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Florida Bar Journal

Mental Examinations In Federal Employment Litigation

C omplete emotional tranquility is seldom attainable in the world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.1

Whether this principle from the Restatement of Torts discussion of the law of intentional infliction of emotional distress applies in employment claims can be debated. Yet what is clear is that virtually every employment lawsuit (where the underlying statute permits) asserts a claim for compensatory damages—damages for emotional distress, humiliation, embarrassment, and the otherwise intangible pain and suffering caused by the challenged employment action.

Not surprisingly, many defense attorneys assume that a plaintiff claiming “emotional distress” has placed his or her mental health at issue, thereby providing the defendant with a right of access to the plaintiff’s medical records. Typically, this may include subpoenas to health care providers as well as mental health professionals. The question then arises, when, or if, a Rule 352 m ental examination can be a useful tool in assessing any claim for emotional distress.

To be sure, a mental examination will provide insight into the plaintiff’s mental condition, such as whether the individual suffers from a personality or mood disorder which might otherwise affect that person’s perception of events. It will assist in assessing the nature and extent of the alleged emotional distress, and it can help ferret out malingerers. As defense counsel, however, what are your considerations in requesting a psychiatric examination? After all, plaintiff’s counsel is entitled to a copy of any reports or evaluations prepared by the examiner setting out the examiner’s findings. As plaintiff’s counsel, can you reduce the likelihood of having your client subjected to a mental examination by an expert of the defendant’s choosing? How, if at all, is this affected by the claims raised or the damages pled within your complaint?

This article addresses some of these issues concerning mental examinations in the context of federal employment litigation.

Authority for Mental Examinations
Contrary to popular belief, a plaintiff who seeks compensatory damages, i.e., damages for humiliation, emotional distress, or embarrassment, has not automatically placed his or her mental health sufficiently at issue to justify a mental examination. Our analysis begins with Rule 35(a), which provides in pertinent part:

When the mental. . . condition. . . of a party. . . is in controversy, the court. . . may order the party to submit to a. . . mental examination by a duly licensed or certified examiner. . . . The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, manner, place, conditions, and scope of the examination. . . .

As the text of Rule 35 indicates, there are two prerequisites before a mental examination may be ordered: 1) the mental health of the party must be in controversy, and 2) a request for the examination must be based on good cause shown. Unlike other discovery rules, which are afforded a liberal treatment and which identify the scope of discovery as that which is relevant and not privileged, Rule 35 includes additional requirements that the matter be in controversy and that the movant affirmatively demonstrate good cause. In Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Supreme Court squarely addressed construction of this language and established guidelines for lower courts to follow. The Court began by clarifying that the two prerequisites of Rule 35 are not a “mere formality.”

They 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. . . is really and genuinely in controversy and that good cause exists for ordering each particular examination. . . . Rule 35, therefore, requires discriminating application by the trial judge. . . .

* * *

Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff. . . who asserts mental or physical injury. . . 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.3

S ince Schlagenhauf, courts have struggled to define precisely when a plaintiff puts his or her mental condition in controversy by claiming damages for emotional distress.

A handful of courts have held that a claim for emotional distress, by itself, is sufficient to place a plaintiff’s mental health in controversy .4 N evertheless, the prevailing view is that a plaintiff’s mental health is not necessarily in controversy simply because that plaintiff seeks damages for emotional distress. This is because courts do not view emotional distress as synonymous with the mental condition requirement of Rule 35. “A person with no ‘mental condition’ may still suffer emotional distress which is compensable.”5 A lthough the 11th Circuit has not specifically addressed this issue, some courts within this circuit have accepted the prevailing view that Rule 35 mental examinations require something more than a claim for emotional distress.6 T hus, allegations of “humiliation,” “mental anguish,” or “emotional distress,” without more, have typically been viewed as insufficient to warrant a Rule 35 mental examination.

