Mental examinations in federal employment litigation.

• Author: del Russo, Alexander D.

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 assist in assessing the nature and extent of the alleged emotional distress, and it can help ferret out malingerers. As defense counsel, however, what are your considerations in requesting a psychiatric examination? After all, plaintiff's counsel is entitled to a copy of any reports or evaluations prepared by the examiner setting out the examiner's findings. As plaintiff's counsel, can you reduce the likelihood of having your client subjected to a mental examination by an expert of the defendant's choosing? How, if at all, is this affected by the claims raised or the damages pled within your complaint?

This article addresses some of these issues concerning mental examinations in the context of federal employment litigation.

Authority for Mental Examinations

Contrary to popular belief, a plaintiff who seeks compensatory damages, i.e., damages for humiliation, emotional distress, or embarrassment, has not automatically placed his or her mental health sufficiently at issue to justify a mental examination. Our analysis begins with Rule 35(a), which provides in pertinent part:

When the mental ... condition ... of a party ... is in controversy, the court ... may order the party to submit to a ... mental examination by a duly licensed or certified examiner.... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, manner, place, conditions, and scope of the examination....

As the text of Rule 35 indicates, there are two prerequisites before a mental examination may be ordered: 1) the mental health of the party must be in controversy, and 2) a request for the examination must be based on good cause shown. Unlike other discovery rules, which are afforded a liberal treatment and which identify the scope of discovery as that which is relevant and not privileged, Rule 35 includes additional requirements that the matter be in controversy and that the movant affirmatively demonstrate good cause. In Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Supreme Court squarely addressed construction of this language and established guidelines for lower courts to follow. The Court began by clarifying that the two prerequisites of Rule 35 are not a "mere formality."

They are not met by mere conclusory allegations of the pleadings--nor by mere relevance to the case--but require an affirmative showing by the movant that each condition ... is really and genuinely in controversy and that good cause exists for ordering each particular examination.... Rule 35, therefore, requires discriminating application by the trial judge....

Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff ... 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. (3)

Since Schlagenhauf, courts have struggled to define precisely when a plaintiff puts his or her mental condition in controversy by claiming damages for emotional distress.

A handful of courts have held that a claim for emotional distress, by itself, is sufficient to place a plaintiff's mental health in controversy. (4) Nevertheless, the prevailing view is that a plaintiff's mental health is not necessarily in controversy simply because that plaintiff seeks damages for emotional distress. This is because courts do not view emotional distress as synonymous with the mental condition requirement of Rule 35. "A person with no 'mental condition' may still suffer emotional distress which is compensable." (5) Although the 11th Circuit has not specifically addressed this issue, some courts within this circuit have accepted the prevailing-view that Rule 35 mental examinations require something more than a claim for emotional distress. (6) Thus, allegations of "humiliation," "mental anguish," or "emotional distress," without more, have typically been viewed as insufficient to warrant a Rule 35 mental examination.

The same courts that hold to this prevailing view recognize that a mental examination is appropriate if any of the following factors are present:

1) The plaintiff asserts a claim for intentional infliction of emotional distress;

2) The plaintiff alleges a particular mental or psychiatric injury;

3) The plaintiff claims unusually severe emotional distress;

4) The plaintiff intends to offer expert testimony in order to support his or her emotional distress claim; or

5) The plaintiff concedes that his or her mental condition is in controversy. (7)

A quick glance at these factors reveals the obvious. For instance, if a plaintiff intends to offer an expert witness to support a claim for emotional distress, or if the plaintiff simply concedes that his or her mental condition is in controversy, then courts will generally permit a Rule 35 mental examination as a matter of course. What may not be as obvious, however, is that asserting a...