Mental examinations in federal employment litigation.

Extract

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Mental examinations in federal employment litigation.

Complete emotional tranquility is seldom attainable in the world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it. (1)

Whether this principle from the Restatement of Torts discussion of the law of intentional infliction of emotional distress applies in employment claims can be debated. Yet what is clear is that virtually every employment lawsuit (where the underlying statute permits) asserts a claim for compensatory damages--damages for emotional distress, humiliation, embarrassment, and the otherwise intangible pain and suffering caused by the challenged employment action.

Not surprisingly, many defense attorneys assume that a plaintiff claiming "emotional distress" has placed his or her mental health at issue, thereby providing the defendant with a right of access to the plaintiff's medical records. Typically, this may include subpoenas to health care providers as well as mental health professionals. The question then arises, when, or if, a Rule 35 (2) mental examination can be a useful tool in assessing any claim for emotional distress.

To be sure, a mental examination will provide insight into the plaintiff's mental condition, such as whether the individual suffers from a personality or mood disorder which might otherwise affect that person's perception of events. It will as...

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