United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION
FOR RULE 35(a) PSYCHOLOGICAL EXAMINATION (Dkt. NO.
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
the court is the motion of the defendants, Center for Human
Development, Incorporated (“CHD”), and Candy
Pennington (collectively, “Defendants”), to
compel a psychological examination of the plaintiff, Grace
Boadi (“Plaintiff”), pursuant to Federal Rule of
Civil Procedure 35(a) (Dkt. No. 74) (“Defendants'
Rule 35 Motion”). Plaintiff opposes the motion (Dkt.
No. 76). For the reasons set forth below, Defendants'
Rule 35 Motion is DENIED.
sole remaining claim in this case is that Defendants
interfered with her rights under the Family Medical Leave
Act, 29 U.S.C. § 2601 et seq. (“FMLA”) by
terminating her employment in or around April
2013. Insofar as relevant to this motion, the
facts may be briefly summarized follows. In April 2013,
Plaintiff was admitted to Pembroke Hospital, where she was
diagnosed with major depression with psychotic features,
delusional disorder, conversion disorder with seizures, and
anxiety. She remained hospitalized for ten days. During his
mother's hospitalization, Plaintiff's son informed
CHD that Plaintiff was hospitalized and could not work her
scheduled shifts. Plaintiff submitted relevant medical
information to CHD in accordance with CHD's instructions.
On or around April 26, 2013, following Plaintiff's
release from the hospital, she provided CHD with a
Certificate to Return to Work or School, signed by her health
care provider, indicating that she could return to
“full duty” on May 24, 2013. Plaintiff's
employment was purportedly terminated pursuant to CHD's
job abandonment policy because she failed personally to
communicate her absences to her supervisor.
has retained Frederick S. Kadushin, Ph.D., ABN as an expert.
Dr. Kadushin conducted two in-person clinical examinations of
Plaintiff and certain neurological tests. In addition to
examining Plaintiff, Dr. Kadushin also interviewed
Plaintiff's son and reviewed Plaintiff's medical
records, interrogatories, depositions, and other materials
relevant to this case (Dkt. No. 76-1 at 2-3). On the basis of
his interviews with Plaintiff, record review, and other
information, Dr. Kadushin is prepared to opine on the
Was Ms. Boadi capable of understanding and following CHD
company policies and procedures at any time during her
hospital stay in April 2013?
(Id. at 2).
motion to compel a psychological examination of Plaintiff is
premised on the ground that Plaintiff has placed her mental
condition in controversy. Defendants have retained the
services of Dr. Albert M. Drukteinis to perform cognitive
capacity screening and psychological tests that were not
performed by Dr. Kadushin as a basis for an opinion on
Plaintiff's ability to perform the essential functions of
her job in April and May 2013 and thereafter (Dkt. No. 75).
Rule of Civil Procedure 35(a) provides, in pertinent part,
that a court may order “a party whose mental or
physical condition . . . is in controversy to submit to a
physical or mental examination by a suitably licensed or
certified examiner . . . on motion for good cause.” A
party seeking to compel a Rule 35 examination must show that:
(1) the party to be examined has placed his or her mental
condition “in controversy;” and (2) the party
seeking the examination has done so in good
faith. Schlagenhauf v. Holder, 379 U.S.
104, 119 (1964). Schlagenhauf requires an
affirmative showing by the moving party that the
plaintiff's condition is genuinely in controversy and
that good cause exists for ordering the specific examination
being requested. Id. at 119, 121.
addition to the Schlagenhauf requirements, courts
have identified the following five factors that may warrant
an order requiring a Rule 35 psychological examination:
(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 unusually
severe emotional distress; (4) plaintiff's offer of
expert witness testimony to support a claim of emotional
distress; and/or (5) plaintiff's concession that his or
her mental condition is “in controversy.”
Flores-Febus v. MVM, Inc., 299 F.R.D. 338,
340 (D.P.R. 2014) (citing Turner v. Imperial Stores,
161 F.R.D. 89, 95 (S.D. Cal. 1995) (compiling cases)).
Defendants' Rule 35 Motion fails at the first stage of