Davis v. Zurich American Insurance Co.

Background

Zurich American Insurance Co. sought several psychological assessments of Howard Davis in this age-discrimination and wrongful-termination case. Davis agreed to undergo some mental examination but objected to the Montreal Cognitive Assessment (MoCA) and certain parts of the Cognistat assessment. Davis sought emotional-distress damages based on his alleged termination.

The parties agreed that the MoCA and Cognistat are cognitive examinations, but disagreed about their scope and purpose. Davis relied primarily on the assessments’ official descriptions, which indicated that they screen for cognitive problems and may be used to identify conditions such as mild cognitive impairment, Alzheimer’s disease, or dementia. Zurich argued that the assessments were aimed at identifying possible problems with thinking, problem-solving, memory, or attention, and acknowledged that they might also expose symptoms of Alzheimer’s disease or dementia.

Legal standard

Federal Rule of Civil Procedure 35 allows a court to order a physical or mental examination when a person’s condition is in controversy and the party seeking the examination shows good cause. The party requesting the examination must show both that the condition is relevant to the case and that there is good cause for the particular examination requested. Good cause requires more than showing that an assessment might produce potentially relevant information.

Court’s analysis

Judge Orrick concluded that Zurich had not shown good cause for the MoCA and the challenged portions of the Cognistat. Zurich argued that Davis’s emotional distress might be caused in part by cognitive-health problems and that Davis’s conduct, including mishandling hundreds of pages of documents and having unspecified communication issues, suggested a possible cognitive issue.

The court found that Zurich had not provided sufficient evidence of a potential cognitive impairment. Zurich’s submission relied on an expert’s conclusory opinion but did not disclose the basis or method for that opinion. The court also found that Davis had supplied evidence indicating that the assessments were broader and more invasive than Zurich claimed, while Zurich offered only unsupported assertions to the contrary.

The court noted that Davis had already agreed to a seven-hour general mental-health examination and had been questioned in a deposition about his emotional distress. Zurich therefore had other means to investigate the nature and source of that distress. The court did not decide Davis’s argument that the assessments would violate the California Constitution because it found that Zurich had not demonstrated good cause under Rule 35.

Disposition

The court denied Zurich’s request for an order compelling the MoCA and the specified Cognistat examinations. It did not state that the request was denied with or without prejudice. The order allowed Zurich to conduct appropriate discovery relevant to Davis’s emotional-damages claims, but not to require these cognitive examinations on the evidence presented.