MEMORANDUM AND ORDER
Pending before the Court is “Defendant’s Motion to Examine Plaintiff,” (Dkt. No. 15), filed March 4, 2013. Therein, Defendant, Southern Tire Mart, LLC, “asks the Court to order Plaintiff to submit to physical and mental examinations with Defendant’s experts, as authorized by Federal Rule of Civil Procedure 35.” (Id. at 1). More specifically, “Defendant proposes that Dr. Gregory Goldsmith, Dr. Francisco Perez, and Mr. William Quintanilla be allowed to conduct the personal examinations of Plaintiff.” (Id. ¶ 9). Dr. Goldsmith is a board certified orthopedic surgeon, Dr. Perez, a board certified neuropsy-chologist, and Mr. Quintanilla, a vocational rehabilitation expert. (Id.).
In support of its motion, Defendant contends that “Plaintiffs physical and mental condition is in controversy,” as Plaintiff has alleged “ongoing” and “‘extensive physical and emotional injuries,’ ” which include “‘cervical and lumbar sprains and multiple disc herniations to his neck.’ ” (Id. ¶ 7). Defendant additionally argues that good cause exists to compel Plaintiff to submit to the aforementioned examinations “to determine the extent of Plaintiffs alleged injuries and the future impact of those injuries on Plain
I. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 35 grants courts the discretionary authority to order a party “whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R.Civ.P. 35(a)(1). Because parties have no inherent right to examine the mental or physical health of an adversary, Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 623 (D.Kan.1999), the court’s order may be made “only on motion for good cause” and on notice to all parties and the person to be examined. Fed.R.Civ.P. 35(a)(2)(A). Rule 35, as contrasted with the other discovery provisions, is distinct in its requirements that the party requesting such a mental or physical examination must affirmatively establish that the condition is “in controversy” and “good cause” exists for the examination, two requirements which are “necessarily related.” Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 196, 199 (N.D.Tex.1995) (citing Schlagenhauf v. Holder, 379 U.S. 104, 117, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)). The Supreme Court has made explicit that “there must be a greater showing of need under Rule[ ] ... 35 than under the other discovery rules;” to require otherwise, and to accept a showing of mere relevance, would render the “good cause” requirement meaningless. See Schlagenhauf, 379 U.S. at 118, 85 S.Ct. 234. Thus, while the Federal Rules of Civil Procedure are to be liberally construed, they “should not be expanded by disregarding plainly expressed limitations.” Id. at 121,85 S.Ct. 234.
a. The “In Controversy” Requirement
The Rule 35 inquiry has been deemed “intensively fact-specific,” which contributes to the inconsistent rulings issuing from federal courts. Lahr, 164 F.R.D. at 199. There are two primary ways in which the mental or physical condition of a plaintiff may be placed “in controversy” in the context of Rule 35. One scenario is where the defendant seeks to place the plaintiffs health in controversy by way of an asserted defense to the underlying action. Bowen v. Parking Auth. of City of Camden, 214 F.R.D. 188, 192 (D.N.J.2003). In such cases, the defendant bears the burden of showing that the plaintiffs mental or physical state is in controversy. Womack v. Stevens Transp., Inc., 205 F.R.D. 445, 447 (E.D.Pa.2001). Alternatively, the plaintiff can place his or her mental or physical condition in controversy through representations made during the course of litigation. There are situations where the pleadings alone are sufficient to establish the “in controversy” requirement. Schlagenhauf, 379 U.S. at 119, 85 S.Ct. 234. “A plaintiff in a negligence action who asserts mental or physical injury ... places that mental or physical injury clearly in controversy----” Id. (internal citations omitted).
