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IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-741
2001 MT 269
OPINION AND ORDER
GARY WINSLOW,
Petitioner,
v.
MONTANA RAIL LINK, INC., a
Montana corporation,
Respondent.
¶1 Gary Winslow has petitioned this Court for a writ of supervisory control. He seeks to
have this Court reverse a District Court ruling requiring that he submit to a psychiatric
evaluation pursuant to Rule 35, M.R.Civ.P. He contends that the District Court erred in
finding that the "good cause" requirement of Rule 35 was satisfied by the fact that
Winslow has asserted an independent claim for intentional or negligent infliction of
emotional distress. He further contends that the District Court erred in ordering a Rule 35
examination without setting forth the "manner, conditions and scope of the examination"
in advance of the examination itself.
¶2 This petition raises issues as to the proper scope of discovery of medical information
through psychiatric examination. Discovery of potentially-privileged material presents
unique issues which we have, under certain circumstances, found sufficient to invoke
original jurisdiction.
¶3 In Jaap v. District Court (1981), 191 Mont. 319, 623 P.2d 1389, we granted a writ
because the District Court had exceeded its authority by allowing defendant's attorney to
privately interview plaintiff's physicians-a method of discovery not authorized by the
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Montana Rules of Civil Procedure.
¶4 In Burlington Northern v. District Court (1989), 239 Mont. 207, 779 P.2d 885, we
again addressed a District Court order compelling discovery of potentially-privileged
material. The District Court had ordered the defendant to produce certain work product
and had enjoined the defendant from engaging in further discovery until it complied with
the discovery order. The defendant argued that if it were to disclose privileged material,
"the harm is complete and cannot be rectified on appeal." Burlington Northern, 239 Mont.
at 211, 779 P.2d at 888. We agreed that the potential harm could not be remedied 1by
appeal. We exercised supervisory control and ultimately vacated that part of the District
Court order enjoining the defendant from engaging in further discovery.
¶5 In State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 822 P.2d 91, we
accepted jurisdiction over a petition for supervisory control in a Rule 35 discovery dispute.
Mapes contended that his claim was for physical injuries from exposure to toxic fumes. As
a result of the injury to his central nervous system, he claimed that he had measurable
cognitive deficit. He maintained, however, that he was not seeking damages for any
psychological injury and thus argued that there was no good cause for discovery of his
psychological records. While recognizing that interlocutory review of discovery orders is
not favored, State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 634 P.2d 648,
we noted: "Defendant's right to discover plaintiff's mental or physical condition is based
on fairness where that mental or physical condition is placed in issue by a claim for
damages. However, defendant's need for that discovery must be balanced by plaintiff's
constitutional right to privacy found in Mont. Const. Art. II, Sec. 10." Mapes, 250 Mont. at
529, 822 P.2d at 94. We held that confidentiality of communications between a patient and
his psychologist can be waived like any other privilege. "When a party claims damages for
physical or mental injury, he or she places the extent of that physical or mental injury at
issue and waives his or her statutory right to confidentiality to the extent that it is
necessary for a defendant to discover whether plaintiff's current medical or physical
condition is the result of some other cause." Mapes, 250 Mont. at 530, 822 P.2d at 94.
¶6 Similar to Mapes, the present case presents issues as to good cause for and scope of
discovery of potentially-privileged medical information under Rule 35(a), M.R.Civ.P. The
question of whether the court must define the conditions, manner and scope of a Rule 35
examination before the examination is conducted is one of first impression and is of
statewide importance. If, as alleged, the District Court is proceeding under a mistake of
law as to the scope of such discovery, the harm cannot be remedied by way of appeal.
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Accordingly, we accept jurisdiction over this matter.
Discussion
¶7 Winslow concedes that, in pleading an independent claim for negligent or intentional
infliction of emotional distress, he has placed his mental condition in controversy.
