G.S. v. Quest Diagnostics Clinical Laboratories, Inc.

Background

G.S. alleges that she was sexually assaulted on two occasions by one of Quest Diagnostics Clinical Laboratories, Inc.’s phlebotomists while visiting a Quest patient service center in Marina, California. She claims that she suffered mental trauma and severe emotional distress. In her complaint and October 2022 initial disclosures, she stated that she sought compensatory damages of at least $500,000.

Quest requested a mental examination under Federal Rule of Civil Procedure 35. Quest first raised the possibility of the examination on January 25, 2024, after the original expert-disclosure and expert-discovery deadlines had passed. The parties could not agree on the request and filed a joint discovery letter. The court held a hearing on May 16, 2024.

Legal standard

Rule 35 allows a court to order a physical or mental examination while a case is pending. The party seeking the examination must affirmatively show both that the opposing party’s mental condition is in controversy and that there is good cause for the examination. Good-cause considerations can include whether the information could be obtained in other ways, whether the plaintiff plans to use expert testimony, whether the information is relevant, and whether the plaintiff claims continuing emotional distress.

Discussion

The court found no dispute that G.S.’s mental condition was in controversy because she claimed continuing emotional distress. The court also found that Quest had technically shown good cause. In particular, Quest argued that the examination was needed to understand possible other causes of G.S.’s claimed mental injuries, including an alleged prior sexual assault.

The court criticized Quest’s delay in requesting the examination and stated that the delay could be viewed as equivalent to bad faith. The court nevertheless declined to make a bad-faith finding and concluded that good cause existed.

The court considered potential prejudice to G.S. and determined that extending discovery deadlines to accommodate the examination and a later deposition would reduce some of that prejudice. The court noted that allowing the examination could cause substantial prejudice if the examiner later testified at trial, because the examination was requested after expert discovery closed. But the court held that this concern did not prevent the examination because Rule 35 does not require the examining physician to testify or to be designated as an expert.

Limits on the examination

The court allowed Dr. Marc Cohen to conduct the examination. It rejected G.S.’s objection that the examiner should be a woman, and it found that her objection to Dr. Cohen was not valid. The court allowed the use of a certified Spanish interpreter from a neutral agency rather than requiring a Spanish-speaking examiner.

The court prohibited the examination from being recorded by video, audio, or any other means. Quest had not adequately explained why it wanted to record the examination. The court left the specific tests to be performed to the examiner’s professional judgment.

Disposition

The court granted Quest’s request for a Rule 35 mental examination, subject to the stated limitations. Quest must provide G.S. with Dr. Cohen’s report as soon as it receives the report and must make Dr. Cohen available for deposition as soon as practicable. The parties were ordered to meet and confer within seven days about the examination’s date, time, and location.