The same courts that hold to this prevailing view recognize that a mental examination is appropriate if any of the following factors are present:

1) The plaintiff asserts a claim for intentional infliction of emotional distress;

2) The plaintiff alleges a particular mental or psychiatric injury;

3) The plaintiff claims unusually severe emotional distress;

4) The plaintiff intends to offer expert testimony in order to support his or her emotional distress claim; or

5) The plaintiff concedes that his or her mental condition is in controversy.7

A quick glance at these factors reveals the obvious. For instance, if a plaintiff intends to offer an expert witness to support a claim for emotional distress, or if the plaintiff simply concedes that his or her mental condition is in controversy, then courts will generally permit a Rule 35 mental examination as a matter of course. What may not be as obvious, however, is that asserting a tort claim for intentional infliction of emotional distress—where the emotional distress is an essential element of liability and not merely damages—will subject a plaintiff to a mental examination by the defendant’s expert. In Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 554 (N.D. Ga. 2001), where the plaintiff alleged Title VII claims for discrimination and hostile work environment, the court granted defendant’s motion for a mental examination because plaintiff asserted a separate state law claim for intentional infliction of emotional distress.8

Similarly, a plaintiff may be subjected to a mental examination if he or she alleges specific and severe emotional injuries such as sleeplessness, depression, or being socially withdrawn on an ongoing basis. Courts deem this sufficient to warrant a mental examination since the emotional distress is particularized and ongoing.9 I n Ali v. Wang Laboratories, Inc., 162 F.R.D. 165 (M.D. Fla. 1995), the court permitted a mental examination of an Americans with Disabilities Act plaintiff where he claimed more than the “garden variety” emotional distress. The Ali court noted that the plaintiff was claiming “severe and permanent psychological damage,” ongoing depression, and damage to his personal character and relationships. Courts have emphasized that this factor can be satisfied when a plaintiff asserts ongoing mental illness resulting from the complained-of conduct.10

Although the second prerequisite for a mental examination is a showing of good cause, courts tend to recognize that this merges with the requirements necessary to find that a party’s mental condition is in controversy. Once a plaintiff’s mental health is in controversy, courts have generally concluded that good cause exists for a mental examination. For instance, in Ali, the court granted defendant’s motion to compel plaintiff to submit to a mental examination, finding good cause for the examination because plaintiff had alleged specific mental and psychiatric injuries and because plaintiff was seeking substantial damages for alleged emotional distress.

Since plaintiff’s mental condition is in controversy and substantial damages are asserted, it is essential for defendant to have the reasonable opportunity to challenge plaintiff’s claim and testimony. . . . The testimony of an expert is a well-recognized and reasonable way of doing so. . .11

Other courts recognize that a plaintiff’s use of an expert witness to support a claim of emotional distress constitutes presumptive grounds for finding good cause.12

The thrust of these cases is the recognition that mental examinations may be an appropriate means for defending an employment claim, but they require a sufficient showing of entitlement either through plaintiff’s particularized allegations of mental injury, especially when accompanied by a demand for substantial damages, or through plaintiff’s use of expert testimony.

Conditions for Examination
Even where parties agree to conduct a mental examination, they are frequently at odds over the conditions for the examination itself. Rule 35 grants the court authority to determine these if the parties cannot agree. Rule 35(a) specifically provides that the court “shall specify the time, manner, place, conditions and scope of the examination and the person or persons by whom it is to be made.”