b. The “Good Cause” Requirement
As delineated above, the Rule requires not only that the court find the mental or physical condition of the plaintiff to be “in controversy,” but also mandates “discriminating application” by the court to ensure “good cause” exists for the requested examinations. Id. at 118, 85 S.Ct. 234. “Good cause” requires a showing that the examination could adduce specific facts relevant to the cause of action and necessary to the defendant’s ease. Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609 (C.D.Cal. 1995). While the probability of obtaining the information through other sources is pertinent to the “good cause” inquiry, Fischer v. Coastal Towing Inc., 168 F.R.D. 199, 200 (E.D.Tex.1996) (citing Schlagenhauf, 379 U.S. at 118, 85 S.Ct. 234); Lahr, 164 F.R.D. at 200, a plaintiff may not avoid a Rule 35
B. Examinations Proposed By Defendant
So long as the “in controversy” and “good cause” requirements are met for each requested exam, Rule 35 does not otherwise limit the number of examinations a party may be required to undergo, nor would such a limitation be judicious. Sadler v. Acker, 263 F.R.D. 333, 336 (M.D.La.2009); Peters v. Nelson, 153 F.R.D. 635, 637 (N.D.Iowa 1994). Each request for an independent examination “must turn on its own facts,” and depends solely on the circumstances underlying the request. Peters, 153 F.R.D. at 637; Moore v. Calavar Corp., 142 F.R.D. 134, 135 (W.D.La.1992). The number of examinations ordered should merely “be held to the minimum necessary considering the party’s right to privacy and the need for the court to have accurate information.” Sadler, 263 F.R.D. at 336 (citations and internal quotation marks omitted). And thus the Court turns to each of the examinations that Defendant has requested Plaintiff to submit to in this matter.
a. Examination by Dr. Gregory Goldsmith, Board Certified Orthopedic Surgeon, and Examination by Mr. William Quintanilla, Vocational Rehabilitation Expert
Two of the examinations sought by Defendant mandate only brief analysis. Plaintiff in this case has asserted a negligence claim against Defendant, arising out of a motor vehicle collision which caused him to suffer “extensive physical and emotional injuries as a result of [the] collision.” (See Dkt. No. 1, Attach. 2, ¶¶ 5.1, 5.6). The impact of the collision allegedly resulted in “cervical and lumbar sprains and multiple disc herniations to [Plaintiffs] neck,” which has since led to sui’gery for Plaintiff, in addition to “extensive physical therapy, daily medication and injections to control the pain caused by the injuries sustained in [the] vehicular collision.” (Id. ¶ 5.6). Plaintiff therefore seeks damages for “Reasonable medical care and
As indicated above, a plaintiff in a negligence action who asserts physical injury squarely places that condition “in controversy”’ and also provides the court “good cause” for ordering an examination to determine the existence and extent of the claimed injury. Schlagenhauf, 379 U.S. at 119, 85 S.Ct. 234. Defendant is therefore entitled to have Dr. Goldsmith examine Plaintiff to determine the extent of his injuries. See Regan v. Trinity Distrib. Servs., Inc., 251 F.R.D. 108, 110 (W.D.N.Y.2008) (finding it “uncontested” that the plaintiff had placed his physical condition in controversy in a negligence action arising from a motor vehicle collision, thereby finding good cause to order a Rule 35 examination). Additionally, Plaintiff seeks damages for loss of earnings, both those lost in the past and those likely incurred in the future. Plaintiff has seemingly thus placed his physical capabilities and state of employability at issue, which will have a direct impact on the issue of damages. See Lee v. Gulf Fleet Marine Corp., 110 F.R.D. 307, 308 (E.D.La. 1986). Although a few rogue courts have ruled otherwise, see, e.g., Storms v. Lowe’s Home Centers, Inc., 211 F.R.D. 296, 297-98 (W.D.Va.2002); In re Falcon Workover Co., Inc., 186 F.R.D. 352, (E.D.La.1999),
