undermine exam integrity and conflicts with professional duties. | No videotaping; audiotaping of the clinical interview portion is permitted. |
Key Cases Cited
- Ragge v. MCA/Universal Studios, 165 F.R.D. 605 (C.D. Cal. 1995) (courts favor examiner's discretion and limit encumbrances on Rule 35 exams)
- Morrison v. Stephenson, 244 F.R.D. 405 (S.D. Ohio 2007) (recording and observer considerations in Rule 35 examinations)
- Carpenter v. Superior Court, 141 Cal.App.4th 249 (Cal. Ct. App. 2006) (federal vs. state procedural rules on mental examinations; FRCP governs)