Van Loo v. United States of America

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [10] CINDY VAN LOO, CASE NO. 3:23-cv-05618-DGE [11] Plaintiff, ORDER DENYING RULE 35 12 v. EXAM 13 UNITED STATES OF AMERICA et al., 14 Defendant. [15] 16 I INTRODUCTION 17 Before the Court is a discovery dispute regarding a psychological exam under Federal 18 Rule of Civil Procedure 35. The United States seeks a psychological exam of Deaven Reinoehl, 19 the son of decedent Michael Reinoehl, because Plaintiff claims emotional distress damages.1 20 Following this Court’s discovery dispute procedures, the parties submitted a Joint Discovery 21 Dispute Statement outlining their respective positions. (Dkt. No. 101.) The Court then held a [23] 1 Respectfully, the Court refers to Deaven and Michael Reinoehl by their first names so as to avoid confusion. [24] 1 discovery hearing (see Dkt. No. 103), and asked the parties to supplement their positions with 2 memoranda of law, which they did. (Dkt. Nos. 105, 107). Having considered the parties’ 3 statements, their presentations at the discovery hearing, and their memoranda and supporting 4 declarations, this matter is now ripe for the Court’s resolution. For the reasons that follow, the 5 Court DENIES the request for a Rule 35 exam. 6 II BACKGROUND 7 This case arises from the shooting death of Michael Reinoehl by members of a United 8 States Marshall Service (“USMS”) Violent Offender Taskforce (“VOTF”). (See Dkt. 89.) 9 Michael shot and killed a right-wing protestor in Portland, Oregon, and claimed he did so as an 10 act of self-defense. (Id. at 11.) Plaintiff claims the VOTF had no real plan to apprehend 11 Michael, and instead their vague plan to “take” him resulted in officers immediately killing him 12 upon arrival to his location. (See id. at 13–15, 24–25.) 13 Plaintiff is Michael’s estate, and defendants are the United States, the State of 14 Washington, Pierce County, Municipality of Lakewood, and individual officers. (Id. at 1.) 15 Plaintiff asserts claims for Fourth Amendment violations (via § 1983 or Bivens), and state law 16 negligence and battery (via the Federal Tort Claims Act). (See id. at 29–33.) Previously, this 17 Court denied Defendants’ Motion to Dismiss on all counts except state law battery against 18 Washington—reasoning that more factual development is needed to determine if officers were 19 acting under color of state or federal law. (See Dkt. 77.) 20 In the operative Second Amended Complaint (“SAC”), Plaintiff alleges that as a result of 21 Michael’s death, his two children, Deaven and L.L. (a minor), “suffered permanent and 22 irreparable emotional injury resulting from loss of consortium with their father.” (Dkt. No. 89 at 23 28.) Plaintiff does not however plead a claim for intentional or negligent infliction of emotional [24] 1 distress. (See generally id.) Plaintiff stipulated to a Rule 35 exam of L.L. “out of an abundance 2 of caution to reserve the right to call a treatment provider,” but opposes an exam for Deaven. 3 (Dkt. 101 at 2.) The United States argues Plaintiff has put Deaven’s mental condition “in 4 controversy” and that Deaven suffers more than “garden variety” emotional distress, so there is 5 good cause for a Rule 35 exam. (Id. at 1–2.) Plaintiff disagrees, stating that Deaven’s mental 6 condition is not “in controversy” because he does not allege suffering any more unusual or 7 severe emotional distress than what would ordinarily be expected of a person who loses a parent, 8 and lay testimony is sufficient to describe that harm. (See id. at 2–3.) The parties attempted to 9 resolve this dispute by stipulation but were unable to reach an agreement. Plaintiff was willing 10 to stipulate to not call a treatment provider to testify on Deaven’s behalf nor to admit counseling 11 records for him, but objected to a stipulation from the United States that precluded lay opinions 12 of Deaven’s “physical manifestations” of emotional distress as “vague and overbroad.” (Id. at 1, 13 3.) [14] 15 III DISCUSSION 16 a. Legal Standard 17 Federal Rule of Civil Procedure 35(a) provides that when a party’s mental or physical 18 condition is “in controversy,” the court may order an exam by a licensed professional, but only 19 on “motion for good cause.” Accordingly, Rule 35 requires the movant to establish both of two 20 distinct elements, the “in controversy” and “good cause” requirements. Schlagenhauf v. Holder, [21] 379 U.S. 104 , 118–19 (1964). Still, some courts have found that “the two requirements of Rule 22 35 are merged” because once “the plaintiff has placed his mental state in controversy” that “in 23 turn constitutes good cause for ordering a psychiatric examination under Schlangenhauf.” Ragge [24] 1 v. MCA/Universal Studios, 165 F.R.D. 605, 609 (C.D. Cal. 1995) (quoting Duncan v. Upjohn 2 Co., 155 F.R.D. 23, 25 (D. Conn. 1994)) (internal quotation marks omitted). Good cause has 3 been interpreted to mean “a showing that the examination could adduce specific facts relevant to 4 the cause of action and necessary to the defendant's case” and that “the defendant has no other 5 method to discover relevant information; there is simply no less intrusive means.” Id. (internal 6 quotation marks omitted). 