b. Examination by Dr. Francisco Perez, Board Certified Neuropsychologist
Whether Plaintiff should be required to submit to an examination with Defendant’s neuropsychologist presents a more complicated question. The determination as to whether a plaintiff has placed his or her mental condition “in controversy” has led to considerable divergence of opinions among federal courts. Bowen, 214 F.R.D. at 193 (citing Ziemann v. Burlington County Bridge Comm’n, 155 F.R.D. 497, 501 (D.N.J.1994) (collecting cases supporting the proposition)). “To put a mental condition in controversy, a plaintiff must assert a claim for mental, [emotional,] or psychiatric injury.” Bradford Felmly v. Hills, 222 F.R.D. 257, 259 (D.Vi. 2004) (quoting Turner v. Imperial Stores, 161 F.R.D. 89, 94 (S.D.Cal.1995)). However, courts generally agree that “for a plaintiffs mental status to be ‘in controversy’ requires more than ‘garden variety” emotional distress” or mental anguish allegations that are merely attendant to the suffering of or recovery from a physical injury. Bowen, 214 F.R.D. at 193 (citing a number of cases); see also Bradford Felmly, 222 F.R.D. at 259 (because “anguish” was the only emotional injury alleged, finding that the “ ‘garden variety” type of claim [was] not sufficient to place [the] plaintiffs mental status in controversy”). Rather, courts have determined that in addition to a generic claim of emotional dis
Here, Plaintiff seeks damages for “[m]ental anguish in the past and in the future.” (Dkt. No. 1, Attach. 2, ¶ 8.1). Although Plaintiff claims that he suffered “extensive physical and emotional injuries as a result of [the] collision,” (id. ¶ 5.6), there are no other indications that Plaintiff is alleging mental injury. He has not asserted a separate tort claim for emotional distress, nor has he alleged a specific mental injury. Defendant has not otherwise brought forth evidence suggesting that Plaintiff will be offering his own expert testimony in support of “mental anguish” damages or suggested to the Court that Plaintiff has conceded his mental condition is in controversy. Moreover, it appears to the Court that Plaintiff relies solely on past mental anguish and emotional injuries, as opposed to ongoing or permanent mental damages. Thus, this is seemingly a “garden variety,” “routine request for damages for mental anguish,” which “does not place a party’s mental condition in controversy.” Pearson v. City of Austin, No. Civ.A. 99-CA-434JN, 2001 WL 681663, at *1 (W.D.Tex. Apr. 4, 2001). “Rule 35 was not intended to authorize sweeping probes into a plaintiffs psychological past simply because the plaintiff has been injured and seeks damages for mental anguish as a result of the injury,” E.E.O.C. v. Old W. Furniture Corp.,
C. Scope and Parameters of Examinations
As indicated beforehand, Plaintiff spends the bulk of his response urging the Court to enforce certain “limitations” and “restrictions” on any ordered medical examination. Specifically, Plaintiff first “asks that his counsel be present at the examinations.” (Dkt. No. 16, at 1-2). Plaintiff next wants an audio or video recording of the examinations to ensure “the integrity of [the] procedures.” (Id. at 1). Noting that Defendant has “failed to specify ... what kind of test or exams will be conducted during said examination^],” Plaintiff also requests “that the Defense list the exams that will be performed by the retained expert[s] and the relevance of each exam,” so that he may be “allowed sufficient time to object to tests that are not within the purview of the retained experts field of expertise or tests that are irrelevant to the case at hand.” (Id.). He lastly seeks to have the medical examinations “be conducted in Laredo, Texas, or ... within a 100 mile radius of Laredo,” and also have the Court impose a three-hour time limitation on the examinations. (Id. at 3).
