Mullins v. Horizon Pharma USA, Inc. et al, No. 3:2018cv00399 - Document 25 (S.D. Cal. 2019)
Court Description: ORDER granting 23 Joint Motion to Extend Expert Disclosure Deadline; granting 24 Joint Motion for Independent Medical Examinations of Plaintiff. Plaintiff is ordered to undergo an Independent Medical Examination (IME) with Dr. Ben Frishberg and D r. Mark Kalish, to be conducted on 4/16/2019 8:30 AM in Carlsbad, CA. Court will extend the expert disclosure deadline for Dr. Frishberg and Dr. Kalish to 4/30/2019. All other dates remain as previously set. Signed by Magistrate Judge Nita L. Stormes on 3/18/2019. (jah)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRICIA MULLINS, Case No.: 18cv399-BAS (NLS) Plaintiff, 12 13 v. 14 HORIZON PHARMA USA, INC., and DOES 1-10, inclusive,, 15 ORDER: (1) GRANTING JOINT MOTION FOR INDEPENDENT MEDICAL EXAMINATIONS OF PLAINTIFF; and Defendants. 16 17 (2) GRANTING JOINT MOTION TO EXTEND EXPERT DISCLOSURE DEADLINE 18 19 [ECF Nos. 23, 24] 20 21 22 23 24 25 26 27 Before the Court is the parties’ joint motion for an Independent Medical Examination (“IME”) of Plaintiff Tricia Mullins (“Plaintiff”). ECF No. 24. Additionally, the parties also request that the Court extend certain expert disclosure deadlines. ECF No. 23. For the reasons set forth below, the Court (1) GRANTS the motion for Plaintiff to sit for an IME; and (2) GRANTS the motion to extend the expert disclosure deadline. // 28 1 18cv399-BAS (NLS) 1 1. MOTION FOR INDEPENDENT MEDICAL EXAMINATION 2 Since the reason parties assert for requesting the extension of expert disclosure 3 deadlines is the need for an IME, the Court will first address whether an IME will be 4 granted. 5 6 a. Background In her complaint, Plaintiff alleges that she was wrongfully terminated by 7 Defendant Horizon Pharma USA, Inc. (“Defendant”). ECF No. 1 at ¶ 1. Prior to 8 working for Defendant, in 2013 Plaintiff alleges that she filed a whistleblower action 9 against her then employer, Aegerion Pharmaceuticals, Inc. (“Aegerion”), pursuant to the 10 False Claims Act. Id. at ¶ 12. In September 2017, Aegerion plead guilty to criminal 11 charges and agreed to pay a $28.8 million settlement, which resolved Plaintiff’s 12 whistleblower action. Id. at ¶ 14. Plaintiff alleges that three months after Defendant was 13 notified that she had been a whistleblower in the Aegerion case, she was terminated. Id. 14 at ¶ 19. Plaintiff alleges that she had received positive feedback from her supervisors 15 regarding her job performance, yet was terminated due to misconduct, which she denies 16 and categorizes as pretext. Id. at ¶¶ 20, 22. As a result of her termination, Plaintiff 17 alleges that she has “suffered damages in the form of severe emotional distress, . . . 18 mental anguish, and trauma[.]” Id. at ¶ 40. Among other relief, Plaintiff seeks emotional 19 distress damages from her retaliation and wrongful termination claims. Id. at ¶¶ 29, 32, 20 36. In addition, she alleges a cause of action for intentional infliction of emotional 21 distress, and seeks damages pertaining to this claim as well. Id. at ¶¶ 40-41. 22 23 b. Legal Standard Federal Rule of Civil Procedure 35 governs mental examinations and authorizes 24 the court to “order a party whose mental or physical condition . . . is in controversy to 25 submit to a physical or mental examination by a suitably licensed or certified examiner.” 26 Fed. R. Civ. P. 35(a)(1). The order may be made “only on motion for good cause and on 27 notice to all parties and the person to be examined” and “must specify the time, place, 28 manner, conditions, and scope of the examination, as well as the person or persons who 2 18cv399-BAS (NLS) 1 2 will perform it.” Fed. R. Civ. P. 35(a)(2). A Rule 35 examination requires a showing that the party’s mental or physical 3 condition is “in controversy” and that there is “good cause” supporting the order. 4 Schlagenhauf v. Holder, 379 U.S. 104, 117 (1964). More than a showing of “mere 5 relevance” is required to meet this standard. Id. at 118. A claim of emotional distress 6 can place a person’s mental state “in controversy” if accompanied with one or more of 7 the following: 8 9 10 11 (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to support a claim of emotional distress; or (5) plaintiff’s concession that his or her mental condition is ‘in controversy.’ 