Petition for a writ of mandamus or prohibition, 28 U.S.C. § (a), against the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge. Petition granted, order below vacated and cause remanded for proceedings consistent with this opinion.
Anderson, Mansfield and Oakes, Circuit Judges. Mansfield, Circuit Judge (concurring and dissenting).
This petition for a writ of mandamus or prohibition, 28 U.S.C. § 1651(a), was brought by the plaintiff in a civil rights action to recover damages allegedly sustained as a result of forced medication administered her in 1968 in violation of her first amendment right to freedom of religion.*fn1 The trial court, in an oral ruling from the bench on January 11, 1974, later confirmed in an order signed January 22, 1974, ordered a physical and mental examination of plaintiff to take place at Brooklyn State Hospital and stayed all further proceedings until the results of the test. She likewise objects to this examination on religious grounds, and points out that her "physical condition is not and has never been involved in this case." Beyond this, on oral argument before us plaintiff's counsel was willing to and did represent and agree that the only present mental problem of plaintiff allegedly caused by the 1968 forced medication is "an unpleasant memory," this memory going to show the severity of the past suffering. Thus plaintiff is willing to abandon any claim that any present or anticipated physical or mental disability or condition was caused by the 1968 treatment on which her case is based.*fn2 Under these circumstances we do not see what purpose could be served by a Rule 35 examination which under its own terms may be ordered only "when the mental or physical condition . . . of a party . . . is in controversy. . ." Moreover, while the underlying constitutionality of Rule 35 is not in question, as it was in Sibbach v. Wilson & Co., 312 U.S. 1, 85 L. Ed. 479, 61 S. Ct. 422 (1941) (5-4 decision), and Schlagenhauf v. Holder, 379 U.S. 104, 114, 13 L. Ed. 2d 152, 85 S. Ct. 234 (1964), and while Rule 35 is not limited in application to actions for personal injuries, Beach v. Beach, 72 App. D.C. 318, 114 F.2d 479 (1940); but cf. Wadlow v. Humberd, 27 F. Supp. 210 (W.D. Mo. 1939), the required showing of "good cause" for the examination and that the condition of the party be "in controversy" are not mere formalities. Schlagenhauf v. Holder, 379 U.S. at 118. This case is like Coca-Cola Bottling Co. v. Torres, 255 F.2d 149, 153 (1st Cir. 1958), where, in a suit for damages for injuries sustained by drinking from a bottle containing the proverbial putrefied mouse, the court upheld denial of a physical examination on the basis that the plaintiff was not seeking damages for any present suffering but only for past physical injury and emotional disturbance, the remembrance of the bad taste going only toward showing the severity of that plaintiff's past suffering. Mandamus lies here to correct an abuse of discretion in ordering the examination, Schlagenhauf v. Holder, 379 U.S. at 110, under the "special" circumstances of this case.*fn3
It is true that petitioner here sought a protective order against the taking of her deposition because of the mental anguish it would allegedly cause. This does not, however, by itself place her mental condition in controversy; whether the court will grant or deny the protective order (seeking primarily to have her deposition taken by written interrogatories) has not yet been determined and is not, therefore, a consideration presently before this court.
Petitioner also argues that the case should be transferred to a district judge other than the one who dismissed her claim in the first instance. Even though Rule 34 of the General Rules of the United States District Courts for the Southern and Eastern Districts of New York provides for conduct of proceedings by the original judge if the proceedings do not require the trial of an issue of fact, we are reluctant to read it as per se disqualifying the judge in cases where there is an issue of fact to be tried, and we are reluctant to exercise our undoubted power for transfer except under the most compelling circumstances. See Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, slip op. 1283 (2d Cir. 1974),; Taylor v. United States, 487 F.2d 307 (2d Cir. 1973). Here the judge was requested to transfer the case to another judge and, petitioner's counsel's affidavit alleges, the judge granted the motion for a physical and mental examination without "bothering" to read the arguments and authorities in a brief submitted apparently the day before the hearing.*fn4 If this indeed took place, and without reason or justification, such judicial conduct is the very kind of thing that calls to mind Farrer Herschell's well-known retort at the Bar when Sir George Jessel attempted to cut him short in argument: "Important as it was that people should get justice, it was even more important that they should be made to feel and see that they were getting it." 2 J. Atlay, Victorian Chancellors 460 (1908). On remand, doubtless, the district judge will give very serious consideration to whether transfer would not serve the appearance of justice and thereby help assure its existence.
Petition for mandamus granted and cause remanded for proceedings consistent herewith.
Petition for mandamus granted and cause remanded for proceedings consistent herewith.
MANSFIELD, Circuit Judge (Concurring and Dissenting):
I concur in the denial of transfer of this case to another district judge. However, I would go further and hold that there was no abuse of discretion or usurpation of power on the part of the district court warranting issuance of the extraordinary remedy of mandamus at all. On the contrary his order granting an examination of petitioner pursuant to Rule 35, F.R. Civ. P., was supported by a showing of good cause and well within his discretionary powers. Petitoners' "constitutional" claim to be relieved of such an examination, is nothing more than a smokescreen which has the effect of obstructing justice and denying respondents the fair trial to which they are entitled under the Federal Rules of Civil Procedure.
Petitioner's complaint alleges that the medication wrongfully forced upon her by respondents has "caused me great emotional stress and anguish, pain and suffering, indignity and humiliation," and "caused me to become physically ill," for all of which she seeks $50,000 damages. In an affidavit sworn to as recently as November 27, 1973, she further states under oath that "the pain inflicted on me by the doctors in the hospital caused me a great deal of mental anguish . . . also this case has made me undergo a great deal of suffering." These allegations are denied by the respondents. Thus plaintiff's mental and physical condition is clearly in controversy.
Petitioner having thus put her mental and physical health squarely in controversy, it seems to me to be elementary that "good cause" exists within the meaning of Rule 35, F.R. Civ. P., for the conduct of a physical and mental examination of petitioner for the purpose of determining whether she has suffered any of the physical and mental injuries alleged and, if so, whether they are attributable to the alleged forced medication or to some other causes. As the Supreme Court said in the celebrated case of Schlagenhauf v. Holder, 379 U.S. 104, 119, 13 L. Ed. 2d 152, 85 S. Ct. 234:
"A plaintiff in a negligence action who asserts mental or physical injury, cf. Sibbach v. Wilson & Co., supra, 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. This is not only true as to a plaintiff, but applies equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for example, where insanity is asserted as a defense to a divorce action. See Richardson v. Richardson, 124 Colo. 240, 236 P.2d 121. See also Roberts v. Roberts, 198 Md. 299, 82 A.2d 120; Discovery as to Mental Condition Before Trial, 18 J. Am. Jud. Soc. 47 (1934)."
I find it rather extraordinary that the court does not adhere to the foregoing elementary principle, much less that it grants the extraordinary relief of mandamus. It is the petitioner, not the respondents, who initiated this lawsuit and who seeks damages. While it may offend her religious principles as a Christian Scientist to submit to physical or mental examination, to deny the examination would violate respondents' right to a fair trial. Under such circumstances petitioner, by seeking relief, waives the right she might otherwise have had to refuse an examination, whether or not that right be labelled ...