a. Presence of Plaintiff’s Counsel
Plaintiffs first request is that his counsel is present during the medical examinations ordered. Although Rule 35 is silent on who may attend a physical or mental examination, Tarte v. United States, 249 F.R.D. 856, 858 (S.D.Fla.2008), such examinations, like all other forms of discovery, are subject to the general provisions of Federal Rule of Civil Procedure 26(c). Bethel, 192 F.R.D. at 323 (citing Morton v. Haskell Co., No. 94-976-CIV-J-20, 1995 WL 819182, at *3 (M.D.Fla. Sept. 12, 1995) (“The Court ... has the discretionary authority to impose a variety of conditions which, balancing the factors in each individual case, ensure that the interests of justice are obtained.”). Under that Rule 26(c), a court may issue any order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense____” Fed.R.Civ.P. 26(c)(1). Mental examinations, by their nature, are intrusive and implicate sensitive matters. Jansen v. Packaging Corp. of Am., 158 F.R.D. 409, 410 (N.D.Ill.1994). Nonetheless, the party seeking the presence of a third party at a Rule 35 examination still sustains the burden of convincing the court that good cause exists for a protective order and that such a third-party presence is necessary. Calderon v. Reederei Claus-Peter Offen GmbH & Co., 258 F.R.D. 523, 526 (S.D.Fla.2009). In this context, “broad allegations of harm unsubstantiated by specific examples” does not suffice to meet the Rule 26(e) test. Bridges, 850 F.Supp. at 223. Rather, the inquiry becomes whether “special circumstances are present which call for a protective order tailored to the specific problems presented.” Calderon, 258 F.R.D. at 526.
Although there have been courts which have permitted the presence of a third party at a Rule 35 examination, Abdulwali v. Washington Metro Area Transit Auth., 193 F.R.D. 10, 13 (D.D.C.2000) (listing several examples), the greater weight of federal authority favors the exclusion of the plaintiffs attorney from such an exam absent special cii’cumstanees. Id. (amassing a number of cases excluding counsel); Abdulwali 193
In support of his request to have counsel present, Plaintiff relies on the Fifth Circuit’s holding in Acosta that “[t]he limitations imposed by Rule 35 do not permit a trial court to coerce a party into submitting to an examination by a vocational rehabilitation expert outside the presence of counsel.” 913 F.2d at 210, (Dkt. No. 16, at 2). However, Plaintiffs reliance on Acosta is misplaced, as the abovementioned holding relied on Acosta’s finding that “a vocational rehabilitation expert is not a physician under Rule 35.” 913 F.2d at 209. As previously mentioned in this Order, that holding was subsequently abrogated by the amendment to Rule 35. Nonetheless, Acosta explicitly states that “except for interviews permitted under Rule 35, interviews are allowed only in the presence of counsel,” and clearly the requested examinations in this matter will proceed under Rule 35. Id. at 210; see also Rodriguez v. Pictsweet Co., No. B-07-113, 2008 WL 2019460, at *2 (S.D.Tex. May 9, 2008) (rejecting a similar argument put forth by that plaintiff). Plaintiff does not otherwise put forth any rationale as to why his counsel should be present at the examinations. Bearing in mind the standard just laid out, it appears that Plaintiff has failed altogether to point to “special circumstances” warranting his counsel’s presence. As such, Plaintiffs counsel shall not be permitted to attend either of the examinations here ordei’ed, absent agreement by Defendant and the examining physician.
