United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion to Compel Rule 35
Examination of Plaintiff. (R. Doc. 24). The motion is
opposed. (R. Doc. 28). Defendant filed a reply. (R. Doc. 35).
an employment discrimination action in which Aimee Holdridge
(“Plaintiff”) alleges that she suffers
“from severe acute stress disorder, anxiety, and
depression” as a result of an assault and battery by
her former boyfriend, and was denied reasonable
accommodations with respect to her alleged disability from
her former employer Estee Lauder Companies, Inc.
(“Defendant”). (R. Doc. 1-1 at 4). Plaintiff also
alleges that she was subject to sexual discrimination and
harassment while employed with Defendant. (R. Doc 1-1 at 4).
Plaintiff alleges that she has suffered, among other things,
“mental anguish, psychological damages, humiliation and
embarrassment, [and] severe and extreme emotional
distress.” (R. Doc. 1-1 at 6-7). Defendant removed the
action on January 18, 2019. (R. Doc. 1).
now seeks an order pursuant to Rule 37(a)(3)(C) of the
Federal Rules of Civil Procedure compelling Plaintiff to
submit to a Rule 35 psychological examination by Dr. Gina
Manguno-Mire. Defendant also seeks recovery of reasonable
expenses, including attorney's fees, incurred in making
the instant motion pursuant to Rule 37(a)(5)(A).
there is currently no Rule 35 order in this action, there is
no basis under Rule 37 for compelling compliance with a Rule
35 order or awarding expenses. See Bruce v. Baywater
Drilling, L.L.C., No. 16-168-JWD-RLB, 2016 WL
3149719, at *2 (M.D. La. June 3, 2016). Accordingly, the
motion is denied to the extent it seeks any relief under Rule
37, including an award of expenses. The Court will consider
the motion, however, for the purposes of determining whether
Defendant has established good cause for the issuance of a
Rule 35 order. See id. at *3-4.
the parties' briefing discusses their correspondence and
agreements leading up to an independent medical examination
(“IME”) by Dr. John Thompson and whether and to
what extent Defendant properly identified Dr. Manguno-Mire as
a psychologist who would perform certain testing during the
IME. On October 2, 2019, Defendant sent a letter requesting
the IME by Dr. Thompson and providing that the examination
“shall involve only oral questioning by Dr. Thompson
and, at Dr. Thompson's option, the administration of the
psychometric test known as the Minnesota Multiphasic
Personality Inventory-2 (MMPI-2). (R. Doc. 28-3). The letter
did not identify a second examiner. On October 11, 2019,
defense counsel informed Plaintiff's counsel that the
“psychological testing portion” of the IME would
be done by a different doctor identified as Dr. Ramussen. (R.
Doc. 24-9 at 3-4). Plaintiff's counsel immediately
questioned the reasonableness of two separate IMEs on two
separate days. (R. Doc. 24-9 at 3). On October 16, 2019,
defense counsel informed Plaintiff's counsel that
“Dr. Thompson is requiring another doctor [to] conduct
a test for PTSD” and states, with no explanation, that
this procedure is “not overreaching.” (R. Doc.
24-9 at 3). On October 18, 2019, defense counsel provided a
copy of Dr. Manguno-Mire's CV. (R. Doc. 28-7 at 2;
see R. Doc. 24-8).
counsel appropriately notes that by this time, defendant has
requested an IME by three different providers. (R. Doc. 28 at
4). On October 22, 2018, Plaintiff's counsel only agreed
to proceed with an IME by Dr. Thompson. (R. Doc. 28-7 at 1).
represents that on October 23, 2019, she traveled from
Lafayette, Louisiana to New Orleans, Louisiana to participate
in an examination by Dr. Thompson. (R. Doc. 28-8). Plaintiff
represents that the examination lasted almost five hours;
that Dr. Thompson questioned Plaintiff about her personal and
social history, educational and work history, and medical
history; that Plaintiff took a Minnesota Multiphasic
Personality Inventiory-2 test, which consisted of
approximately six hundred (600) questions; and that Plaintiff
declined to undergo further examination by another
psychologist. (R. Doc. 28-8).
support of the instant motion, Defendant asserts that while
Plaintiff “submitted to psychological testing”
she “refused to allow anyone to take her medical
history as part of the testing contending that her counsel
instructed [her] not to speak to anyone other than Dr.
Thompson at the IME.” (R. Doc. 24-1 at 2). Defendant
now seeks to have Plaintiff submit to an approximately 30
minute “clinical psychological interview including a
personal and social history, educational and work history,
medical history (including psychiatric history)” by Dr.
Manguno-Mire at Tulane University, New Orleans, Louisiana.
