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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

____________________________________
)
)
D.H., by and through her next friend and )
Parent, Robert Holmes, )
)
Plaintiff, ) Civil Action No. 1:13-cv-466-HSO-RHW
v. )
)
Moss Point School District, et al., )
)
Defendants. )
)
____________________________________)

PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO
COMPEL RULE 35 PSYCHIATRIC EXAM

Minor Plaintiff D.H., by and through her undersigned counsel, respectfully submits this
memorandum in opposition to Defendants request for an independent psychiatric exam of
Plaintiff as requested in Defendants Motion to Compel Rule 35 Psychiatric Examination
(Motion) (ECF No. 29).
INTRODUCTION
Defendants seek pursuant to Fed. R. Civ. P. 35 (Rule 35) to conduct an independent
medical examination (IME) of the minor Plaintiff in this Title IX and Equal Protection Clause
discrimination case. Resort to such an intrusive discovery mechanism is contrary to Rule 35 and
unwarranted in this case. Defendants request should therefore be denied.
Defendants have failed to meet their affirmative burdens under Rule 35 to justify their
request for an IME. According to the plain language of Rule 35, the party seeking an IME must
provide through evidence that: (1) a plaintiffs mental state is in controversy as contemplated
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by Rule 35; and (2) there is good cause for the invasive IME. See Fed. R. Civ. P. 35;
Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964).
First, Defendants have failed to establish that Plaintiffs mental state is in controversy
for purposes of Rule 35. Defendants Motion attempts to address the in controversy element
by pointing to allegations in Plaintiffs Complaint that Plaintiff suffered emotional distress as a
result of Defendants discriminatory conduct and seeks damages for that emotional distress. But
such garden variety allegations of emotional distress do not place Plaintiffs mental state in
controversy. The Rule 35 in controversy analysis is more searching and Defendants have not
met their burden. At best, Defendants have shown that the basis for the IME is that they
generally deny liability for any emotional distress caused by their discriminatory conduct. That
is insufficient to establish that Plaintiffs mental state is in controversy for purposes of Rule 35.
Second, Defendants have failed to establish let alone even attempt to address the
required good cause element for an IME. Even if, Defendants had established that Plaintiffs
mental state is in controversy which they have not Defendants have not shown that good
cause exists for an intrusive psychiatric examination of the minor Plaintiff in this case.
Defendants failure to address the good cause element alone is enough to deny their request for
an IME. In any event, good cause does not exist for an IME of Plaintiff.
In the context of Rule 35, good cause requires a showing of specific facts that
demonstrate the need for the information sought and lack of means for obtaining it elsewhere.
Defendants have shown neither. Defendants only asserted purported reason for requesting the
IME is that they deny liability for Plaintiffs emotional distress. But like Plaintiffs routine
assertion of emotional distress, that is merely a routine conclusory statement. Defendants have
not presented the Court with any specific facts demonstrating the need for an IME, or explained
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the purpose of the IME or what evidence they seek. Instead, Defendants request for the IME
seems to be primarily a fishing expedition aimed at attacking Plaintiffs credibility, contrary to
the true purpose of the rule.
Furthermore, Defendants have requested an IME before any other discovery has been
taken of Plaintiff through ordinary, less intrusive means. At this stage of discovery, Defendants
cannot possibly show that they are unable to obtain information necessary for their defenses
absent an IME, and therefore, they cannot meet their burden of showing good cause. At a
minimum, Defendants Motion is premature because they have not exhausted less the intrusive
discovery mechanisms, including written discovery and depositions, prior to requesting an IME
and demonstrated that that discovery is in some way insufficient.
Because an IME should be granted judiciously and Defendants have failed to meet their
burden in support of their request for an IME, Defendants Motion should be denied.
RELEVANT PROCEDURAL BACKGROUND