b. Audio or Video Recording of the Examinations
Plaintiff next asks the Court to mandate either an audio or video recording of his examinations, thereby recognizing “the Plaintiffs right to preserve evidence of the nature of the examination, the accuracy of the examiner’s notes or reeollections[,] and the tones of voice.” (Dkt. No. 16, at 3). Most courts analyze a request for a recording device the same way they evaluate whether to permit the presence of an attor
None of the “special circumstances” that other courts have deemed sufficient for requiring a video or audio recording are seemingly present in this case. See Schaeffer v. Sequoyah Trading & Transp., 273 F.R.D. 662, 664 (D.Kan.2011) (among other reasons, because “plaintiff ha[d] a lengthy history of serious mental issues,” the court had serious doubts “as to whether plaintiff [would] be capable of providing any assistance to his attorney in understanding what took place during the examination.”); Maldonado, 2011 WL 841432, at *3 (relying on the fact that the plaintiff, who “ha[d] a third-grade education and [wa]s a non-English speaker,” suffered from impaired memory and cognitive abilities, “thus impairing his ability to communicate to his counsel what occurred during the examination,” in finding the recording warranted); T.B. ex rel. G.B. v. Chico Unified School Dist., No. CIV S-07-0926-GEB-CMK, 2009 WL 837468, at *2 (allowing the recording upon examining physician’s request because of his representation that “with traumatized children, a child’s facial expressions, body language, movements and behavioral enactments communicate medically significant information which can be captured on videotape”) (internal quotation mai’ks omitted); Greenhorn, 216 F.R.D. at 654 (concluding a recording was necessary because of evidence brought forth by the plaintiff that the examining physician was “abusive and ha[d] a ‘predilection for ignoring court orders imposing conditions upon his examinations’” and had thus been disqualified from several eases previously). In fact, Plaintiff has failed to proffer any “special circumstances” unique to his situation which would justify a court order requiring that the examinations be recorded. Thus, the Court declines to impose such a requirement.
c. Scope of the Examinations
Another issue addressed by Plaintiffs response to Defendant’s motion is that Defendant has offered no evidence to either Plaintiff or the Court regarding “what kind of test or exams will be conducted during said exam-inationfs].” (Dkt. No. 16, at 1). Plaintiff therefore requests that Defendant “list the exams that will be performed by the retained expert and the relevance of each exam,” so that Plaintiff may either “stipulate to [those] tests that are relevant and within the scope of the retained experts!’] field of expertise,” or “object to tests that are not within the purview of the retained experts!’] field of expertise or tests that are irrelevant to the ease at hand.” (Id. at 2).
Federal Rule of Civil Procedure 35 requires that a court order directing that a physical or mental examination occur “specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed. R.Civ.P. 35(a)(2)(B). “Strictly construed, this provision would require the court to specify the listed details in its order granting
Here, although Defendant has adequately apprised the Court of the “person or persons” to perform the examinations,
d. Duration of the Examinations
As indicated by Plaintiff, Defendant’s motion also “fail[s] to specify how long the examination[s] will take,” and thus Plaintiff requests that the examinations “not exceed three hours.”
e. Place of the Examinations
The last issue the Court must address is the place of examination. Plaintiff seeks to have the examinations conducted in Laredo, Texas, or “within a 100 mile radius of Laredo.” (Dkt. No. 16, at 3). The Court first notes that, in its motion, Defendant “propose[d] that Plaintiffs medical examination be held ... [with] Dr. Goldsmith in McAllen, Texas, or at another mutually agreeable time and place,” and that the examination with Mr. Quintanilla “be held ... at a mutually agreeable location in Laredo, Texas, or at another mutually agreeable time and place.”
The general rule is that a plaintiff who brings suit in a particular forum may not avoid appearing for an examination in
Here, while McAllen, Texas is located more than 100 miles from Laredo, it is nonetheless within the Southern District of Texas. Plaintiff has not provided the Court with any rationale as to why travel to such a locale would pose an “undue burden or hardship,” and thus the Court feels it reasonable to require Plaintiff to travel to Dr. Goldsmith in McAllen. The parties are free to agree otherwise, as Defendant has clearly indicated it would consider scheduling such an examination at “another mutually agreeable time and place.” The location proposed by Defendant for the examination with Mr. Quintanilla is Laredo, and thus is a non-issue as it relates to Plaintiffs request.
II. CONCLUSION
In summation, “Defendant’s Motion to Examine Plaintiff’ is GRANTED IN PART and DENIED IN PART. Plaintiff is ORDERED to submit to examinations with Dr. Goldsmith and Mr. Quintanilla. Defendant’s motion regarding the request for Plaintiff to undergo a neuropsychological examination with Dr. Perez is DENIED; Defendant may renew its motion regarding an examination with Dr. Perez, but must set forth the requisite showing. Further, because the Court notes that the proposed examination date with Mr. Goldsmith has passed, the parties are to confer amongst themselves and decide on “a mutually agreeable” date and time for that examination. Defendant is ORDERED to provide the required information regarding the scope and duration of each of the ordered examinations at least one week prior to the scheduled examination. This will ensure that Plaintiff has a proper opportunity to object to any potential harmful or extraneous testing. The Court will rule on any potential motions brought by Plaintiff within that week, so as to ensure the examinations proceed on schedule.
