Barry v. Shell Oil Company et al, No. 2:2015cv00004 - Document 112 (D. Alaska 2017)

Court Description: ORDER granting 103 Motion to Compel. While Arctia has provided notice as to the person who will be performing the IME, it has not provided the other information required under Rule 35(a)(2)(B). Arctia is directed to file a notice within fourteen days of this order as to the time, place, manner, conditions, and scope of the examination. Signed by Judge John W. Sedwick on 4/3/17. (GMM, CHAMBERS STAFF)
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Barry v. Shell Oil Company et al Doc. 112 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ALASKA 9 10 BLANE BARRY, 11 12 Plaintiff, vs. 13 14 15 SHELL OIL COMPANY, ARCTIA OFFSHORE, LTD., SHELL OFFSHORE, INC.; and SAFETY MANAGEMENT SYSTEMS, LLC, 16 17 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) 2:15-CV-00004 JWS ORDER AND OPINION [Re: Motion at docket 103] 18 19 20 I. MOTION PRESENTED At docket 103, pursuant to Rule 35 of the Federal Rules of Civil Procedure, 21 22 Defendant Arctia (“Arctia”) moves the court to compel Plaintiff Blane Barry (“Plaintiff”) to 23 submit for an independent medical examination (“IME”) with psychiatrist Dr. Richard 24 Roniger. Plaintiff responds at docket 106, and Arctia replies at docket 108. Oral 25 argument was not requested and would not assist the court. 26 27 28 II. BACKGROUND This matter arises out of a claim for personal injuries sustained by Plaintiff in August of 2012 while he was working aboard the M/V NORDICA, a vessel owned by Dockets.Justia.com 1 2 Arctia. Plaintiff alleges in his complaint that he seriously injured his back and neck while lifting a heavy cable. He seeks damages for lost earnings, lost earning capacity, 3 4 past and future medical expenses, and “physical and emotional pain and suffering and 5 loss of enjoyment of life.”1 Arctia sought to schedule Plaintiff for a psychiatric 6 evaluation given his claims of emotional distress and evidence of Plaintiff’s post- 7 accident psychological and psychiatric treatment. Plaintiff objected to the evaluation. 8 He does not agree that an IME is warranted because he argues that he is only claiming 9 10 “garden variety” emotional distress damages. III. STANDARD OF REVIEW 11 12 13 Rule 35 governs the court’s determination of a motion for an IME. That rules states as follows: 14 15 16 The court where the action is pending may 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. . . . The order . . . may be made only on motion for good cause . . . . 2 17 18 Under the rule then, Plaintiff’s mental health examination is only warranted here if his 19 mental condition is “in controversy” and if Arctia has shown “good cause” for requesting 20 the examination.3 These requirements “are not met by mere conclusory allegations of 21 the pleadings—nor by mere relevance to the case—but require an affirmative showing 22 23 by the movant that each condition as to which the examination is sought is really and 24 25 26 1 27 2 28 3 Doc. 4 at ¶¶ 23, 24, 25. Fed. R. Civ. P. 35. Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964). -2- 1 2 genuinely in controversy and that good cause exists for ordering each particular examination.”4 3 4 When determining whether a plaintiff’s mental health is “in controversy,” district 5 courts in this circuit apply the multi-factor test set forth in Turner v. Imperial Stores.5 6 Under the Turner test, the mental examination of a plaintiff is proper where that plaintiff 7 alleges emotional distress and the case involves one or more of the following factors: 8 1) a cause of action for intentional or negligent infliction of emotional 9 distress; 10 11 2) an allegation of a specific mental or psychiatric injury or disorder; 12 3) a claim of unusually severe emotional distress; 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; 13 14 and/or 15 16 5) plaintiff’s concession that his or her mental condition is “in controversy” within the meaning of Rule 35.6 17 18 19 A claim of emotional distress, without the presence of one or more of these additional 20 factors, is insufficient to put a plaintiff’s mental health in controversy.7 21 22 23 4 24 5 25 26 Id. at 118. 