Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re E. I. Du Pont De Nemours and Company C-8 Personal Injury Litigation

United States District Court, S.D. Ohio, Eastern Division

July 26, 2019

IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,
v.
E. I. du Pont de Nemours and Company, No. 218-cv-00136 This document relates to: Angela Swartz and Teddy Swartz

          Elizabeth Preston Deavers Magistrate Judge.

          DISCOVERY ORDER NO. 13-A DEFENDANT'S MOTION FOR RECONSIDERATION OF DISCOVERY ORDER NO. 13

          EDMUND A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion for Reconsideration of the Court's Order Denying a Rule 35 Medical Examination of Plaintiff (ECF Nos. 36, 38, 42[1]), Plaintiffs Memorandum in Opposition (ECF No. 59), and Defendant's Reply (ECF No. 60). For the reasons that follow, the Court DENIES Defendant's Motion.

         I.

         Defendant DuPont de Nemours and Company moves this Court to reconsider Discovery Order No. ("DO") 13, in which the Court denied DuPont's request for an independent mental examination of Plaintiff Angela Swartz. As support for its request, DuPont states:

[In the briefing the Court considered in DO 13, ] Mrs. Swartz argued that two of the factors determining whether a Rule 35 mental exam was warranted were when a plaintiff made "an allegation of a specific mental or psychiatric injury or disorder" or "intends to offer specific expert testimony in support of [a] claim for emotional distress damages[.]" Id. She then stated that both of these factors were "not present in the case at bar[.]" Id.
That statement was not true.
[Since DO 13 was issued], flagrantly contradicting her representations to the Court, Mrs. Swartz submitted an expert report supporting her claim of emotional distress. See Expert Report of Dr. Vitaly Margulis ("Margulis Report") [ECF No. 27-1] at 5-6. Among other things, Dr. Margulis opined that Mrs. Swartz's emotional distress was severe, ongoing, and arose from a specific mental injury.

(Def.'s Mot. for Reconsideration at 1, ECF No. 42.)

         With regard to the law applicable to this issue, DuPont posits:

Per DO 13, a plaintiffs mental condition is in controversy when "any of the following factors exist in the case":
(1) a tort claim is asserted for intentional infliction or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder is made; (3) a claim of unusually severe emotional distress is made; (4) plaintiff intends to offer expert testimony in support of a claim for emotional distress damages; and/or (5) plaintiff concedes that her mental health condition is in controversy within the meaning of Rule 35.

Id. at 3 (citing DO 13 at 5-6); see also Fox v. Gates Corp., 179 F.R.D. 303, 307 (D. Colo. 1998) (courts and DuPont refer to these enumerated factors as the "Fox factors").

         The Court disagrees with DuPont's assessment of Dr. Margulis' Expert Report and its assessment of this Court's application of the relevant law.

         Initially, the Court corrects Defendant's misunderstanding of the application of the law in DO 13. That is, the Court did not hold that the existence of one of the enumerated Fox factors places a plaintiffs mental condition "in controversy." The portion of the sentence from which DuPont quotes, taken in isolation, could be interpreted in such a way. However, when taken in context of the sentence and opinion, it is clear that the existence of any one or more of the Fox factors may cause a court to find that it is more likely a plaintiff has placed her mental condition "in controversy" as that phrase is defined under Rule 35. This Court stated:

The majority of courts, including numerous district courts in the Sixth Circuit, determine whether the claimed emotional distress is "garden variety" by evaluating whether any of the following factors exist in the case Courts find it more likely that emotional distress claims are not garden variety when the plaintiff offers expert testimony to support her claim for emotional distress damages.
As shown above, none of the factors courts utilize to determine whether the claimed emotional distress is "garden variety" are present in this case. Further, the Court finds that there are no other facts or circumstances present in this case that would cause this Court to find that Mrs. Swartz's emotional distress allegations are anything more than those that any individual diagnosed with cancer would claim.

(DO 13 at 5, 12, 13) (emphasis added)

         Reading the Court's decision on Rule 35 in its entirety shows that the analysis entails an evaluation of whether any of the enumerated Fox factors exist, or whether any other relevant factors are present. A court then, in its discretion, may find the type of "special circumstances" necessary to order a Rule 35 examination. T.C. exrel. S.C. v. Metro. Gov't of Nashville &Davidson Cty., 106 Fed.R.Evid. Serv. (Callaghan) 1060, 2018 WL 3348728, at *10 (M.D. Tenn. July 9, 2018) (stating that "the majority of courts will look for allegations of special circumstances that distinguish a case from more run-of-the-mill claims Courts may find those special circumstances present when" some or all of the five Fox factors are present) (emphasis added). "Thus, even when the good cause and in controversy requirements of Rule 35 have been met, Ht is still within the sound discretion of the trial court as to whether to order anexamination:'" ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.