At the outset, the order must identify the examiner. This requires the defendant to identify the proposed examiner in its Rule 35 motion (usually defendant’s own expert) as well as the examiner’s clinical or academic qualifications. The fact that the proposed examiner has been retained by defendant as its own expert witness will not, by itself, preclude the examiner from conducting the examination.13

Next, parties frequently joust over who may attend the examination process. Although Rule 35 does not address the issue of who may be present at the examination, courts that have considered this issue have generally recognized that the presence of others may be a distraction or impediment to the examination process.14 In Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620 (D. Kan. 1999), a Title VII sexual harassment/retaliation claim where the court ordered a Rule 35 mental examination, the court thoughtfully considered the issue of who may attend the mental examination. After an extensive analysis, and after distinguishing mental from physical examinations, the court concluded that the presence of third persons or recording devices might impair the validity of the exam and “would inject a greater degree of the adversarial process into an evaluation that is intended to be neutral.”15 Similarly, in Shirsat v. Mutual Pharmaceutical Co., Inc. 169 F.R.D. 68 (E.D. Pa. 1996):

This Court finds that an observer, court reporter, or recording device would constitute a distraction during the examination and work to diminish the accuracy of the process.

* * *

[An] observer [could] potentially distract the examining psychiatrist and examinee thereby compromising the results of the examination. Moreover, the presence of an observer interjects an adversarial, partisan atmosphere into what should be otherwise a wholly objective inquiry. . . . The Court finds that the presence of an observer would lend a degree of artificiality to the examination that would be inconsistent with the applicable professional standard.16

Other frequent areas of dispute include the location of the examination and the nature of any tests performed. For example, parties often disagree as to whether the examiner’s office is a sufficiently “neutral” location for purposes of a mental health examination. In addition to a clinical interview, should the examiner be permitted to conduct diagnostic tests that could reveal a wealth of unrelated information about the plaintiff? In Breda v. Wolf Camera, Inc., 1998 WL 811551 (S.D. Ga. 1998), the district court ordered a Title VII plaintiff to submit to a mental examination in connection with claims for sexual discrimination and hostile work environment. Plaintiff challenged the expert’s proposed use of the Minnesota Multiphasic Personality Inventory-II and the Rorschach Inkblot tests on grounds that they would provide the defendant “with an unreasonably broad opportunity to learn things about [the plaintiff] that would not otherwise be discoverable.”17 N evertheless, the court allowed these tests to proceed since both are recognized as acceptable diagnostic indicators in a mental examination, and because questions regarding the accuracy or admissibility of such tests were better left to a pre-trial Daubert motion.

Clinical Issues
Given the potential that an employment claim plaintiff may be subjected to a mental examination, it is certainly worthwhile for plaintiff’s counsel to avoid what can be characterized as “traps of expedience”—a proof of the adage that “haste makes waste.” For example, when representing a plaintiff who claims emotional damages as a consequence of a challenged employment action, plaintiff’s counsel may be all too quick to send the plaintiff to a mental health provider on the claimant’s insurance panel. This is done to demonstrate that the plaintiff sought assistance while saving legal expenses by shifting the cost to the claimant’s insurance carrier. Presumably, the expectation is that the treating mental health provider will be able and willing to testify as a treating expert. Aside from the possible reluctance of the mental health professional to become engaged in litigation, the practitioner may also be ill-trained (if at all) and unfamiliar with litigation protocols (e.g., release of records, protection of privilege, evidentiary standards). Moreover, if the practitioner does testify, he or she is subject to an ethical challenge as to his or her objectivity, having been caught in what is referred to as a “dual role dilemma”—a role conflict that arises when a treating therapist also attempts to testify as a forensic expert addressing the psycho-legal issues in a case, such as the proximate cause of injury, or the possibility of malingering.18

When a mental health provider sees an employment plaintiff, there are additional “traps of expedience” for the evaluating provider that are worth noting:

First Trap: The evaluator agrees to accept a letter of protection in which he or she is given the promise of sharing in some future award in lieu of current payment.

This arrangement is neither ethical nor legal.19 A more professional approach to the payment of fees is for the attorney and the evaluator to recognize that in hiring the evaluator, what is promised (and expected) is the rendering of professional services to the best of the evaluator’s ability without warranties, representations or guarantees as to either the results of professional findings or the outcome as may be related to those findings. In other words, the results will speak for themselves, in return for which the evaluator will be compensated.

Second Trap: The evaluator does not amass a full history.

