Curtis v. Express, Inc.
| Decision Date | 17 October 1994 |
| Docket Number | No. 93-CV-514.,93-CV-514. |
| Citation | 868 F. Supp. 467 |
| Parties | Naima E. CURTIS, Plaintiff, v. EXPRESS, INC., sued as Limited Express, Inc., Defendant. |
| Court | U.S. District Court — Northern District of New York |
Kohn, Bookstein & Karp, P.C., Richard A. Kohn, Albany, NY, for plaintiff.
Whiteman, Osterman & Hanna, Boty McDonald, Albany, NY, for defendant.
On April 3, 1993, plaintiff filed this action against her former employer, Limited Express, Inc., alleging racial discrimination. Plaintiff's remaining claims are brought under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law alleging racial harassment, retaliatory discharge, and hostile work environment. Plaintiff seeks compensatory damages under the New York Human Rights Law for emotional distress.
On June 16, 1994, Magistrate Judge Hurd signed an order which, inter alia, denied defendant's request for a mental examination of plaintiff in regard to her claim for compensatory damages for emotional distress. The Magistrate's order does not indicate the basis on which he denied the motion. On June 27, 1994, defendant filed a motion for reconsideration of that portion of Magistrate Hurd's June 16, 1994 order which denied its request to conduct a mental examination of the plaintiff.
Defendant claims that plaintiff has placed her mental condition at issue by seeking compensatory damages for emotional distress and has asserted the continuing nature of her emotional distress in her complaint and answers to interrogatories, including answers given after a deposition in which plaintiff stated that she only suffered past emotional distress. Thus, defendant believes that it should be entitled to a mental examination of the plaintiff. Defendant acknowledges, however, the fact that plaintiff does not make a separate claim for emotional distress, but rather seeks damages for emotional distress under New York Human Rights Law.
Plaintiff counters this argument by asserting that in deposition testimony, she stated that she is not alleging any ongoing psychological injury or disorder and that her claim under New York Human Rights Law was only for the past emotional distress caused by the allegedly offensive conduct of defendant's employee. Plaintiff states that her emotional distress resulting from alleged racial harassment consisted of difficulty in sleeping, loss of appetite and difficulty concentrating and that these symptoms ended by December 1990. Plaintiff notes that she visited a counsellor regarding these problems once on August 29, 1990, no treatment or follow up was ordered, no specific diagnosis of mental or psychiatric injury was made, and plaintiff did not feel it necessary to return for further counselling. Plaintiff notes that the defendant is already in receipt of the medical records from that visit, and examination of her current mental state would not be probative to the claim. She asserts that she does not allege any psychological disorder and will not offer expert testimony regarding her mental health at trial.
In order to obtain the court's permission to conduct a mental or physical examination of plaintiff, Fed.R.Civ.P. 35(a) requires that plaintiff's mental condition be in controversy and that good cause be shown as to the necessity of such an examination. Fed.R.Civ.P. 35(a). The plaintiff's right to avoid the invasion of a mental examination must be balanced against defendant's right to a fair trial. Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298 (E.D.Pa.1983). However, the "in controversy" and "good cause" requirements are not simple formalities and are met neither by the "mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 243, 13 L.Ed.2d 152 (1964). There are scenarios in which the pleadings themselves form a sufficient basis to meet the requirements of Rule 35, such as in negligence actions where plaintiffs allege mental or physical injuries. Id. However, other courts have rejected this rationale in employment discrimination cases. See Cody v. Marriott Corp., 103 F.R.D. 421, 422-23 (D.Mass.1984). Even if good cause is shown, it is still within the court's discretion to determine whether to order an examination. Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D.Pa.1990).
As defendant asserts, a plaintiffs mental condition may be relevant in suits involving claims under the New York Human Rights Law. Bridges v. Eastman Kodak Co., 850 F.Supp. 216, 221 (S.D.N.Y.1994). Mental distress may be relevant to the Human Rights Law claim when plaintiff seeks compensatory damages for emotional distress under the statute. Id. Nonetheless, the courts have reached conflicting conclusions as to whether a plaintiff has put her mental condition in controversy when making a claim of employment discrimination by alleging psychological injury. See Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 531 (M.D.Fla.1988) (); Cody, 103 F.R.D. at 422 (); but see Zabkowicz v. West Bend Co., 585 F.Supp. 635, 636 (E.D.Wis.1984) ().
Mental examinations have been ordered in other cases of alleged racial discrimination under Title VII where plaintiff sought compensatory and...
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...in which the examination is conducted.” 19 Even if good cause is shown, the court still has the final say. Curtis v. Express, Inc., 868 F.Supp. 467 (N.D.N.Y. 1994); Great West Life Assurance Company v. Levithan, 153 F.R.D. 74 (E.D.Pa. 1994). 20 See supra, §9.21. 9-561 physical and mental ex......