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Dibrito v. Harrisburg Area Community College

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


March 12, 2010

LYNETTE A. DIBRITO, PLAINTIFF
v.
HARRISBURG AREA COMMUNITY COLLEGE, DEFENDANT

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 12th day of March, 2010, upon consideration of defendant's request (see Doc. 25) that the court order plaintiff to submit to an independent psychiatric evaluation*fn1 pursuant to Rule 35 of the Federal Rules of Civil Procedure, see FED. R. CIV. P. 35(a)(1) (providing that "[t]he court . . . may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner"), and upon further consideration of plaintiff's brief (Doc. 24) opposing an independent psychiatric evaluation, and it appearing that plaintiff argues that she has merely presented a "garden variety" emotional distress allegation, and that under Bowen v. Parking Authority of the City of Camden, 214 F.R.D. 188 (D.N.J. 2003) and Turner v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995), such an allegation is insufficient to place her mental condition "in controversy" for purposes of Rule 35(a),*fn2 and it further appearing that defendant contends that Bowen and Turner are distinguishable from the instant case,*fn3 and the court concluding that plaintiff's mental condition is "in controversy" within the meaning of Rule 35(a) in the instant case, see FED. R. CIV. P. 35(a)(1), and the court further concluding that good cause exists for plaintiff to submit to the requested evaluation,*fn4 and that notice has been afforded to all parties, see FED. R. CIV. P. 35(a)(2), it is hereby ORDERED that:

1. Defendant's brief (Doc. 25) is CONSTRUED as a motion for an examination under FED. R. CIV. P. 35, and is GRANTED as so construed.

2. Plaintiff shall submit to an examination performed by Dr. Larry A. Rotenberg,*fn5 or by another suitably licensed psychiatrist to whom the parties agree. The examination shall take place at a time and place to be determined by agreement of the parties.

3. The examination shall be limited, in general terms, to the following issues: (a) whether, and the extent to which, plaintiff is currently suffering from emotional distress or mental injury;*fn6 (b) whether plaintiff's alleged emotional distress is attributable to defendant's conduct or to other factors (including pre-existing mental health issues); and (c) to what extent any of plaintiff's alleged emotional distress which is attributable to defendant has exacerbated plaintiff's pre-existing physical or mental conditions.


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