UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 20, 2007
SHERRY BENDER, PLAINTIFF,
ARIEL DEL VALLE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge
MEMORANDUM OPINION & ORDER
Plaintiff, Sherry Bender ("Bender"), filed this action alleging numerous civil rights violations during an altercation with authorities at the office of the Social Security Administration, which ended in Bender's arrest. Before this Court is a request by defendants Carlos Ortiz, Stephen Bekesy, and Richard Matos (collectively, the "Bivens defendants") that the Court order Bender to submit to a mental examination. For the reasons which follow, the request is GRANTED.
The Bivens defendants argue that they are entitled to an order compelling Bender to submit to a mental examination on three grounds. First, they assert that Bender's complaint puts her mental condition at issue "by seeking damages for psychological injuries, including post-traumatic stress and personality changes." Memorandum of Law in Support of the Bivens Defendants' Motion to Order Plaintiff's Mental Examination ("Def. Mem."), at 1. Second, the Bivens defendants allege that Bender's mental state on the day of the alleged civil rights violations is relevant to a factual dispute in the case. Id. at 2. They assert that there is evidence to support the contention that Bender may have suffered from post-traumatic stress disorder and a paranoid psychosis at the time of the incident, and that, as a result of these conditions, Bender may have behaved irrationally, erratically or violently. Id. They argue that, based on this evidence, a retrospective psychiatric examination would be highly probative. Id. at 13. Third, the Bivens defendants assert that the Court should order Bender to submit to a mental examination in order to evaluate her ability to "perceive, recollect, and testify accurately and truthfully." Id. at 14. They argue that Bender's psychiatric records, obtained during discovery, indicate that she may be suffering from a psychotic disorder which causes delusions, and that such a disorder would affect her credibility. Id. at 14-15.
Bender opposes the Bivens defendants' request on three grounds.First, she argues that the doctor chosen by defendants, Dr. Jason Edward Hershberger, M.D.("Dr. Hershberger"), is not a "neutral, independent, or . . . disinterested party," and, therefore, is an inappropriate choice to conduct the examination. Plaintiff's Response in Opposition ("Pl. Opp."), at 2. Second, Bender asserts that her mental state on the day of the incident is not in controversy because she was examined by mental health professionals after being admitted to Beth Israel Hospital on July 17, 2002, and their reports are the best evidence of her mental state at the time. Id. at 4-5. Third, while Bender acknowledges that she did suffer "psychological trauma" as a result of defendants' actions, she argues that a mental examination is nonetheless not necessary for two reasons. First, her injuries are not too difficult for a lay person to understand without expert testimony. Id. at 11-12. Bender argues that this point is strengthened by the fact that she is a health care professional, id. at 12, and this Court presumes that Bender is inferring that she will be able to explain her injuries to the jury herself.Second, Bender asserts that a mental examination by defendants' expert is not necessary because she has provided a sworn affidavit from a psychiatrist, Dr. Ann Winton ("Dr. Winton), stating that Bender does not suffer from a delusional disorder. Id. at 12, 23-24.
A. The Legal Standard
Upon a showing of good cause, a court may order a party to submit to a mental examination when "the mental . . . condition . . . of a party . . . is in controversy." FED. R. CIV. PRO. 35(a).The addition of the good cause standard indicates that there must be a "greater showing of need under Rule . . . 35 than under the other discovery rules." Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964) (internal citations omitted).The standard requires more than "mere conclusory allegations of the pleadings" or "mere relevance to the case," but"does not . . . mean that the movant must prove his case on the merits in order to meet the requirements for a mental . . . examination." Id. at 118-119.Rather, the moving party must make "an affirmative showing" that the plaintiff's mental condition is in controversy, and that showing must be supported by sufficient information to allow the Court to determine that good cause exists. Id. at 119-20. However, if a plaintiff asserts that a defendant's actions caused a mental injury or ongoing mental illness, that plaintiff puts her mental condition clearly in controversy, and provides defendant with the good cause necessary for an order under Rule 35(a) allowing a mental examination. Id. at 119; see also Hodges v. Sullivan, 145 F.R.D. 332, 334 (S.D.N.Y. Jan. 6, 1993)(citing Sibbach v. Wilson & Co., 312 U.S. 1 (1941)).
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