(R. Doc. 24-1 at 6). In opposition, Plaintiff asserts that
she already has been subjected to an examination on the
foregoing topics and that she has provided her “medical
history” to Defendants in the form of medical records.
(R. Doc. 28 at 6). In reply, Defendant asserts that
“Dr. Thompson has indicated that, for Dr. Manguno-Mire
to interpret the results of the MMPI-2, she needed to take a
history as well.” (R. Doc. 35 at 2).
Rule of Civil Procedure 35 provides that the “court
where the action is pending may order a party whose mental or
physical condition-including blood group-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).
Such an order may be issued “only on motion for good
cause and on notice to all parties and the person to be
examined” and “must 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). A plaintiff places his or her physical
or mental condition “in controversy” by pleading
he or she has sustained a physical injury through the
negligence of the defendant. See Schlagenhauf v.
Holder, 379 U.S. 104, 119 (1964). “The decision as
to whether or not to order an independent medical examination
under Rule 35(a) rests in the court's sound
discretion.” Glaze v Bud's Boat Rental,
Inc., No. 93-1334, 1993 WL 441890, *1 (E.D. La. Oct. 21,
1993). Furthermore, “[a]lthough Rule 35 examinations
may be ordered ‘only on motion for good cause
shown,' and use of the rule to compel such examinations
is not unfettered, Rule 35(a) generally has been construed
liberally in favor of granting discovery.” Grossie
v. Fla. Marine Transporters, Inc., No. 04-0699, 2006 WL
2547047, at *2 (W.D. La. Aug. 31, 2006).
does not explain why the interpretation of the MMPI-2
requires a “history” to be conducted by a
separate psychologist. Dr. Manguno-Mire explains in a
declaration, however, that the “MMPI-2 is a clinical
assessment tool used by mental health professionals to assist
in interpreting symptoms, response style, and as an aid in
the diagnosis of mental health disorders” and that she
completes “a developmental history/interview with
evaluees/responses” for the purposes of reliability and
validly interpreting the MMPI-2. (R. Doc. 24-10). While it
remains unclear why Dr. Thompson is unqualified to conduct
“a developmental history/interview” for the
purpose of interpreting the MMPI-2, which he apparently
administered to Plaintiff, there appears to be no dispute
that Dr. Manguno-Mire is qualified for these purposes.
considered the record and arguments of the parties, the Court
finds good cause under Rule 35 to require this limited mental
examination to proceed. The mental examination sought by
Defendants to be conducted by Dr. Manguno-Mire does not
appear to be duplicative or cumulative of the examination
conducted by Dr. Thompson. Furthermore, Plaintiff does not
challenge that Dr. Manguno-Mire is a “suitably licensed
or certified examiner” as contemplated by Rule 35.
record indicates, however, that defense counsel was less than
clear in explaining to Plaintiff's counsel that Dr.
Manguno-Mire would only conduct a separate
“developmental history/interview” of Plaintiff
should Dr. Thompson choose to administer the MMPI-2 during
his examination. Defendant did not obtain a Rule 35 order
with respect to the IME, and the Court finds no basis to
subject Plaintiff to sanctions for not agreeing to submit to
an examination by Dr. Manguno-Mire in the absence of a court
order. Furthermore, Plaintiff has already incurred the
expense of traveling to New Orleans for a mental evaluation
with Dr. Thompson. Accordingly, the Court will require
Defendant to reimburse Plaintiff all reasonable travel
expenses incurred with respect to any additional mental
examination by Dr. Manguno-Mire in accordance with this
Order. See Booth v. Mohave Transp. Ins. Co., No.
13-6746, 2014 WL 3881203, at *5 (E.D. La. Aug. 6, 2014)
(“Rule 35(a) examinations, like all other forms of
discovery, are subject to the general provision of Rule 26(c)
that the court may make any order which justice requires to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”).
on the foregoing, IT IS ORDERED that
Defendant's Motion to Compel Rule 35 Examination of
Plaintiff. (R. Doc. 24) is GRANTED IN PART and DENIED
IN PART. Plaintiff shall submit to a developmental
history/interview with Dr. Gina Manguno-Mire for the purpose
of interpreting the MMPI-2 already administered by Dr. John
Thompson. This mental examination shall be limited to a
clinical psychological interview including a personal and
social history, educational and work history, medical history
(including psychiatric history) and shall not exceed 1 hour.
The examination shall take place at Tulane University, School
of Medicine, Department of Psychiatry & Behavioral
Sciences, 1440 Canal Street, Suite 100, New Orleans,
Louisiana, 70112-2715, or as otherwise agreed upon by the
parties. The examination ...