Nguyen v. Wal-Mart Associates, Inc.

Background

Brian Nguyen worked for Wal-Mart Associates, Inc. from approximately 1994 until February 14, 2022. He went on medical leave in October 2021, and Walmart ended his employment before he could return. Nguyen asserted eight causes of action, including disability discrimination, failure to accommodate, failure to engage in the interactive process, claims under the Family and Medical Leave Act, wrongful termination in violation of public policy, and waiting-time penalties. The provided opinion text does not display the full descriptions of all eight causes of action.

In seven causes of action, Nguyen alleged that Walmart caused him continuing emotional distress, humiliation, mental anguish, embarrassment, and physical symptoms. At his deposition, he identified sadness, anxiety, lost sleep, headaches, weight loss and gain, tension, loss of self-confidence and self-esteem, depression, and withdrawal. His sister testified that he suffered a nervous breakdown after leaving Walmart and, in her view, experienced serious depression and sadness. Nguyen sought general emotional-distress damages and future lost earnings.

Rule 35 Examination

Walmart sought an independent medical examination, or IME, to investigate Nguyen’s alleged emotional distress. Under Federal Rule of Civil Procedure 35, a court may order a suitably licensed or certified examiner to examine a party when the party’s physical or mental condition is in controversy and good cause exists.

Nguyen did not claim intentional or negligent infliction of emotional distress, did not plan to use expert testimony about his mental condition, and did not stipulate that his mental condition was in controversy. He also did not claim that his anxiety amounted to a formal diagnosis. However, the court found that his alleged loss of sleep, headaches, and weight loss or gain were physical manifestations of emotional harm that went beyond ordinary or “garden-variety” emotional distress. Those allegations were enough to place his mental and physical condition in controversy.

Good Cause

The court considered whether Walmart could obtain the information by other means, whether Nguyen intended to use expert testimony, whether the examination was relevant, and whether Nguyen claimed continuing emotional distress. The first factor weighed against good cause because Nguyen agreed not to use expert testimony to prove emotional distress, and Walmart had already taken depositions of Nguyen and his sister.

The court found that the other factors strongly supported good cause. The examination was relevant to Nguyen’s claim of severe, continuing emotional distress and highly probative of his claim that he remained unable to work because of distress allegedly caused by Walmart’s conduct. Denying the examination could have impaired Walmart’s ability to prepare its defense.

Timeliness

Nguyen argued that the request was untimely because fact discovery had closed. The court explained that mental examinations are not neatly classified as either fact or expert discovery and may be allowed after fact discovery closes and before expert discovery closes when there is no bad faith or established prejudice.

The court stated that Walmart perhaps should have sought the examination earlier, but Nguyen did not contend that Walmart intentionally delayed the request. The court also found that Nguyen’s brief assertion of prejudice did not establish actual prejudice. Summary judgment was still pending, trial was not scheduled until February 2025, and there was no indication that the examination would delay the trial.

Disposition and Examination Terms

The court granted Walmart’s request to compel a Rule 35 examination of Nguyen. Nguyen must submit to a mental examination by Dr. Judy Ho at a location, date, and time agreed upon by the parties, no later than 30 days from the date of the order. The examination may last no more than seven hours, excluding breaks.

The examination may include a clinical interview; questions about Nguyen’s personal, occupational, educational, religious, drug and alcohol, legal, family, and marital history; his psychiatric complaints, treatment, diagnoses, and future prognosis; the physical and psychological injuries or conditions he claims resulted from the events in the lawsuit; a formal mental-status examination; and other subjects Dr. Ho considers necessary. Only Dr. Ho and Nguyen may be present at each appointment, and audio recording is permitted. The examination results may be used in this litigation and for lawful purposes outside the litigation to the extent permitted by law. The parties may seek permission to file examination-related materials under seal.