The opinion of the court was delivered by: (Magistrate Judge Carlson)
In this diversity lawsuit we are asked to address two related questions regarding who may, and who must, participate in a Rule 35 psychiatric examination of a child-party. For the reasons set forth below, we conclude that counsel for the Plaintiff who is being examined may not participate in, or attend, the examination. We also find that the parents of the minor child plaintiff may not be compelled to participate in this psychiatric evaluation.
II. Statement of Facts and of The Case
The pertinent facts in this case can be simply stated: the Plaintiff, M.S., is the minor child of Michelle M.S. and D.S., all of whom reside in Connecticut. In the summer of 2007, M.S.'s parents resolved to have M.S. attend the Cedar Bridge Military Academy Summer Camp operated on a Boy Scouts facility near Dillsburg, Pennsylvania, after learning that Cedar Bridge held itself out as a "private, faith-based, youth-serving organization dedicated to providing young adults with an intense, rewarding experience through military and high adventure training," and being informed that, "the mission of Cedar Bridge is to foster a love of Corps, Country and God by providing a vehicle for the application of leadership, strengthening character, teaching responsibility, improving self-discipline, developing an understanding of the role of our military in today's society, and building informed and productive citizens." (Doc 32, ¶¶ 21 and 22.)
Having entrusted their child to the Defendants' care based upon these representations, from July 14, 2007, through July 28, 2007, M.S. attended the Cedar Bridge Military Academy Summer Camp. During this two-week period, it is alleged that M.S. was "physically assaulted by camp employees, staff and counselors, verbally abused and threatened by camp employees, staff and counselors, made to eat his own vomit, threatened with having to clean up human feces with his hands, labeled 'Puke Bucket' by staff and called that name by other campers and counselors and made to listen to sexually explicit 'stories' told by camp employees and counselors and terrorized by camp employees or counselors." (Id., ¶25.)
On December 19, 2008, the Plaintiff, M.S., through his parents acting on his behalf, filed a civil complaint arising out of this alleged incident,(Doc.1), which he subsequently amended on January 20, 2010. (Doc. 32.) In his complaint the Plaintiff, M.S., brings causes of action grounded in negligence, negligent hiring, and intentional infliction of emotional distress against the Defendants. (Id.) The Plaintiff seeks compensatory and punitive damages as compensation for the injuries he allegedly suffered at the hands of the Defendants while he attended this summer camp program. (Id.)
This case is now proceeding to discovery, with a psychiatric evaluation of M.S. scheduled by the Defendants. In connection with this upcoming evaluation, the parties have sought the intervention of the Court to address two questions: First, may Plaintiff's counsel attend, directly observe or participate in the psychiatric evaluation? Second, as part of this evaluation, must M.S.'s parents , who bring this action on behalf of M.S. as his parents and natural guardians, submit to interviews by the psychiatrist? The parties have submitted comprehensive letter briefs on these two issues and these questions are now ripe for resolution.
For the reasons set forth below, we conclude: (1) that Plaintiff's counsel may not attend this evaluation; and (2) that the Plaintiff's parents may not be compelled to participate in this process by submitting to interviews by the examining psychiatrist.
Rule 35 (a) of the Federal Rules of Civil Procedure governs psychiatric examinations of parties in federal civil litigation, and provides in pertinent part as follows:
(a) Order for an Examination.
(1) In General. The court where the action is pending 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. The court has the same authority to order a party to produce ...