United States District Court, S.D. Ohio, Eastern Division
IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,
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
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
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,
Plaintiffs Memorandum in Opposition (ECF No. 59), and
Defendant's Reply (ECF No. 60). For the reasons that
follow, the Court DENIES Defendant's
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
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.)
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
(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
Court disagrees with DuPont's assessment of Dr.
Margulis' Expert Report and its assessment of this
Court's application of the relevant law.
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
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)
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:'"