158 F.R.D. 409 | N.D. Ill. | 1994
MEMORANDUM OPINION AND ORDER
Packaging Corporation of America (“Packaging”) seeks leave to obtain a psychological examination of Alice Jansen (“Jansen”) in her
What is at issue on Packaging’s motion is whether it has shown “good cause” (the precondition established by Fed.R.Civ.P. (“Rule”) 35(a)) for such a mental examination. As Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 242-43, 13 L.Ed.2d 152 (1964) has taught fully three decades ago:
Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every ease, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements, as the Court of Appeals in this case itself recognized, are necessarily related.
There is no question that by advancing such intangible harms as a component of her damages claim Jansen has not only placed her mental condition “in controversy” but has confirmed the existence of “good cause” for Packaging’s motion — as Schlagenhauf, id. at 119, 85 S.Ct. at 243 (citation omitted) went on to say:
Of course, there 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.
Indeed, in this instance the existence of the “good cause” component is doubly clear, for Jansen has not limited her claim by asserting that she suffered such harms only in the past — not only has she claimed continuing harm up to and including the present in her deposition (Dep. 456, 459-60, 461), but her attorney has confirmed that fact when questioned by this Court on the issue. That being so, any doubt that might exist as to an expert’s ability to gauge a prior mental state by means of a current examination could not serve as the basis for denying Packaging access to such an examination.
On the merits of whether such an examination should be permitted, this Court finds the numerous cases cited by Packaging far more persuasive than the few advanced by Jansen (in that respect it is true that Jansen’s citation of Cody v. Marriott Corp., 103 F.R.D. 421 (D.Mass.1984) is directly on point, but this Court disagrees entirely with the analysis and conclusion reached by the Magistrate in Cody). Indeed, the most recent of the few Court of Appeals decisions that have been cited by Jansen (Acosta v. Tenneco Co., 913 F.2d 205, 209 (5th Cir.1990)
What remains for consideration, then, is whether the person who will be permitted to conduct the examination should be designated by Packaging or should be someone appointed independently. In this instance Packaging’s proposed designee is a psychologist, someone who certainly comes within the scope of the congressional amendment to Rule 35 enacted in 1988.
This Court finds substantial force in Jansen’s arguments for the designation of an independent expert. Although Packaging essentially asserts that the honoring of its own
Indeed, it is somewhat ironic that Packaging asserts such vigorous (and justified) opposition to Jansen’s effort to have her own attorney present at the examination (as well as her effort to impose a number of other restrictions) on the ground that those efforts would “inject a greater degree of the adversary process into an evaluation that is to be neutral” (Packaging Mem. 8) and also because any such restriction “will, in all likelihood, foster a greater degree of advocacy in the conduct of the examination than is, already, unavoidably present” (id. at 10). If the real purpose of Packaging’s motion is the entirely legitimate one of seeking to obtain an independent and impartial insight into Jansen’s claims of mental harm, that purpose would seem to be better served by assuring true independence on the part of the examiner, rather than by forcing Jansen into a battle of the experts that she has not sought to join (let alone to initiate).
Accordingly Packaging’s motion to obtain a psychological examination of Jansen is granted. However, the parties are directed to confer promptly as to the identity of the proposed examiner, with a view towards submitting to this Court’s chambers on or before November 21, 1994 either a joint designation or separate lists of their respective proposed designees. This Court will then make its determination in that respect.
. Indeed, Packaging urges that those asserted intangible harms form the basis for almost all of Jansen's requested damages, for "her wage loss is negligible” (Packaging Mem. 1 filed October 19, 1994).
. By coincidence Packaging itself is a Tenneco subsidiary.
. Nothing in the 1991 amendment to Rule 35 narrows that scope.