Such a history would reasonably include: 1) interviewing collateral sources of information either directly (interviews with spouses, significant others, co-workers) or indirectly (review of written pleadings, documents, depositions); 2) medical and pharmacy records, employment records, police or accident reports; and 3) any records from previous litigation. not performing this corroborating work, the ability to determine the contribution, if any, of previous trauma or prior emotional condition is limited to the plaintiff’s self-report, an obviously biased and limited presentation.

Third Trap: The evaluator neither addresses nor rules out malingering by accounting for its presence, or absence, in the evaluation process before the opposing expert can address this issue.

Malingering is broadly defined as producing, feigning, or exaggerating symptoms to achieve an external goal (e.g., fraudulently obtaining compensation in litigation, evading legal or military duties, or obtaining drugs).20

Until recently, assessing whether a subject was responding truthfully depended on traditional clinical methods for uncovering malingering. These methods consisted of being suspicious when patients claimed bizarre or unusual symptoms, indiscriminately described a wide variety of symptoms, claimed contradictory symptoms, and displayed inconsistencies between their performances on tests and their real-life behavior.

Fortunately, a number of new empirically validated psychological tests have been introduced21 that reliably distinguish between malingerers and nonmalingerers.22 These tests may be sufficient to meet the Daubert test for admissibility (although as of today this is unclear). Additionally, these tests are sufficiently sensitive (i.e., able to correctly identify malingerers) and specific (i.e., able to correctly identify nonmalingerers) that their usefulness will be difficult to challenge.

Fourth Trap: The evaluator focuses on symptoms (Axis I diagnoses) and overlooks the contribution of preexisting and long-standing personality disorders as a source of the alleged distress.

This fourth trap of expedience fails to recognize that personality disorders may cause a person to interpret events in a distorted fashion and then seek to rationalize their own irrational or unreasonable behavior. Courts have begun to recognize the role personality disorders play in the genesis of disputes that give rise to claims of workplace discrimination. In Lowe v. Philadelphia Newspapers, Inc., 594 F. Supp 123, 123-26, (E.D. Pa. 1984), a racial harassment case, the court admitted testimony that due to a personality disorder, the plaintiff was overly sensitive to ordinary criticism. In Sudtelgte v. Reno, 63 Fair Empl. Prac. Cas. (BNA) 1257 (W.D. Mo. Jan. 3, 1994), the court admitted extensive psychiatric testimony concerning the effect of personality disorders on perception. That court held that although the plaintiff subjectively may have felt harassed, her perception was the result of her abnormal sensitivity caused by her personality disorder. In Pascouau v. Martin Marietta, 994 F. Supp. 1276 (D. Colo. 1998), aff’d by 185 F.3d 874 (10th Cir. 1999), the court concluded that “the conduct that could be described as harassment was not based on gender, but rather on Plaintiff’s demonstrated lack of interpersonal skills.” In Newberry v. East Texas State University,161 F.3d 276 (5th Cir. 1998), an ADA case in which the plaintiff suffered from obsessive compulsive personality disorder, the appellate court upheld a finding that the disorder interfered with plaintiff’s relationships with others because of his rigid perfectionism and stringent ethics.

Personality disorders are often the cause of interactions between people that are later alleged to have been imposed on the plaintiff by others. The plaintiff with a personality disorder may not be the mere victim of another, but rather it may be that his or her own irritability, perfectionism or manipulation of others may be the beginning of a chain of events that leads to claim of wrongful termination, harassment, or discrimination.

