United States District Court, M.D. Pennsylvania
C. CARLSON United States Magistrate Judge
case involves allegations of battery, negligence and
negligent hiring and supervision in connection with an
episode of alleged sexual abuse which occurred in 2007 when
the then-minor plaintiff, R.D., was participating in a
camping excursion conducted by the defendant. In the course
of this excursion it is alleged that a counselor employed by
Shohola, identified as N.S., sexually assaulted the
plaintiff, and may have had inappropriate sexual contact with
two other minors who shared a tent with the plaintiff and
defendant's employee during this excursion. R.D., who is
now approximately 20 years old, has sued Shohola Camp Ground,
alleging negligence, negligent hiring and supervision and
battery. (Doc. 1.) A critical component of the damages
claimed by R.D. are damages relating to psychological harm
and emotional distress. (Id.) Given the nature of
the injuries claimed by R.D. the defendant is seeking a
psychiatric examination of R.D., pursuant to Rule 35 of the
Federal Rules of Civil Procedure.
March 7, 2017, the matter was referred to the undersigned for
pretrial management and resolution of discovery disputes.
Since that time we have addressed, and are in the process of
addressing, numerous discovery disputes between these
parties. One of these discovery issues relates to a request
by the plaintiff to have a health care professional retained
by the plaintiff present as an observer at the Rule 35
psychiatric examination of R.D. The parties have submitted
letter briefs relating to this procedural aspect of the Rule
35 examination of R.D., (Docs. 53, 54, and 59.), and this
question is, therefore, ripe for resolution.
that adequate safeguards already exist to ensure both the
emotional well-being of R.D. during this process and the
integrity of this evaluation process, the plaintiff's
request for an observer in attendance at this examination
will be denied.
previously discussed the legal benchmarks which govern the
presence of observers at psychiatric examinations conducted
pursuant to Rule 35 of the Federal Rules of Civil Procedure
in our decision in M.S. v. Cedar Bridge
Acad., No. 1:08-CV-2271, 2011 WL 1838885, at *1
(M.D. Pa. May 13, 2011). In M.S. we observed that Rule
35 (a) of the Federal Rules of Civil Procedure governs
psychiatric examinations of parties in federal civil
litigation and that the court, in the exercise of its
discretion, may specify the time, place, manner, conditions
and scope of any examination. Rule 35(a)(2)(B), Fed. R. Civ.
Pro. By specifying that the court may determine “the
time, place, manner, conditions, and scope of the
examination, as well as the person or persons who will
perform it, ” Fed.R.Civ.P. 35(a)(2)(B), Rule 35
consigns the procedures to be used in conducting these
examinations to the sound discretion of the court, an
approach that is consistent with the general guidance of the
rules which provide that issues relating to the scope of
discovery rest in the sound discretion of the Court.
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90
(3d Cir. 1987). A court's decisions regarding the conduct
of discovery, therefore, will be disturbed only upon a
showing of an abuse of discretion. Marroquin-Manriquez v.
I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This
far-reaching discretion extends to rulings by United States
Magistrate Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly
broad discretion in resolving discovery disputes. See
Farmers & Merchs. Nat'l Bank v. San Clemente Fin.
Group Sec., Inc., 174 F.R.D. 572, 585 (D.N.J.1997). When
a magistrate judge's decision involves a discretionary
[discovery] matter . . ., “courts in this district have
determined that the clearly erroneous standard implicitly
becomes an abuse of discretion standard.” Saldi v.
Paul Revere Life Ins. Co., 224 F.R.D. 169, 174
(E.D.Pa.2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that
standard, a magistrate judge's discovery ruling “is
entitled to great deference and is reversible only for abuse
of discretion.” Kresefky v. Panasonic Commc'ns
and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see
also Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D.
42, 44-45 (N.D.N.Y.1999) (holding that discovery rulings are
reviewed under abuse of discretion standard rather than de
novo standard); EEOC v. Mr. Gold, Inc., 223 F.R.D.
100, 102 (E.D.N.Y.2004) (holding that a magistrate
judge's resolution of discovery disputes deserves
substantial deference and should be reversed only if there is
an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1
(D.N.J. Sept. 17, 2010).
case we are asked to exercise our discretion and regulate a
procedural aspect of the psychiatric examination of R.D., by
ascertaining who may attend this examination, and
specifically by addressing the request of plaintiff's
counsel to have a health care professional observer attend
the examination. In considering this question, we note that
Rule 35 does not, by its terms, specify who may attend a
psychiatric examination undertaken in connection with civil
litigation. While the rule is silent on this issue, the
courts have spoken, providing useful guidance to us in the
exercise of our discretion in this field.
majority rule adopted by the federal courts is that the court
may, and often should, exclude third-party observers,
including counsel, from medical or psychiatric evaluations.
See, e.g., Calderon v. Reederei-Claus-Peter
Offen GmbH & Co., 258 F.R.D. 523, 526-7(S.D. Fla.
2009)(“the majority of federal courts have held that
third parties should be excluded absent special
circumstances. See, e.g., Hertenstein v.
Kimberly Home Health Care, Inc., 189 F.R.D. 620, 628-34
(D.Kan.1999); McKitis v. Defazio, 187 F.R.D. 225,
228 (D.Md.1999); Ali v. Wang Laboratories, Inc., 162
F.R.D. 165, 168 (M.D.Fla.1995); Tomlin v. Holecek,
150 F.R.D. 628, 631 (D.Minn.1993); Wheat v.
Biesecker, 125 F.R.D. 479, 480 (N.D.Ind.1989);
Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543,
546 (S.D.N.Y.1978).”) In reaching this conclusion, most
courts agree that:
[T]he need for effective psychiatric examinations militates
against allowing an observer who could potentially distract
the examining psychiatrist and examine thereby compromising
the results of the examination. Moreover, the presence of the
observer interjects an adversarial, partisan atmosphere into
what should be otherwise a wholly objective inquiry. See
Jacob v. Chaplin, 625 N.E.2d 486, 492 (Ind.App.1993).
Additionally, it is recognized that psychological
examinations necessitate an unimpeded, one-on-one exchange
between the doctor and the patient. Tomlin v. Holecek et
al., 150 F.R.D. 628, 632 (D.Minn.1993); Cline v.
Firestone, 118 F.R.D. 588, 589 (S.D.W.Va.1988);
Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543,
544 (S.D.N.Y.1978); Swift v. Swift, 64 F.R.D. 440,
443 (E.D.N.Y.1974). The court finds that the presence of an
observer would lend a degree of artificiality to the
examination that would be inconsistent with the applicable
Shirsat v. Mutual Pharmaceutical Co., Inc., 169
F.R.D. 68, 71 (E.D.Pa.1996).Thus, in this regard
“‘the party seeking the attendance of a third
party at the examination bears the burden of showing
“good cause” for such attendance pursuant to Rule
26(c).' Reyes v. City of New York, No. 00 Civ.
2300(SHS), 2000 WL 1528239, at *3 (S.D.N.Y. Oct.16, 2000)
[and], ‘most courts start with a presumption against
the presence of third persons, and then go on to consider
whether special circumstances have been demonstrated in ...