Further, Defendant has also filed an interrelated “Motion to Extend Time to Designate Expert Witnesses and Produce Expert Reports,” (Dkt. No. 12), filed February 20, 2013. The current deadline for Defendant to designate expert witnesses and reports is February 22, 2013, and the discovery deadline is set at April 8, 2013. In its motion, Defendant requested a deadline of March 8, 2013 “to designate its expert witnesses and serve its expert reports.” (Id. ¶ 5). During a scheduled status conference, held February 21, 2013, Defendant informed the Court that his reason for requesting an extension of time was that Plaintiff was not making himself “available for personal examination and evaluation by Defendant’s experts.” (Id. ¶ 4). Plaintiff indicated during the status conference that he “adamantly oppose[s] an independent medical examination.” (Feb. 21st Status Conf. at 11:38 a.m.). Defendant therefore filed the instant “Motion to Examine Plaintiff.”
Because the Court has granted in part Defendant’s motion, the Court must issue new deadlines to accommodate such a ruling. “Defendant’s Motion to Extend Time to Designate Expert Witnesses and Produce Expert Reports” is therefore GRANTED. The new deadline for Defendant to designate its experts and issue those reports is April 30, 2013. Although neither party has requested it as of yet, it seems sensible for the Court to extend the discovery deadline to May 30,
IT IS SO ORDERED.
. A number of these rulings arose out of a prior version of Federal Rule of Civil Procedure 35, which authorized the court to “order [a] party to submit to a physical examination by a physician, or mental examination by a physician or psychologist____” Fed.R.Civ.P. 35(a). Courts thus found that "a vocational rehabilitation expert is not a physician under Rule 35.” Acosta v. Tenneco Oil Co., 913 F.2d 205, 209 (5th Cir. 1990). The present version of Rule 35 emerged ■ after a 1991 amendment to the Rule, which was subsequent to Acosta, and extended the Rule to include examinations by “other certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute.” Fed.R.Civ.P. 35(a), advisory committee notes, 1991 amendment.
. The Court includes this provision merely because Defendant did not file a reply addressing any of the proposed parameters put forth by Plaintiff. Although certain parameters may not be ordered by the Court, this does not preclude all parties involved from agreeing to such parameters.
. Defendant has submitted the proposed physicians’ extensive curriculum vitae. (See Dkt. No. 15, Attach. 1, at 5-40). There seems to be no issue that the proposed examiners are "suitably licensed or certified.” Fed.R.Civ.P. 35(a)(1); see also Newman, 272 F.R.D. at 511.
. The Court realizes that "[a]Il of the questions that a medical doctor needs to ask, in particular the follow-up questions, cannot be determined in advance of the medical examination,” and thus Defendant need only furnish to Plaintiff the general scope of such questioning. Calderon, 258 F.R.D. at 528; Hertenstein, 189 F.R.D. at 626 (“Prior disclosure of questions to be asked is unworkable.”) (internal quotation marks omitted) (citing Tomlin, 150 F.R.D. at 631 n. 1).
. Although unclear from Plaintiff's language, the Court presumes that Plaintiff intends that each proposed examination be limited to three hours.
. The proposed examination with Dr. Perez was also to take place in Laredo, Texas; however, as indicated above. Defendant has not shown that Plaintiff's mental condition is "in controversy,” and thus the Court does not address that examination in this section.
. The rule is not changed by the fact that a plaintiff may have selected the forum by necessity. McDonald, 2008 WL 2705557, at *6.