Role of Psychological Testing
To accurately and ethically assess a claim of emotional distress, testing should be undertaken.23 To perform a successful Rule 35 mental examination, the examiner should:

1) Gather and review relevant records and documentation, including medical records and relevant case documentation;

2) Obtain collateral sources of information if available (e.g., interviewing, or reading depositions of, spouses and coworkers);

3) Conduct testing to include an assessment of a) personality functioning and b) the presence or absence of symptoms (e.g., anxiety, depression, PTSD), developing a reasonable attribution of etiology, or cause of symptoms, if present, or an explanation of why they are absent, and c) the presence or absence of malingering;

4) Provide a report addressing (3) above that includes findings from any empirical research bearing on the nature of the claim in the litigation (e.g., long-term effects of sexual victimization), and

5) Assist in the preparation for examination of opposing counsel’s expert(s), if any.
The following table highlights the basic criteria by which an emotional damages claim is generally assessed by forensic psychologists:

The important overall issue is determining whether the plaintiff has actually experienced the alleged emotional injury or suffering and whether the suffering isattributable to the experience in the workplace. Alternatively, the examiner may determine that the claimed distress is merely an expected and normal reaction to an uncomfortable situation. It is this distinction that the examination process seeks to uncover.

Conclusion
Rule 35 mental examinations are not permitted in every employment case in which a plaintiff claims emotional distress; nor are such examinations always advisable, from a defense perspective. Nevertheless, mental examinations can be a valuable resource in countering a plaintiff’s own testimony regarding suffering and its cause, by examining other life stressors that may be the cause of emotional distress, and in otherwise providing insight to a plaintiff’s emotional distress claims.

If a mental examination is ordered, it is necessary to review the evaluative criteria in advance. Remember, an emotional injury could result from an emotional disorder, that is, a clinically significant behavioral or psychological syndrome or pattern of interpersonal behavior that occurs in a person and is associated with present distress (a painful symptom or symptoms) or with disability (impairment in one or more important areas of functioning). In contrast, a psychological reaction would not be considered a mental or emotional disorder if the behavior or symptoms were simply an expected reaction to a particular event. For a diagnosis that an individual suffers from a mental disorder to be proper, there must be evidence of a behavioral, psychological, or biological dysfunction in the person that causes impairment in either social or vocational functioning or both. q