291 F.R.D. 90 (S.D. Cal. 1995); see also Hernandez v. Simpson, No. ED-CV-13-2296, 2014 WL 4090513, at *2 (C.D. Cal. Aug. 18, 2104) (listing a few district courts that have applied the test); Ruvane v. Elizabeth F, Inc., No. 3:15-cv-00079, 2016 WL 6514181, at *4 (D. Alaska Aug. 25, 2016) (applying the Turner factors). 27 6 28 7 Turner, 161 F.R.D. 89, 98 (S.D. Cal. 1995). Id. at 97. -3- 1 2 When determining whether good cause exists, courts look at a variety of factors, including but not limited to 1) whether the information can be obtained through other 3 4 means; 2) whether the plaintiff plans to prove emotional distress through an expert 5 witness; 3) whether the desired information from the examination is relevant; and 6 4) whether the plaintiff is claiming ongoing emotional distress.8 7 8 IV. DISCUSSION Applying the Turner factors to the situation presented here demonstrates that 9 10 Plaintiff has placed his mental condition in controversy. While the first and fifth Turner 11 factors do not support an IME—Plaintiff does not include an independent claim for 12 intentional or negligent infliction of emotional distress, and he does not concede that his 13 mental health is at issue—the other three factors support Arctia’s position that Plaintiff’s 14 15 mental condition has been placed in controversy. Plaintiff’s post-accident mental health 16 records, his expert’s report, and his own deposition make clear that he is alleging the 17 2012 work injury led to a specific mental injury or disorder. One of his experts, 18 19 20 Dr. Angel Roman, claims that since the accident Plaintiff has suffered from “Major Depressive Disorder”9 and Plaintiff’s records indicate that he has been hospitalized 21 based on that disorder numerous times since the accident. 10 Plaintiff attempted to 22 commit suicide on one occasion after “hallucinations, delusions, agitation, anxiety, 23 depression, and other factors resulting in the loss of functioning,” and Plaintiff reported 24 25 26 8 Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161, 165 (N.D. Cal. 2013); Ruvane, 2016 WL 6514181, at * 4. 27 9 28 10 Doc. 106-2 at p. 31 (Ex. B at p. 30). Doc. 106-3 (Ex. C); doc. 106-4 (Ex. D). -4- 1 2 that these thoughts of “wanting to die . . . are brought on by his hopeless feelings related to dealing with chronic pain.”11 He obtained a psychiatric diagnosis “indicated by 3 4 a DSM IV diagnosis on Axis 1.”12 Dr. Roman concludes that Plaintiff’s major depression 5 “is a factor of his work injury not diagnosed prior to the lifting injury in any preaccident 6 records.”13 Plaintiff testified that the accident and losing his job affected him to the point 7 of hospitalization for his behavior.14 8 The same evidence discussed in the preceding paragraph also demonstrates 9 10 satisfaction of the third factor of the Turner test: a claim of unusually severe emotional 11 distress. Plaintiff argues that his claim for emotional distress damage is like any other 12 case where the plaintiff has distress normally associated with or a result of recovery 13 from a physical injury. While mental anguish, fear, anxiety, anger, and depression as a 14 15 result of suffering and recovering from a physical injury are not considered unusually 16 severe, Plaintiff’s situation involves something more than “garden-variety” emotional 17 distress. He is claiming an actual depressive condition, Major Depressive Disorder, 18 which resulted in numerous hospitalizations and attempted suicide and which is an 19 ongoing issue based on this request for future mental health treatment. The situation 20 21 22 here is similar to that in Gurshin v. Bank of America, National Assoc.,15 where the district court granted the defendant’s request for an IME where the plaintiff had been 23 11 24 25 Doc. 106-4 at p. 1 (Ex. D. at p. 1). 