The opinion of the court was delivered by: James Orenstein, Magistrate Judge
The defendants in this civil rights lawsuit, invoking Federal Rule of Civil Procedure 35, seek to compel a plaintiff who claims to have suffered only "garden variety" emotional distress to submit against his will to an examination by a forensic psychiatrist of the defendants' choosing. They purport to justify this request by arguing that an opinion from their "renowned" psychiatric expert is critical in allowing the trial jury to determine whether the plaintiff really was scared, embarrassed, humiliated, and upset at the time of the events in issue; whether he continues to experience such emotions; and whether those emotions were caused by the events he describes. Such intrusive discovery -- a forced psychiatric examination to explore allegations that a plaintiff has experienced universally familiar emotions -- is generally not available in comparable cases where a plaintiff claims to have been subjected to illegal discrimination and other civil rights violations by an employer. Nevertheless, the defendants assert that the latter common-sense rule does not (and should not) apply in a case where the plaintiff claims to have been subjected to illegal discrimination and other civil rights violations by a government official or other non-employer. I disagree, and therefore deny the motion to compel.
Plaintiff Raed Jarrar ("Jarrar") has filed an action against defendants Garfield Harris, Franco Trotta, and Jetblue Airways Corp. seeking (in addition to certain declaratory and injunctive relief) monetary damages for emotional distress that he claims to have suffered by virtue of the defendants' alleged violation of his civil rights. In describing his emotional injury, Jarrar does not allege that he suffered any severe psychological harm or even that he sought treatment from a psychologist or psychiatrist for such harm as he did suffer; he claims no more than that he experienced emotions to which all human beings are subject at some point in their lives. Specifically, as summarized by the defendants (albeit with additional cumulative examples), he claims to have been "scared," "shocked," "terrified," "embarrassed, ashamed, humiliated and upset" as a result of the defendants' alleged misconduct at the time it occurred, and that he "continues to feel uncomfortable ... afraid ... [and] worried." Docket Entry ("DE") 29 (quoting DE 20 (Amended Complaint ("Complaint")) ¶¶ 23, 26, 37, 44, 51).*fn1
The defendants contend that by making such allegations, Jarrar has placed his mental condition in controversy, and that there is accordingly good cause for the examination they seek to compel. See DE 29 (letter motion); DE 30 (supplemental letter in support). Jarrar contests both of those assertions; in particular, he argues that his allegations of run-of-the-mill emotional distress do not place his mental state in controversy within the meaning of Rule 35, and therefore that an independent medical examination ("IME") by a psychiatrist is inappropriate. DE 31.
At the heart of the parties' dispute is the issue of whether a particular line of case law -- one that draws a distinction, for purposes of determining whether a parties' mental state is "in controversy," between "garden variety" emotional distress claims and those of a more severe nature -- applies beyond the context of employment discrimination cases, and specifically to this constitutional tort case. See Turner v. Imperial Stores, 161 F.R.D. 89 (S.D.Cal. 1995); Fox v. Gates Corp., 179 F.R.D. 303 (D. Colo. 1998). I invited the parties to brief that issue; specifically, I asked for their views on the extent to which the instant discovery matter was similar to or differs from, factually or legally, a similar issue that I resolved in an earlier employment discrimination case. See Brown v. Mineta, docket no. 03-CV-2594 (DRH), DE 23 (Memorandum and Order denying motion to compel psychiatric examination) (E.D.N.Y. Dec. 27, 2004). In Brown, I denied the government's Rule 35 motion where the plaintiff claimed that the defendant's conduct caused her to suffer "embarrassment and humiliation" for which she never sought treatment and would seek to prove at trial solely through her own testimony. For the reader's convenience, I reproduce below the relevant portion of my analysis in that case:
The prospect of defending against such subjective proof does not make it necessary or appropriate for an opposing party to delve into the plaintiff's psychiatric history or conduct an independent mental examination. The government has deposed the plaintiff and can plainly cross-examine her at trial if and when she testifies to her claimed embarrassment and humiliation. I do not believe the government needs the further discovery it seeks in order to combat such testimony. Indeed, with respect to the request for an expert examination, I doubt that the matter meets the threshold of being reasonably likely to lead to the discovery of admissible evidence: embarrassment and humiliation are human emotions with which every human is familiar, and need no explication by an expert. A party seeking to have a mental health professional opine as to whether an opposing party truly felt embarrassed or humiliated or as to what it means to experience such emotions would be hard pressed to explain why such testimony was beyond the ken of a lay jury.
Id. at 5. I later denied the government's motion for reconsideration of that order, and the assigned district judge overruled the government's objections to both of the rulings against it. Brown, DE 40 (E.D.N.Y. Mar. 22, 2005) (denying government's motion for reconsideration); see also Brown, DE 62 (E.D.N.Y. Oct. 14, 2005) (Hurley, J.) (agreeing that denying of the government's motions was consistent with the "majority view" under relevant case law).
In response to my request for further briefing discussing the applicability of my decision in Brown, the defendants filed a supplemental letter arguing that my reasoning in that case -- and the legal authority on which I relied -- should apply exclusively in the employment discrimination context; at a minimum, they argued, it should not apply in constitutional tort cases like this one. See DE 30 at 1-2. According to the defendants, a plaintiff in a constitutional tort case who asserts that the alleged tort resulted in mental distress necessarily places her mental condition in controversy and must submit to an IME. Id. at 2.*fn2 The defendants further argue that an IME is "particularly critical" here because Jarrar must establish that he suffered an actual injury in order to recover on his compensatory damages claim, and that if his only evidence in that regard is his own testimony the defendants should in fairness be permitted to challenge it through expert opinion. See DE 29 at 3; DE 30 at 3-4.
Jarrar responded the same day, arguing essentially that the defendants have overreached. He contends that the cases cited by the government do not support the broad proposition that all plaintiffs in constitutional tort cases who allege mental distress must submit to an IME; rather, the plaintiffs in those cases were required to do so because they undoubtedly placed their mental condition in controversy within the meaning of Rule 35. See DE 31 at 2. As discussed below, I agree with Jarrar.
Pursuant to Federal Rule of Civil Procedure 35: 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.
Fed. R. Civ. P. 35(a)(1)-(2)(A). Rule 35 requires "discriminating application" by the trial judge. Schlagenhauf v. Holder, 379 U.S. 104, 117-18 (1964). While the movant need not prove its case on the merits, a movant can neither meet his burden to demonstrate that an adversary's "mental ... condition ... is in controversy" nor satisfy the "good cause" requirement "by mere conclusory allegations of the pleadings [or] by mere relevance to the case..." Id. Rather, the movant must make "an affirmative showing ... 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 ...