7 The leading case interpreting Federal Rule Civil Procedure 35(a) is Schlagenhauf. That 8 case concerned an auto accident and a motion to subject the driver to a mental and physical 9 exam. 379 U.S. at 107 . The Court observed that the phrase “good cause” in the rule must mean 10 more than “merely showing that the desired materials are relevant” and “there must be greater 11 showing of need under Rules 34 and 35 than under the other discovery rules.” Id. at 118 . The 12 Court called for “discriminating application” of the rule by trial judges. Id. In some cases, the 13 pleadings will be sufficient to determine that an exam is necessary, such as in a negligence action 14 where the plaintiff pleads a mental or physical injury and the existence of that injury is at issue. [15] Id. at 119 . But the court should not order an exam whenever a “general charge of negligence is 16 lodged” or it would become commonplace. Id. at 121–22. 17 While there is little binding precedent from the Ninth Circuit applying Rule 35, district 18 courts considering Rule 35 motions frequently rely on Turner v. Imperial Stores, 161 F.R.D. 89 19 (S.D. Cal.1995). The Turner court sought to determine if invocation of “humiliation, mental 20 anguish, and emotional distress” was sufficient to warrant a Rule 35 mental exam. Id. at 92 . The 21 court conducted an extensive survey of decisions applying Rule 35 and concluded that while 22 courts had gone both ways: 23 [t]he weight of the authority on this issue establishes that in order for a party seeking to compel a psychiatric examination under Rule 35 to establish that the [24] 1 other party's mental condition is ‘in controversy’ within the meaning of the Rule, the moving party must show more than that the party in question has claimed 2 emotional distress. [3] Id. at 97 . Instead, the court identified five factors that should guide the decision of whether to 4 order a mental exam: 5 1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of 6 unusually severe emotional distress; 4) plaintiff's offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff's concession that his or 7 her mental condition is “in controversy” within the meaning of Rule 35(a). [8] Id. at 95 . Though Turner is not binding, it was cited favorably by the Ninth Circuit in Wilson v. 9 Dalton, 24 Fed. Appx. 777 at *2, n.12 (9th Cir. 2001), and has been widely cited by other district 10 courts. See Diunugala v. Dep’t of Conservation, No. CV 16-03530-DSF (JEMx), 2018 WL 11 6137595, at *1 (C.D. Cal. Jan 31, 2018). 12 b. Analysis 13 Analyzed through the lens of the Turner factors, the Court finds that the United States has 14 not met its burden to demonstrate either that Deaven has placed his mental condition “in 15 controversy” or that “good cause” exists for an exam. First, the United States points to the 16 language in the complaint that Deaven “suffered permanent and irreparable emotional injury 17 resulting from loss of consortium with their father” and that “[t]he children were also 18 emotionally harmed by the foreseeable and highly publicized, sensational, and political nature of 19 their father’s violent death.” (See Dkt. No. 105 at 2) (emphasis in original). But the statement in 20 the complaint that Deaven suffers “permanent and irreparable” injury is not offered as a medical 21 fact. Rather, it stands for the common proposition that a child whose parent is shot and killed 22 will suffer in some manner from that loss permanently. As to the “highly publicized, sensational, [24] 1 and political” nature of Michael’s death, none of those adjectives are evidence that Deaven 2 suffers from a mental condition, rather they describe the circumstances of Michael’s death. 3 Next, the United States points to several of Plaintiff’s discovery responses. In an 4 interrogatory about any “physical, emotional, and/or mental injury” suffered “as a result of the 5 Defendant’s actions or inaction on September 3, 2020” Plaintiff stated that Deaven “suffers 6 emotional distress from the loss of the love and companionship of his father and depression.” 