1 Restatement (Second) of Torts, §46, comment j (2003).
2 See Fed. R. Civ. P. 35.
3 Schlagenhauf, 379 U.S. at 118–19.
4 See Jansen v. Packaging Corporation of America, 158 F.R.D. 409, 411 (N.D. Ill. 1994) (“There is no question that by advancing such intangible harms as a component of her damages claim Jansen has not only placed her mental condition ‘in controversy’ but has confirmed the existence of ‘good cause’ for [defendant’s] motion”); Smedley v. Capps, Staples, Ward Hastings & Dodson, 820 F. Supp. 1227, 1232 (N.D. Cal. 1993) (finding although plaintiff sought only to present evidence of “normal” emotional distress, the evidence was sufficient to warrant psychological examination).
5 Ali v. Wang Laboratories, Inc., 162 F.R.D. 165, 168 (M.D. Fla. 1995).
6 See, e.g., Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 553 (N.D. Ga. 2001) (“plaintiffs do not place their mental condition in controversy merely by claiming damages for mental anguish or ‘garden variety’ emotional distress”); Ali v. Wang Laboratories, Inc., 162 F.R.D. at 167–68 (“plaintiff’s ‘mental condition’ within the meaning of Rule 35 is not necessarily placed in controversy merely because plaintiff seeks to recover for ‘emotional distress.’”).
7 See Fox v. Gates Corp., 179 F.R.D. 303, 307 (D.C. Colo. 1998); Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995).
8 See Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. at 554; see also Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 323-24 (N.D. Ga. 2000).
9 See Ragge v. MCA/Universal Studios, 165 F.R.D. 605 (C.D. Cal. 1995) (holding plaintiff’s allegation that she “suffered, and continues to suffer” humiliation, embarrassment, and mental and emotional distress places her mental health in controversy); Sarko v. Penn-Dell Directory Co., 170 F.R.D. 127–131 (E.D. Pa. 1997) (holding where plaintiff alleged long-term impact on her mental state, her current mental condition is “really and generally in controversy.”)
10 See Hodges v. Keane, 145 F.R.D. 332, 334 (S.D.N.Y. 1993) (“had plaintiff elected to assert the existence of an ongoing mental illness resulting from defendant’s acts. . . defendants would undoubtedly be entitled to an order under Rule 35(a) allowing them to conduct a psychiatric evaluation”) (emphasis added).
11 Ali, 162 F.R.D. at 168.
12 See Lahr v. Fulbright & Jaworski, LLP, 164 F.R.D. 196, 200 (N.D. Tex. 1995) (reasoning that plaintiff’s intent to prove claim through expert testimony establishes “need to preserve the equal footing of the parties to evaluate the plaintiff’s mental state”).
13 See Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620 (D. Kan. 1999).
14 See, e.g., Abdulwali v. Washington Metro Area Transit Authority, 193 F.R.D. 10, 14 (D.D.C. 2000) (excluding counsel and court reporter since “psychological examinations necessitate an unimpeded, one-on-one exchange between the doctor and the patient”); Bertel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 323-24 (N.D. Ga. 2000) (denying request by plaintiff’s counsel to attend mental examination).
15 Hertenstein, 189 F.R.D. at 630. See also Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. at 324 (denying plaintiff’s request to have her attorney present during mental examination).
16 Shirsat, 169 F.R.D. at 70–71.
17 Breda, 1998 WL 811551 at *2.
18 See Greenberg, S. A., & Shuman, D. W., Irreconcilable Conflict Between Therapeutic and Forensic Roles, 28 Professional Psychology: Research & Practice 50-57 (1997). See also Strasburger, L. H., Gutheil, T. G., & Brodsky, A., on Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness, 154 Am. J. Psychiatry 448-456 (1997).
19 Letters of protection are not an acceptable form of payment guarantee. Accepting a “letter of protection,” as may be executed when working with other health care professionals (medical doctors, chiropractors), constitute actions that are cause for discipline of psychologists by the Agency for Health Care Administration’s (AHCA) Board of Psychology [Fla. Stat. §490.009 ¶(1)(j); and Fla. Admin. Code 64B19-17.002¶(1)(j)].
20 Defined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition as the “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.”
21 The Structured Interview of Reported Symptoms [SIRS], the Test of Memory Malingering [TOMM], and the Victoria Symptom Validity Test [VSVT].
22 See Rogers, R., Sewell, K.W., & Goldstein, A., Explanatory Models of Malingering: A Prototypical Analysis, 18 Law and Human Behavior 543-552 (1994); Rogers, R., Harrell, E.H., Liff, C.D., Feigning Neuropsychological Impairment: A Critical Review of Methodological and Clinical Considerations, 13 Clinical Psychological Review 255–274 (1993).
23 From a plaintiff’s perspective, testing should be undertaken under the umbrella of “work product” to protect records from being discovered or disclosed prematurely. If the plaintiff seeks and pays for services directly, the records generated are subject to discovery. If the evaluation is conducted under the work product doctrine, findings adverse to the claim being asserted are not readily discoverable, and the plaintiff’s attorney is in a position to consider whether to move forward on the plaintiff’s behalf.

Alexander D. del Russo is a shareholder at Carlton Fields, P.A., in West Palm Beach. Board certified in both civil trial and business litigation, he concentrates his practice in the defense of labor and employment claims. He obtained his B.A. in psychology and philosophy from Duke University with honors, and his J.D. from the University of Miami School of Law, also with honors.

Jerome H. Poliacoff, Ph.D., was trained at the University of Miami as a child and adult psychologist. He has previously written articles on of clinical and forensic matters and is a frequent speaker at legal and professional seminars. Licensed since 1984, Dr. Poliacoff’s private practice provides clinical and forensic services in Coral Gables and Boca Raton.

This column is submitted on behalf of the Labor and Employment Law Section, Cathy J. Beveridge, chair, and Frank E. Brown, editor.