On April 17, 2014, seven days before the status conference before this Court, the parties
submitted a draft case management order and noted the parties dispute as to whether Defendants
were entitled to an IME. On April 24, 2014, the Court held a Case Management Conference
(Conference) and it is Plaintiffs counsels recollection that during the Conference, the Court
stated that it would address the issue of an IME if, and when, presented to the Court. Finally,
Defendants did not provide the Court with a proposed order contemplated by Rule 35 which
states that a Rule 35 order for and IME must specify the time, place, manner, conditions, and
scope of the examination, as well as the person or persons who will perform it. Fed. R. Civ. P.
35(a)(2)(B). On April 24, 2014, the Court entered the Case Management Order. ECF No. 20.
On J uly 23, 2014, Defendants served discovery requests on Plaintiff. The next day, Defendants
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sent counsel for Plaintiff an email stating that Defendants would like to have Dr. Thompson
conduct a psychiatric evaluation of Plaintiff. Given the parties differing recollections of the
Conference, Plaintiff requested and the Court held a status conference to discuss this issue on
August 14, 2014.
During the status conference, the Court allowed the parties to brief this issue and
pursuant to the Courts order, Defendants filed their request citing primarily to the Complaint
and telephonic conferences before the Court, and listing the qualifications of their proposed
expert. See ECFNo 30.
Discovery has only just begun in the case, with the parties having exchanged initial
disclosures and written discovery. Defendants served responses to Plaintiffs first set of requests
for the production of documents on August 21, 2014. Plaintiffs responses to Defendants first
set of requests for the production of documents and interrogatories are due on September 8,
2014. In response to Defendants requests for the production of documents, Plaintiff has
executed medical and education records releases, allowing Defendants access to relevant records.
No depositions have been noticed or taken thus far, but are anticipated.
ARGUMENT

A. Defendants Have Failed to Show They Are Entitled to a Rule 35 Examination
of the Minor Plaintiff.

Rule 35 provides that [t]he court . . . may order a party whose mental or physical
condition . . . is in controversy to submit to a physical or mental examination upon motion for
good cause . . . . Fed. R. Civ. P. 35(a). Accordingly, the party moving for an IME must show:
(1) that the plaintiffs mental state is in controversy; and (2) good cause. Schlagenhauf v.
Holder, 379 U.S. 104, 118-19 (1964); Acosta v. Tenneco Oil Co., 913 F.2d 205, 208 (5thCir.
1990). These requirements are plainly expressed limitations on the use of the rule rather than a
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mere formality. Wright & Miller, 2234.1 at 478-79 (citing Schlagenhauf, 379 U.S. at 118).
Given these express limitations, Rule 35, therefore, requires discriminating application by the
trial judge, who must decide, as an initial matter in every case, whether [the movant] has
adequately demonstrated the existence of the Rules requirementsthe movant must produce
sufficient information, by whatever means, so the district judge can fulfill his functions
mandated by the Rule. Schlagenhauf, 379 U.S. at 118-19.
The in controversy and good cause requirements 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 as to which the examination is sought is really and
genuinely in controversy and that good cause exists for ordering each particular examination.
Denny v. Wingspan Portfolio Advisors, LLC, Case No. 3:11-CV-1094-DBF, 2013 WL 2434572,
at *1 (N.D. Tex. J une 5, 2013) (citing Schlagenhauf, 379 U.S. at 118). Defendants have not met
their burden with respect to either the in controversy or good cause element of Rule 35. As to
the first element, Defendants merely assert that Plaintiff alleges mental and emotional injuries.
But under the searching analysis required by Rule 35, that is not enough to establish the in
controversy requirement. As to the second element of good cause, Defendants have never,
whether in the context of the Case Management Conference or Motion, addressed the
requirement that they demonstrate good cause for resorting to the invasive Rule 35 discovery
mechanism. As such, Defendants have not met their burden in support of their Rule 35 request
and an IME should not be ordered.
1. Plaintiffs Mental State is Not in Controversy for Purposes of Rule 35

