United States District Court, D. Maryland, Southern Division
J.F. AND D.F., MINORS, et al., Plaintiffs,
CORRECT CARE SOLUTIONS, LLC, et al., Defendants.
J. HAZEL, UNITED STATES DISTRICT JUDGE.
case arises from the death of Melissa Mae Benton, which
occurred while she was at the St. Mary's County Detention
Center on October 13. 2013. Plaintiffs. Ms. Benton's
parents and three children, assert multiple claims alleging
that the Defendants were negligent in their care of Ms.
Benton, and that Plaintiffs have suffered, among other
damages, "mental anguish. [and] emotional pain and
suffering" resulting from the death of Ms. Benton. ECF
No. 4 at 28. 31. In the course of discovery. Defendants
sought to have Plaintiffs Craig Benton and Brittany Fleshman
(Ms. Benton"s father and daughter, respectively)
examined by a mental health professional regarding their
claims of mental and emotional damages. ECF No. 58 at 3.
Plaintiffs refused to consent to these examinations, and the
Defendants filed a Motion for Rule 35 Mental Examination of
Plaintiffs Craig Benton and Brittany Fleshman. ECF No. 58.
Plaintiffs have opposed the Motion. ECF No. 60. and the
Defendants have replied, ECF No. 62. No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons. Defendants" Motion is granted.
STANDARD OF REVIEW
Rule of Civil Procedure 35(a) allows a court to "order a
party whose mental or physical condition ... is in
controversy to submit to a . . . mental examination by a
suitably licensed or certified examiner." Where a
plaintiff asserts a claim or damages of "emotional
distress." a mental examination is not necessarily
warranted, depending on the degree of severity of the alleged
distress. See Ricks v. Abbott Labs., 198 F.R.D).
647. 649 (D. Md. 2001). Where a plaintiff asserts
distress.' the "trier of fact.. . does not need
help understanding the ordinary grief, anxiety, anger, and
frustration that any person feels when something bad
occurs." Id. See also Machie v. Manger, No.
09-2196. 2012 WL 2092814. at *6 (D. Md. June 7. 2012). In
these instances, "the likely benefit of a mental
examination is minimal" but the burden of a mental
examination "involves an intrusion upon the privacy of
the subject" and is substantial. Id. On the
other hand. "[w]hen emotional distress is unusually
severe or alleged in clinical terms, or when another party
intends to offer expert testimony about the distress, the
testimony of an expert would help the trier of fact
understand the nature, severity, and characteristics of the
emotional distress." Id.
determine whether an allegation of emotional distress puts a
plaintiffs mental condition "in controversy."
courts look to whether:
(1) the plaintiff has asserted a specific cause of action for
intentional or negligent infliction of emotional distress;
(2) the plaintiff has claimed unusually severe emotional
distress: (3) the plaintiff has alleged a specific type of
disorder or other psychiatric injury; (4) the plaintiff has
offered her own expert testimony to supplement her claim of
emotional distress; or (5) the plaintiff concedes that her
medical condition is "in controversy" pursuant to
Machie, 2012 WL 2092814. at *6 (citing Turner v.
Imperial Stores, 161 F.R.D. 89. 95 (S.D. Cal. 1995)).
argue that Craig Benton and Brittany Fleshman"s mental
conditions are not in controversy because they only assert
"garden-variety" emotional distress that any family
member would feel upon the death of a child or parent. ECF
No. 60 at 5. Defendants, on the other hand, urge that Benton
and Fleshman describe "extreme grief in their
interrogatory responses, and that the severity of this
emotional distress places their mental conditions in
controversy, warranting a Rule 35(a) examination.
discussed above, a plaintiffs mental condition is in
controversy if the plaintiff claims "'unusually
severe emotional distress" beyond the sort of
“garden-variety'" distress that a lay juror
could readily assess. In determining whether emotional
distress meets this threshold, other courts have considered
whether a plaintiff claimed to have suffered physical effects
from the emotional distress, whether the plaintiff sought
medical treatment, and whether a medical professional
suggested or prescribed medication. See Ortiz v.
Poller, No. 08-1326. 2010 WL 796960. at *4 (E.D. Cal.
Mar. 5. 2010) (ordering a mental examination where plaintiff
suffered "anxiety, depression" and physical
symptoms including "clenching of her jaw . . . high
blood pressure. migraine headaches, and chest pains"):
Kob v. Cty. of Marin, No. 07-2211. 2009 WL 3706820.
at *3 (N.D. Cal. Nov. 3. 2009) (ordering mental examination
where plaintiff sought psychological counseling, took
medication for depression, and suffered physical ailments):
Javeed v. Covenant Med. Ctr, . Inc., 218 F.R.D. 178.
179-80 (N.D. Iowa 2001) (ordering a mental examination where
plaintiff "sought treatment and considered
antidepressant medication" and experienced physical
symptoms including "weight loss and weight gain,
insomnia, rashes, diarrhea, and some panic attacks").
Mr. Benton and Ms. Fleshman's interrogatory responses and
depositions indicate that as a result of their emotional
anguish they sought medical attention, were prescribed
antidepressant medications, and suffered physical symptoms.
In his Answers to Defendants" Interrogatories. ECF No.
59-1. Mr. Benton claims that he suffered "extreme
grief." which has resulted in "a variety of
physical manifestations . . . including trouble sleeping and
fatigue." Id., at 3. He was "examined and
treated for depression by his primary care provider" and
was prescribed "antidepressant medication."
Id. at 4. In his deposition, he clarifies that he
was prescribed Amitriptyiine, an antidepressant, which he was
taking from 2014 until at least the time of his deposition in
November 2017. ECF No. 59-2 at 2.
Answers to Defendants* Interrogatories. ECF No. 59-3. Ms.
Fleshman claims that she suffered "extreme grief."
which has resulted in "a variety of physical
manifestations . . . including her inability to sleep at
night." Id., at 3. She "spoke with her
primary care doctor" who "diagnosed her with
anxiety and depression" and "prescribed Paxil to
address these issues." Id. at 4. In her
deposition. Ms. Fleshman explained that Paxil is an
antidepressant but that she only took it approximately once,
because she did not like how it made her feel. ECF No. 59-4
at 2. Additionally. Ms. Fleshman regularly saw a mental
health professional for approximately "once a week"
for approximately a year in 2004. Id.
emotional distress suffered by Mr. Benton and Ms. Fleshman is
more than the "garden-variety" distress that lay
persons are able to easily assess. Mr. Benton and Ms.
Fleshman both sought help from medical professionals for
their emotional distress, were diagnosed or treated for
depression (and. in the case of Ms. Fleshman. anxiety), were
prescribed antidepressants, and suffered physical
manifestations of their emotional distress. This qualifies as
a claim of severe emotional distress, putting Mr. Benton and
Ms. Fleshman's mental condition in controversy, and
warranting a Rule 35(a) mental examination. Thus,
Defendants" motion, ECF No. 58, is granted.