However, he contends that he has not sought psychological care nor does he plan to retain
an expert witness to testify on the subject. He posits that it is, therefore, not necessary for
Montana Rail Link (MRL) to present expert testimony to meet Winslow's proof. He
argues further that, given his suspicions that the examination might be improperly used to
assess his credibility, the court erred in concluding that the mere filing of a claim for
infliction of emotional distress is sufficient to satisfy the good cause requirement of Rule
35, M.R.Civ.P.
¶8 Rule 35, M.R.Civ.P., provides:
Rule 35. Physical and mental examination of persons.
Rule 35(a). Order for examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the custody or under the
legal control of a party, is in controversy, the court in which the action is pending
may order the party to submit to a physical or mental examination by a suitably
licensed or certified examiner or to produce for examination the person in the party's
custody or legal control. The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.
Rule 35(b). Report of examiner. (1) If requested by the party against whom an
order is made under Rule 35(a) or the person examined, the party causing the
examination to be made shall deliver to the requesting party a copy of the detailed
written report of the examiner setting out the examiner's findings, including results
of all tests made, diagnosis and conclusions, together with like reports of all earlier
examinations of the same condition. After delivery the party causing the
examination shall be entitled upon request to receive from the party against whom
the order is made a like report of any examination, previously or thereafter made, of
the same condition, unless, in the case of a report of examination of a person not a
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party, the party shows that the party is unable to obtain it. The court on motion may
make an order against a party requiring delivery of a report on such terms as are
just, and if an examiner fails or refuses to make a report the court may exclude the
examiner's testimony if offered at the trial.
(2) Waiver of privilege. Either by (1) requesting and obtaining a report of the
examination ordered as provided herein, or by taking the deposition of the examiner,
or by (2) commencing an action or asserting a defense which places in issue the
mental or physical condition of a party to the action, the party examined or a party
to the action waives any privilege the party may have in that action or any other
action involving the same controversy, regarding the testimony of every person who
has treated, prescribed, consulted, or examined or may thereafter treat, consult,
prescribe or examine, such party in respect to the same mental or physical condition;
but such waiver shall not apply to any treatment, consultation, prescription or
examination for any mental or physical condition not related to the pending action.
Upon motion seasonably made, and upon notice and for good cause shown, the
court in which the action is pending, may make an order prohibiting the introduction
in evidence of any such portion of the medical record of any person as may not be
relevant to the issues in the pending action.
(3) This subdivision applies to examinations made by agreement of the parties,
unless the agreement expressly provides otherwise. This subdivision does not
preclude discovery of a report of an examiner or the taking of a deposition of the
examiner in accordance with the provisions of any other rule.
¶9 The District Court relied upon the United States Supreme Court decision in
Schlangenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152, in
concluding that the pleadings themselves can establish good cause for ordering a mental
examination. Schlangenhauf is the seminal decision concerning Rule 35 examinations.
Rule 35(a), Fed.R.Civ.P., is the same as Rule 35(a), M.R.Civ.P. We adopted the
Schlangenhauf standard for Rule 35, M.R.Civ.P., examinations in Marriage of Binsfield
(1995), 269 Mont. 336, 888 P.2d 889. In Schlangenhauf, the Supreme Court stated:
Of course, there are situations where the pleadings alone are sufficient to meet these
requirements. A plaintiff in a negligence action who asserts mental or physical
injury, c.f. Sibbach v. Wilson & Co., supra, places that mental or physical injury
clearly in controversy and provides the defendant with good cause for an
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examination to determine the existence and extent of such asserted injury.
Schlangenhauf, 379 U.S. at 119.
¶10 Winslow relies on Neal v. Siegel-Robert, Inc. (E.D. Mo. 1996), 171 F.R.D. 264, for
the proposition that the mere fact that a plaintiff has requested emotional distress damages
does not necessarily mean that a party has placed his mental capacity in controversy. As
the District Court observed, however, the plaintiff in Neal had referred to emotional
distress only as a component of general damages. In contrast, Winslow, in count three of
his amended complaint, has made a specific claim for negligent or intentional infliction of
emotional distress.