7 (Dkt. Nos. 105 at 2; 106-1 at 2–3) (emphasis in original). As the United States notes, depression 8 is a diagnosable condition that can be treated with medication and counseling. (Dkt. No. 105 at 9 3.) As such, it falls within Turner factor two. But the record lacks sufficient evidence that 10 Deaven’s depression is “in controversy” beyond the “garden variety” ordinarily expected of a 11 person who loses a parent in an act of violence. Deaven stated in his deposition that he sought 12 counseling in the past (apparently while his father was alive) and is “look[ing] at [his] options” 13 for future counseling—though he does not state that the counseling resulted from the death of his 14 father or that he is currently receiving counseling.2 (See Dkt. No. 106-2 at 45.) The United [16] 2 The exchange in the deposition transcript reads: 17 Q: Deaven, have you ever been treated at Cascadia health? A: Yeah. Q: What was that for? A: For counseling. Q: And when you say counseling what do you mean? Do you 18 mean therapeutic help or something else? A: Yeah. Q: When you say yeah, yeah what? A: Therapeutic. Q: Therapeutic help? A: Yes. . . . Q: And how long were you getting 19 counseling at Cascadia? A: I don’t remember. Q: Do you remember what ages -- what age you were? A: No. Q: Do you remember if you were living with your dad or with your 20 mom when you were getting this counseling at Cascadia? A: No, I don’t remember. Q: Do you have a plan to seek any therapy now? A: Yeah. Q: Okay. Have you taken any 21 actions on that -- on those plans? A: Kind of. Q: When you say kind of what do you mean? A: There’s not really a counselor that I can really talk to, but I’ve tried to look at 22 my options. Q: Okay. And when you say you have tried to look at your options can you tell me what you mean by that? A: Well, they have asked if I wanted to talk to a 23 counselor, but that -- it wasn't like a real counseling session. Q: Did you go and talk to that counselor? A: Yeah. Q: Okay. And when you say it wasn’t like a real counseling [24] 1 States invokes other “difficult events in [Deaven’s] life” including a custody battle, being 2 unhoused, other shootings, drug use by his parents, and his arrest history—but does not 3 specifically connect those events to the shooting at issue or a depression diagnosis. (See Dkt. 4 Nos. 105 at 4, 106 at 3.) Deaven stated that in the past he “just wanted to blame it on myself” 5 (referring to his dad’s death), but denied still feeling that way. (Dkt. No. 106-2 at 37–38.) Even 6 if Deaven is suffering from depression, Plaintiff has disclaimed an interest in calling at trial a 7 treatment provider or expert or admitting medical records to provide evidence of a mental 8 condition. (Dkt. No. 101 at 3.) Similarly, the United States raises an exchange from Deaven’s 9 deposition in which he acknowledged that he “block[s] out scary things” such as “my dad getting 10 killed.” (Dkt. Nos. 105 at 3, 106-2 at 33.) Even if the Court were to interpret this statement as 11 indicative of memory loss or another diagnosable condition (which seems unlikely), the United 12 States does not allege Plaintiff seeks damages resulting from that memory loss. 13 By contrast, Plaintiff has cited several cases that treated anxiety or depression as “garden 14 variety” emotional distress, arising from factual circumstances similar to those here. In Dawson 15 v. South Correctional Entity, 2021 WL 2012310 , at *2 (W.D. Wash. May 20, 2021), a case about 16 a death of a parent in custody, a court in this district denied defendants’ motion to compel 17 discovery disclosure of psychiatric records, which also turns on the “garden variety” emotional 18 distress standard. The court held that “non-medical emotional harm damages related to stress, 19 loss of enjoyment of life, humiliation, embarrassment, fear, anxiety, and anguish/grief as a result 20 of Defendant's conduct” are garden variety emotional harms that can be assessed by lay 21 testimony. Id. at *3. Defendant’s evidence that the children “struggled in school or seemed [22] session what do you mean? A: They just came and asked a couple questions and that was 23 it. (Dkt. No. 106-2 at 43–45.) [24] 1 depressed” was insufficient, and Plaintiffs had committed to not use medical testimony nor seek 2 medical expenses as damages. Id. 3 In Ruvane v. Elizabeth F, Inc., No. 3:15-CV-00079-JWS-KFM, 2016 WL 6514181 , at *2 4 (D. Alaska Aug. 25, 2016), the court held that the “the ordinary grief, anxiety, anger, and 5 frustration that any person feels when something bad occurs” is a “garden variety” emotional 6 distress not meriting a Rule 35 exam. In that case, plaintiff “expressly eschew[ed] any desire for 7 or effort to obtain relief for specific psychological damages” and instead sought damages for a 8 physical injury to his arm, so his