The in controversy requirement is intensively fact-specific. Lahr v. Fulbright &
J aworski, L.L.P., 164 F.R.D. 204, 207 (N.D. Tex. 1996). Generally, one of the following
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conditions should be present to find that the plaintiffs mental condition is in controversy for the
purposes of Rule 35: 1) a cause of action for intentional or negligent infliction of emotional
distress; 2) an allegation of specific mental or psychiatric injury or disorder; 3) a claim of
unusually severe emotional distress; 4) plaintiffs offer of expert testimony to support such a
claim; or 5) plaintiffs concession that his or her mental condition is in controversy within the
meaning of Rule 35. See Ornelas v. S. Tire Mart, LLC, 292 F.R.D. 388, 393-94 (S.D. Tex.
2013). None of these conditions is present here.
Claims of discrimination, like those in the Complaint here, not meeting one of the above
prongs are garden variety claims presenting a routine request for damages for mental
anguish, which does not place a partys mental condition in controversy, since they may be
evaluated by an objective fact-finder and not require expert testimony based on an IME. See
Ornelas, 292 F.R.D. at 393-94; Denny, 2013 WL 2434572, at *2. Simply put, Plaintiffs Equal
Protection and Title IX discrimination claims present a routine request for damages for mental
anguish and can be evaluated by an objective fact finder. In such actions, a plaintiffs request for
damages related to mental distress and defendants denial of liability for the alleged actions
giving rise to the mental distress does not by itself necessarily place their mental state in
controversy. See, e.g., Lahr, 164 F.R.D. at 204. Rule 35 was not intended to authorize
sweeping probes into a plaintiffs psychological past simply because the plaintiff has been
injured and seeks damages for mental anguish as a result of the injury. E.E.O.C. v. Old W.
Furniture Corp., 173 F.R.D. 444, 446 (W.D. Tex. 1996). Yet, Defendants primary basis for the
IME is indeed Plaintiffs request for mental and emotional injuries. See ECF No. 30, 2 (By
alleging mental and emotional injuries, D.H. has placed her mental condition at issue. The
Defendants are, therefore, entitled to an independent psychiatric examination of D.H.).
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Although a plaintiffs psychiatric or psychological treatment as a consequence of discriminatory

treatment may be relevant to this inquiry, that does not mean that a plaintiffs mental state is in
controversy for purposes of Rule 35. See Lahr, 164 F.R.D. at 209.
Pearson v. City of Austin, Case No. CIV. A. 99-CA-434J N, 2001 WL 681663 (W.D.
Tex. Apr. 4, 2001), is instructive and supports denial of Defendants Rule 35 request. In
Pearson, a group of plaintiffs alleged mental distress damages stemming from an alleged
wrongful arrest, and defendants sought an IME because they thought it would be difficult to
distinguish mental distress stemming from the acts in question from past stressful events in the
plaintiffs lives. Id. at *2. The Pearson court held that because the United States Supreme Court
has admonish[ed] [courts] to compel psychiatric examinations judiciously, the plaintiffs
potentially relying heavily on mental distress as a portion of their damages but not seeking it as
a cause of action, did not place their mental condition in controversy for the purposes of Rule 35.
See id. In support of its holding, the court reasoned that the defendants would be free to seek
discovery regarding plaintiffs emotional distress allegations and cross-examine them without
resort to expert testimony from a Rule 35 IME, as those allegations were of a nature that an
objective fact finder could evaluate them.
1
See id. The same is true of the minor Plaintiff in the
instant case. The Pearson holding should apply similarly here: Plaintiff admittedly was receiving
mental health services prior to her time within the District and Defendants deny liability to the
mental distress she suffered on account of their actions. However, her mere request for