12 Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995). The following factors are 13 considered in determining if there is “good cause” to permit the examination: “(1) the 14 possibility of obtaining desired information by other means; (2) whether plaintiff plans to 15 prove her claim through testimony of expert witnesses; (3) whether the desired materials 16 are relevant, and; (4) whether plaintiff claims ongoing emotional distress.” Mailhoit v. 17 Home Depot U.S.A., Inc., No. CV1103892DOCSSX, 2013 WL 12122580, at *4 (C.D. 18 Cal. Jan. 24, 2013). 19 20 c. Discussion Here, the Court finds that ordering Plaintiff to submit for an IME is appropriate. 21 Several of the factors under Mailhoit are met here. Plaintiff has put her mental state “in 22 controversy” since she maintains a cause of action for intentional infliction of emotional 23 distress. See ECF No. 1 at ¶¶ 38-41. Plaintiff has also indicated that certain “non- 24 retained expert witnesses, her treating physicians, will offer testimony regarding the 25 effect of stress on her multiple sclerosis symptoms and/or treatment[.]” ECF No. 24 at 2. 26 Additionally, the desired IME is relevant to her claim of intentional infliction of 27 emotional distress, as well as her request for emotional distress damages for other claims. 28 Moreover, in light of the posture of the claims at issue and the Court’s preference for 3 18cv399-BAS (NLS) 1 deciding cases on the merits, the Court finds it appropriate to permit the exam. 2 3 d. Scope of Examination The parties propose that Dr. Ben Frishberg and Dr. Mark Kalish evaluate Plaintiff 4 at Dr. Frishberg’s office, located at 6010 Hidden Valley Rd, Suite 200, Carlsbad, CA 5 92011. ECF No. 24 at 2. Dr. Frishberg intends to conduct an exam regarding Plaintiff’s 6 multiple sclerosis diagnosis, and Dr. Kalish intends to conduct a psychiatric interview 7 and psychiatric testing, which may include the Minnesota Multiphasic Personality 8 Inventory 2 (“MMPI-2”). Id. The parties estimate that the IME will take seven hours, 9 exclusive of breaks. Id. The parties also plan to record the IME via audio tape. Id. 10 The Court agrees that Dr. Kalish’s examination is needed because of Plaintiff’s 11 emotional distress claims, and finds that Dr. Frishberg’s examination is also needed, and 12 not duplicative, because Plaintiff has claimed that the emotional distress exacerbated her 13 multiple sclerosis. See id. at 2. Thus, the Court finds the scope of the examination to be 14 appropriate. 15 Accordingly, the Court GRANTS the motion and ORDERS as follows: 16 (1) Plaintiff is ordered to undergo an IME with Dr. Ben Frishberg and Dr. Mark 17 Kalish, to be conducted on April 16, 2019 at 8:30 a.m. at 6010 Hidden 18 Valley Rd, Suite 200, Carlsbad, CA 92011. 19 (2) The examination will be conducted for the purpose of determining the nature 20 and extent of plaintiff’s emotional distress as alleged in the first complaint in 21 this action. The examination shall last no more than seven hours, 22 encompassing both doctor’s exams, interviews, and the psychological testing 23 components. 24 2. MOTION FOR EXTENSION OF EXPERT DISCLOSURE DEADLINE 25 The parties request a limited extension of expert disclosure deadlines, only as to 26 the doctors performing the IME, Dr. Frishberg and Dr. Kalish. ECF No. 23. The parties 27 contend that they have been working diligently and in good faith to find available dates 28 for the IME, but were unable to identify any mutually agreeable dates in March. Id. at 2. 4 18cv399-BAS (NLS) 1 Since the Court has granted the IME, the Court finds good cause to GRANT the request 2 for a limited extension; however this extension will not alter any other dates in the 3 scheduling order. The Court will extend the expert disclosure deadline for Dr. Ben 4 Frishberg and Dr. Mark Kalish to April 30, 2019. All other dates shall remain as 5 previously set. 6 7 IT IS SO ORDERED. Dated: March 18, 2019 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18cv399-BAS (NLS)
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