mental condition was not “in controversy.” Id. at *5. In Sims v. 9 Lakeside Sch., No. C06-1412RSM, 2007 WL 5417731 , at *1 (W.D. Wash. Mar. 15, 2007), 10 another ruling on psychotherapist privilege in this district, the court denied a motion to compel 11 because plaintiff sought only “‘garden variety’ emotional distress symptoms, including 12 depression, anger, irritability, sleep loss, discouragement, withdrawal, relived experience and 13 low self esteem.” (emphasis added). Again, plaintiff was not seeking to use an expert to prove 14 emotional distress damages nor making a claim for intentional or negligent infliction of 15 emotional distress. Id. Finally, in Est. of Alvarado by Alvarado v. Tackett, No. 13CV1202-W 16 (JMA), 2015 WL 13375766 , at *3 (S.D. Cal. Feb. 4, 2015), the court denied a Rule 35 motion by 17 the United States in a case involving the shooting death of a parent, because plaintiff had not 18 claimed anything different than the “anguish and grief expected to result” from death of a 19 parent. 20 The cases that the United States cites for support (See Dkt. Nos. 101, 105) involve mental 21 or physical conditions significantly more severe than those at issue here. In Alexander v. City of 22 Bellingham, C07-0868-MAT, 2008 WL 2077970 at *2 (W.D. Wash. May 15, 2008) the court 23 ordered a mental exam for a plaintiff who attempted suicide four times after the incident at issue [24] 1 and suffered severe PTSD. The plaintiff in that case did not respond to the motion, so it was 2 deemed merited, but did plead claims for intentional and negligent infliction of emotional 3 distress. Id. at *1–2. Likewise, in Robertson v. Catholic Community Services of Western 4 Washington, No. C19-1618 RSM 2020 WL 1819842 at *1 (W.D. Wash. April 10, 2020) (internal 5 quotation marks omitted), plaintiff claimed “extreme stress” from workplace discrimination that 6 caused “a downward spiral with depression, anxiety, and alcohol abuse” necessitating 7 professional treatment and missed work. In Brill v. Napolitano, No. cv-09-0421-PSG (RCx), [8] 2010 WL 11509081 at *2 (C.D. Cal. Apr. 26, 2010), the court ordered a mental exam based on 9 several conditions plaintiff asserted in her interrogatory, including: teeth grinding, insomnia, loss 10 of appetite, fatigue, depression/anxiety. The plaintiff claimed damages based on “severe mental 11 and emotional distress,” which was enough for the court to order a Rule 35 mental exam 12 regardless of whether it accepted the “majority” or “minority” approach. Id. at *1–2. 13 Further, in Diunugala, on which the United States relies heavily (see Dkt. No. 105 at 4), 14 the court relied on deposition testimony in which plaintiff stated that the “physical 15 manifestations” of his emotional distress included diabetes, blurry vision, chest pains and high 16 blood pressure. 2018 WL 6137595 at *2. Even still, the Diunugala court did not order a mental 17 exam; it allowed plaintiff to avoid the exam on the condition that it amend its complaint to 18 remove reference to “‘great’ anguish” and “anxiety,” limit his testimony to “garden variety” 19 emotional distress and not any “physical manifestations” or specific disorders arising from the 20 distress, and not offer documentary evidence of severe emotional distress or specific conditions. 21 Id. at *3. At the court’s direction, the parties agreed to a stipulation to be read to the jury 22 outlining these conditions. Id.; (See Dkt. No. 106-3 at 2.) [24] 1 In sum, the Court finds that a Rule 35 mental examination is not warranted. Of the five 2 Turner factors, only the second has arguably been invoked—by Plaintiff’s interrogatory 3 statement as to Deaven’s “depression.” But in reviewing the caselaw on this subject, the Court 4 finds that reference to “depression,” without more, does not establish more than “garden variety” 5 emotional distress, and Plaintiff has not alleged that Deaven suffers an “unusually severe” 6 condition within the meaning of Turner factor three. As previously noted, Plaintiff does not 7 make a claim for intentional or negligent emotional distress, and does not plan to call an expert 8 to testify about an emotional condition. Accordingly, the balance of the Turner factors weighs 9 against ordering a Rule 35 exam. The United States has not shown that Deaven’s mental 10 condition is “in controversy,” and good cause for an exam does not exist because on this record 11 the Court does not believe that the exam is necessary to Defendant’s case. [12] 13 IV CONCLUSION 14 For the foregoing reasons, the United States’ request for a Rule 35 mental examination is 15 DENIED. 16 DATED this 21st day of October 2024. [17] a [18] David G. Estudillo 19 United States District Judge