1
With respect to one plaintiff in Pearson who had designated a psychiatrist to testify that that plaintiffs
pre-existing mental conditions were exacerbated by defendants actions, the court concluded that the
plaintiff had placed her mental state in controversy since the experts claims were not of a nature that an
objective fact-finder could evaluate and apportion. See Pearson, 2001 WL 681663 at *2. Plaintiff here
has not similarly designated such an expert and therefore cannot be said to have put her mental state in
controversy as the plaintiff in Pearson had done.
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emotional distress damages as a result of Defendants discriminatory acts has not placed her
mental state in controversy. See Lahr, 164 F.R.D. at 204.
Defendants reliance on Francois v. Colonial Freight Systems, Inc., Case No.
3:06CV434BS, 2006 U.S. Dist. Lexis 89471 (S.D. Miss. December 11, 2006), the only authority
cited in support of their Motion, is misplaced. See ECF No. 30 at 3. Defendants cite to
Francois for the principle that the parties mere denial of liability for a plaintiffs injury warrants
an IME. See id. Defendants overstate its import. Francois addressed the issue of an IME in the
case of a negligence action stemming from a vehicular accident, and relates to the Supreme
Court holding that when a plaintiff in a negligence action asserts mental or physical injury and
defendants deny liability, on the sole basis of the negligence pleadings, the plaintiff has clearly
placed their mental condition in controversy. See id.; see also Schlagenhauf, 379 U.S. at 121
122. Here, Plaintiffs claims are dissimilar as they involve only garden variety emotional
distress damages.
Because Plaintiff makes only garden variety claims of mental distress arising from
Defendants discriminatory conduct, Plaintiffs mental state cannot be said to be in controversy.
Therefore, Defendants have not met their burden of establishing that Plaintiffs mental state is in
controversy for the purposes Rule 35 and their request to proceed with an IME should be denied.
2. Defendants Have Failed to Show Good Cause for an IME of the
Minor Plaintiff Because it Does Not Exist.

An IME pursuant to Rule 35 may only be granted if the party requesting the IME shows
good cause that an IME is necessary. Rule 35(a)(2)(A). Even if Defendants had succeeded in
showing that Plaintiffs mental state was in controversy which they have not that alone does
not justify a Rule 35 IME. The good cause requirement must also independently be met.
Defendants have not shown, let alone attempted to show, that good cause exists for an IME of
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the minor Plaintiff in this case. Defendants failure to address the required good cause element
of a Rule 35 request alone is sufficient to deny their Motion. Irrespective of Defendants failure
to even attempt to demonstrate that good cause, it does not exist in this case to justify an IME of
minor Plaintiff.
Good cause requires a showing of specific facts that demonstrate the need for the
information sought and lack of means for obtaining it elsewhere. Fischer v. Coastal Towing,
Inc., 168 F.R.D. 199, 200-01 (E.D. Tex. 1996) (citing Schlagenhauf, 379 U.S. 105 at 118). The
courts analysis is intensively fact-specific, Lahr, 164 F.R.D. at 199, and what may be good
cause for one type of examination may not be so for another. Schlagenhauf, 379 U.S. at 118.
Factors relevant to good cause include whether: (1) the plaintiff has retained her own experts
to testify as to her mental distress; (2) the party seeking the mental examination has exhausted
alternative discovery procedures prior to seeking the examination; (3) the movant has shown the
specific facts that demonstrate the need for the information sought; and (4) the nature of damages
sought by a party. See Acosta, 913 F.2d at 209; Fischer, 168 F.R.D. at 200; Lahr, 164 F.R.D. at
200. These factors when considered in the context of this case, demonstrate that good cause for
a Rule 35 IME does not exist.
Plaintiffs have not retained an expert to testify as to her mental distress. To the extent
Plaintiff intends to offer testimony on that subject, it will come from fact witnesses and will be
able to be evaluated and considered by the jury without the need for expert testimony.
Therefore, this factor does not support a finding of good cause for an IME.
2

Defendants have not exhausted alternative discovery procedures prior to seeking the
IME. Discovery has just begun in this case. The parties have exchanged written discovery