¶11 Winslow also relies on our decision in Binsfield. Binsfield, however, is
distinguishable. Binsfield was a dissolution proceeding in which the husband contended
that the wife was not mentally capable, and thus he requested an independent medical
examination. The Court determined that the husband had failed to demonstrate the wife's
mental condition was "in controversy" and thus a Rule 35, M.R.Civ.P., examination was
not warranted. Unlike the present case, there was no independent "Sacco" tort claim
involved.
¶12 In Sacco v. High Country Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d
411, we held that an independent cause of action for negligent infliction of emotional
distress will arise under circumstances where serious or severe emotional distress to the
plaintiff was the reasonably foreseeable consequence of the defendant's negligent act or
omissions. Liability only arises when the emotional distress is "extreme." We adopted that
same standard for intentional infliction of emotional distress claims and reaffirmed the
requirement that the emotional distress suffered must be "serious or severe." Sacco, 271
Mont. at 237, 896 P.2d at 428. In deciding Sacco, we reasoned that with "today's more
advanced state of medical science, technology and testing techniques," there is better
capability to determine whether a party truly suffers emotional distress, thus helping avoid
a floodgate of emotional distress claims. Sacco, 271 Mont. at 233, 896 P.2d at 425.
¶13 Thus, given that Winslow has made an independent "Sacco" claim for infliction of
emotional distress, and given our specific reliance in Sacco on the advanced state of
medical testing techniques, we conclude that the pleading of the independent tort claim is
sufficient to satisfy the "good cause" requirement in Rule 35, M.R.Civ.P. Accordingly, we
affirm the District Court's determination that good cause has been shown for ordering a
mental evaluation.
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¶14 Winslow also contends that the court erred in not setting forth the manner, condition
and scope of the examination prior to the examination. It is at this conjuncture that
Winslow's suspicions about the purpose of the examination come into play. Winslow is
correct that Rule 35, M.R.Civ.P., does require that the court "shall specify the time, place,
manner, conditions and scope of the examination and the person or persons by whom it is
to be made." He is also correct that the court's present orders do not comply with this
requirement of specificity. In addressing Winslow's concerns about the scope of the
intended examination, the District Court held:
At this point, Dr. Stratford has not conducted the examination and the Court has no
way of knowing what his proposed testimony will be. Furthermore, the Court does
not know what evidence Winslow will offer in support of his claim for the negligent
or intentional infliction of emotional distress. Thus, it is premature for the Court to
determine the parameters of Dr. Stratford's testimony.
¶15 The District Court essentially adopted an "after the fact" approach in which it would
address the parameters of the testimony once it had been presented. This approach,
however, is not consonant with the spirit of the Rule. Recognizing the difficulties of ruling
on anticipated testimony, the Rule nonetheless requires that the court, at least in a general
sense, define the scope of the examination. For example, in Mapes, we limited the scope
of discovery of plaintiff's psychological records by allowing defendant to depose the
psychologist to determine whether, in his opinion, plaintiff suffered from any cognitive
deficit caused by any factor, other than the conditions of his employment, as alleged in his
complaint. Further, as to any claims of psychological damage, the defendant could also
inquire as to whether plaintiff suffered from any emotional or psychological problems
resulting from any factor other than the causes alleged in his complaint.
¶16 In the present case, MRL posits that Dr. Stratford should be allowed to determine the
existence and extent of the alleged emotional distress injuries. We note that MRL's
proposed scope of the examination is consistent with the United States Supreme Court's
holding in Schlangenhauf wherein the Court approved Rule 35 examinations "to determine
the existence and extent of such asserted injury." Schlangenhauf, 379 U.S. at 119. As in
Mapes, Winslow can also be examined to determine whether he suffers from any
emotional or mental problems which are the result of factors other than the causes alleged
in his complaint. In addressing Winslow's asserted emotional distress injuries, Dr.