12 Id. 26 13 27 14 28 15 Doc. 106-2 at p. 31 (Ex. B at p. 30). Doc. 103-2 at p. 3 (Ex. B. at p. 2). No. 2:15-cv-323, 2016 WL 384929 (D. Nevada Jan. 27, 2016). -5- 1 2 seeking mental health treatment and had attempted suicide, all of which she alleged related to her claims against defendant. The court deemed such distress sufficiently 3 4 5 6 7 8 severe: “Hospitalization and attempted suicide are manifestations of unusually severe emotional distress.”16 Finally, the record shows that Plaintiff does in fact plan to offer expert testimony about his mental health condition. Dr. Roman’s report concludes that, as a result of his injuries, Plaintiff suffers from Major Depressive Disorder and concludes that Plaintiff’s 9 10 lifetime costs for psychological and psychiatric care will total over $161,260.50. 17 11 Plaintiff asserts that Dr. Roman is only his “future-medical-care expert” and will only 12 testify about Plaintiff’s need for some psychological and psychiatric treatment as part of 13 his overall care for the physical injuries caused by Arctia’s negligence.18 In other words, 14 15 Plaintiff asserts that his claim for damages stems only from his physical injuries. 16 However, claiming he needs lifetime mental health treatment to cope with the injuries 17 suffered from the accident is the equivalent of claiming the accident caused mental 18 health problems that should be accounted for if and when any damages are awarded. 19 He has an expert slated to testify about what his lifetime psychological and psychiatric 20 21 22 treatment will cost, which certainly puts Plaintiff’s mental health condition and questions about the extent and severity of his mental health condition at issue here. 23 24 25 26 16 27 17 28 18 Id. at *2. Doc. 106-2 (Ex. B.). Doc. 106 at p. 6. -6- 1 2 Plaintiff cites to a case in this district, Ruvane v. Elizabeth F, Inc.,19 in favor of his position that a psychological IME is not warranted. Ruvane is distinguishable. In that 3 4 case the IME request was denied in part because Plaintiff had made it clear he was not 5 claiming anything more than just typical emotional distress and was not seeking specific 6 psychological damages.20 Here, Plaintiff is asking for damages related to Major 7 Depressive Disorder and the future treatment thereof. In Ruvane, the plaintiff did not 8 have any witness designated to give testimony regarding emotional damages beyond 9 10 “ordinary grief , anxiety, anger, and frustration any person feels when something bad 11 happens.”21 Again, Dr. Ramos is going to give testimony regarding the need for future 12 psychological and psychiatric treatment. Also, the court in Ruvane noted that an IME is 13 not warranted just because a defendant suggests there is a possible mental health 14 15 explanation for a plaintiff’s complaint. Here, Arctia is not making such a claim. Rather, 16 it wants to be able to provide evidence to respond to Plaintiff’s claim that he will need 17 long-term mental health treatment as a result of the 2012 accident. 18 The court also concludes that Arctia has shown sufficient good cause for an IME 19 20 here. First, evidence regarding the extent of Plaintiff’s mental health condition is clearly 21 relevant given the discussion above. Second, Plaintiff is claiming ongoing emotional 22 distress, as evidenced by the request for future damages for psychological and 23 psychiatric care. Finally, he has an expert designated to discuss the need for and cost 24 25 26 19 27 20 28 21 No. 3:15-cv-00079, 2016 WL 6514181 (D. Alaska Aug. 25, 2016). Id. at *5. Id. -7- 1 2 of such ongoing care. Arctia should have the opportunity to provide rebuttal evidence about the need for and cost of future treatment. 3 V. CONCLUSION 4 5 6 7 8 Based on the preceding discussion, Arctia’s motion to compel Plaintiff to submit for an IME with psychiatrist Dr. Richard Roniger is GRANTED. While Arctia has provided notice as to the person who will be performing the IME, it has not provided the other information required under Rule 35(a)(2)(B). Arctia is directed to file a notice 9 10 11 12 within fourteen days of this order as to the time, place, manner, conditions, and scope of the examination. DATED this 3rd day of April 2017. 13 14 15 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-