2
While Plaintiff did not expect to offer expert opinion as to her damages or mental state, if an IME is
conducted, Plaintiff reserves the right to designate such an expert to offer opinions on those subjects.
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requests, including requests for medical records. As of the date of this memorandum, pursuant to
Defendants discovery requests, minor Plaintiff has provided authorizations for release to
Defendants of Plaintiffs relevant mental health records dating from her enrollment within the
District, and authorization from minor Plaintiff allowing Defendants access to her educational
records (which, on information and belief, also include certain mental health records) dating
from her enrollment within the District, for use in this litigation. Yet, without review of these
records or further discovery through alternative means, including a deposition of Plaintiff,
Defendants have insisted upon on an IME. Courts routinely look to whether the movant has
obtained discovery from alternate, less intrusive discovery procedures in lieu of and prior to
seeking the IME. See Acosta, 913 F.2d at 209 (finding no good cause for an IME since
defendants in age discrimination suit had deposed plaintiff and had received responses to
requests for production of documents and interrogatories); Pearson, 2001 WL 681663 at *2
(denying IME because defense counsel will be free to seek discovery regarding their claim
and the [p]laintiffs will be subject to cross examination...); Lahr, 164 F.R.D. at 201 (internal
citations omitted) (considering in the IME analysis the nature of the medical records produced
pursuant to routine discovery requests and movants experts explanation for the IME). Often,
this is achieved either through Defendants experts or counsel proving the specific factual need
for IME. See, e.g., Lahr, 164 F.R.D. at 201 (wherein court examines insufficiency of routine
discovery responses based on movants experts showing of the need for the information).
Defendants failure to exhaust alternative discovery methods demonstrates a lack of good cause
for an IME and warrants denial of their Motion. Defendants cannot possibly meet their burden
of showing a lack of means of obtaining the information they claim to need when they have not
even yet reviewed or obtained information from the regular discovery they have propounded and
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which is available to them. At a minimum, Defendants motion is premature and should be

denied until such time discovery is more developed and Defendants and/or Defendants expert
can attempt to meet their burden of showing good cause for an IME by making a proper
showing of specific facts that demonstrate the need for the information sought and lack of
means for obtaining it elsewhere. Fischer, 168 F.R.D. at 200-01 (citing Schlagenhauf, 379 U.S.
105 at 118).
Further, Defendants have failed to show any specific facts that demonstrate the need for
the IME. Defendants have provided nothing more than conclusory statements that they deny
liability and that Dr. Thompson is qualified to conduct the exam. This does not suffice to meet
the good cause burden.
As discussed above, the damages sought by Plaintiff in this case are for general garden
variety emotional distress which can be proven (or disproven) without the need for expert
testimony from an IME. Ordinary Rule 26 discovery is sufficient for the parties to address the
damages claims made in Plaintiffs Complaint. For this reason, good cause does not exist for
Defendants Rule 35 request.
Finally, Defendants bald assertions that they deny liability for Plaintiffs distress with no
evidence backing the need for an IME suggests a pretext for this wielding this discovery
mechanism as a tool to attack Plaintiffs credibility. This, however, goes beyond the parameters
of Rule 35 and risks opening the door to Rule 35 examinations for any witness who asserts a
civil rights violation. This is not the intended purpose of Rule 35.
CONCLUSION

For the reasons set forth above, Plaintiff respectfully requests that Defendants Motion
for a Rule 35 psychiatric examination be denied.
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Respectfully submitted, this the 27th day of August, 2014.

s/Elissa J ohnson
J ody E. Owens, II, MS Bar #102333
Elissa J ohnson, MS Bar #103852
SOUTHERN POVERTY LAW CENTER
111 E. Capitol Street, Suite 280
J ackson, MS 39201
Phone: 601-948-8882
Fax: 601-948-8885
jody.owens@splcenter.org
elissa.johnson@splcenter.org

Samuel E. Wolfe
Anjali J . Nair
SOUTHERN POVERTY LAW CENTER
400 Washington Ave.
Montgomery, AL 36104
Telephone: (334) 956-8200
Facsimile: (334) 956-8481
sam.wolfe@splcenter.org
anjali.nair@splcenter.org

(admitted pro hac vice)


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CERTIFICATE OF SERVICE

I, Elissa J ohnson, hereby certify that a true and correct copy of the foregoing document
was filed electronically. Notice of this filing will be sent by electronic mail to all parties by the
Courts electronic filiny system. Parties may access this filing through the Courts CM/ECF
System.
SO CERTIFIED, this the 27th day of August, 2014.
s/Elissa J ohnson
Elissa J ohnson



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