Stratford will presumably arrive at an opinion as to the existence and extent of the injuries.
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Although an examining physician may not invade the province of the jury by testifying
that a claimant is or is not truthful, to the extent that the physician's findings confirm or
conflict with the claimant's assertions, his or her testimony may assist the jury in weighing
the claimant's credibility. Benjamin v. Torgerson, 1999 MT 216, 295 Mont. 528, 985 P.2d
734.
¶17 This matter is remanded to the District Court for entry of an order, consistent with the
above discussion of Rule 35, M.R.Civ.P., specifying the "time, place, manner, conditions
and scope" of the examination.
¶18 MRL's request for a stay of District Court proceedings pending resolution of the
petition for writ of supervisory control is denied as moot.
DATED this 18th day of December, 2001.
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE
Justice Jim Regnier did not participate in the above matter.
Justice Terry N. Trieweiler dissenting.
¶19 I concur with the majority's conclusion that this is an appropriate case for the exercise
of supervisory control. I also concur with the Court's conclusion that the District Court's
order lacked the specificity regarding the parameters for a psychiatric exam that is
required by Rule 35, M.R.Civ.P.
¶20 I dissent from the majority's conclusion that Rule 35, as interpreted by the United
States Supreme Court, in Schlagenhauf v. Holder (1964), 379 U.S. 104, authorizes a
mental examination in this case.
¶21 I agree with the interpretation and application of Schlagenhauf by the Supreme Court
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of Texas in Coates v. Whittington (Tex. 1988), 758 S.W.2d 749. In Coates, the plaintiff
claimed damages for mental anguish she experienced as a result of physical injuries she
alleged were caused by the defendant's product. The trial court ordered that she undergo a
mental examination pursuant to a Texas rule of civil procedure derived from the same
federal Rule 35 which was interpreted by the United States Supreme Court in
Schlagenhauf. However, the Texas Supreme Court concluded after considering
Schlagenhauf that the trial court abused its discretion by ordering Coates to submit to a
mental examination. The Texas court gave the following explanation for its decision:
Drackett maintains that Coates' mental condition is in controversy because she has
pleaded for mental anguish damages. In support of its position, Drackett relies on
Schlagenhauf, 379 U.S. at 119, 85 S.Ct. at 243, where the United States Supreme
Court stated:
A plaintiff in a negligence action who asserts mental or physical injury . . . places
that mental or physical injury in controversy and provides the defendant with good
cause for an examination to determine the existence and extent of such asserted
injury.
In Schlagenhauf, however, the court also warned that sweeping examinations of a
party who has not affirmatively put his mental condition in issue may not be
routinely ordered simply because the party brings a personal injury action and
general negligence is alleged. Id. at 121, 85 S.Ct. at 244. Further, federal courts that
have applied Rule 35 in light of Schlagenhauf have consistently distinguished
"mental injury" that warrants a psychiatric evaluation from emotional distress that
accompanies personal injury. Compare Anson v. Fickel, 110 F.R.D. 184, 186 (N.D.
Ind. 1986) (mental condition is in controversy when plaintiff claims mental
problems that required confinement in a psychiatric hospital) and Love v.
Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298-99 (E.D.Pa. 1983) (mental
condition is in controversy when plaintiff claims severe emotional distress and seeks
to prove damages through testimony of psychiatrist) with Cody v. Marriott Corp.,
103 F.R.D. 421, 423 (D.Mass. 1984) (mental condition is not in controversy when
plaintiff claims emotional distress and does not claim a psychiatric disorder
requiring psychiatric or psychological counseling).
In her suit against Drackett, Mrs. Coates asserts that she has suffered the type of
emotional distress that typically accompanies a severe second degree burn and
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permanent scarring. In her deposition, she described her mental anguish as feelings
of embarrassment and self-consciousness because the scar is ugly and noticeable in
public. She is not alleging a permanent mental injury nor any deep seated emotional
disturbance or psychiatric problem. Mrs. Coates' mental anguish claim is, therefore,
for the emotional pain, torment, and suffering that a plaintiff who has been burned
and scarred would experience in all reasonable probability. Compare Moore v.
Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). Further, the record reflects that Mrs.
Coates has not sought any type of psychiatric treatment as a result of the incident
and, equally important, does not propose to offer psychiatric or psychological
testimony to prove her mental anguish at trial.
To permit Drackett to compel a mental examination because Mrs. Coates has
claimed mental anguish damages would open the door to involuntary mental
examinations in virtually every personal injury suit. Rule 167a was not intended to
authorize sweeping probes into a plaintiff's psychological past simply because the
plaintiff has been injured and seeks damages for mental anguish as a result of the
injury. Plaintiffs should not be subjected to public revelations of the most personal
aspects of their private lives just because they seek compensation for mental anguish
associated with an injury.
Coates, 758 S.W.2d at 751-52.
¶22 In Schlagenhauf, the Supreme Court concluded that where a person alleges "mental
injury," that person's mental condition is in controversy and Rule 35 is applicable.
Schlagenhauf, 379 U.S. at 119. However, there is no mental injury alleged in this case.
"Injury" infers a diagnosis which requires expert opinion and treatment. Plaintiff intends to
call no expert witness for purposes of providing a diagnosis and has received no treatment
for his mental distress. As in Coates, Winslow alleges mental distress that typically
accompanies loss of a job and the inability to find comparable employment. When asked
to explain his emotional distress claim, he testified that he is irritable and upset because of
lost income, loss of insurance coverage, the inability to make house payments and his
inability to find other employment. It doesn't take an expert to evaluate his claim for
damages based on these experiences. The reasonableness of his claim is well within the
comprehension of the average juror.
¶23 The common sense approach taken by the Texas Supreme Court is especially
preferable to the majority's opinion in light of the strict constitutional right to privacy
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found in the Montana Constitution at Article II, Section 10, and our observation in State ex
rel. Mapes v. District Court (1991), 250 Mont. 524, 532, 822 P.2d 91, 96, that the
"psychiatric examination is particularly invasive of an individual's right to privacy. It is an
extraordinary form of discovery which is permitted under Rule 35 only when the plaintiff's
mental condition is in controversy, and then only when good cause has been
shown." (Emphasis added.)
¶24 I would conclude that where damages for mental distress are claimed without an
allegation of "mental injury," good cause has not been established for the invasive process
of a psychiatric examination.
¶25 The majority infers there is a difference between ordinary claims of mental distress
and direct actions for damages based on mental distress when "serious" mental distress
must be proven. However, that distinction is irrelevant pursuant to Schlagenhauf and its
progeny as pointed out by the Texas Supreme Court. The issue is whether mental injury
has been alleged, not whether the mental distress claimed is minor or serious.
¶26 The reasoning in the majority opinion opens a Pandora's Box for the invasion of
individual privacy in the average personal injury case. For example, where mental distress
is alleged as a result of physical injury and because of the severity of the physical injury
the mental distress will also necessarily be severe, does the majority opinion mean that
psychiatric examinations of the plaintiff are now authorized even though no independent
claim for intentional or negligent infliction of emotional distress has been alleged? I don't
think that's the majority's intention but it would be hard to argue with that application of
its decision. If that is in fact how its decision is to be applied, the potential for harassment
of injured victims who seek compensation for injuries caused by the negligence of others
is only limited by the defendant's litigation budget.
¶27 The majority opinion is a bad result not warranted by any reasonable interpretation of
the "good cause" requirement found at Rule 35, M.R.Civ.P. For these reasons, I dissent
from the majority's conclusion that based on the facts in this case the District Court did not
abuse its discretion when it authorized a mental examination of the petitioner, Gary
Winslow.
/S/ TERRY N. TRIEWEILER
Justice Patricia O. Cotter joins in the foregoing dissent.
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/S/ PATRICIA COTTER
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