1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REGINALD SMITH, Case No. 20-cv-08534-JST (KAW)

8 Plaintiff,

ORDER RE 10/7/2022 DISCOVERY

9 v. LETTER

10 OFFICE OF THE ALAMEDA COUNTY [Discovery Letter No. 1] PUBLIC DEFENDER, et al., 11 Re: Dkt. No. 68 Defendants. 12 13 On October 7, 2022, the parties filed a joint discovery letter regarding whether Plaintiff 14 should be required to undergo an expert psychological examination. (Discovery Letter at 1, Dkt. 15 No. 68.) Plaintiff was involuntarily committed between 2007 and 2020 under the Sexually 16 Violent Predator’s Act (“SVPA”) and seeks damages from his incarceration including emotional 17 distress. (Id. at 2, 3.) 18 Federal Rule of Civil Procedure 35(a)(1) states, in relevant part, that “[t]he court where the 19 action is pending may order a party whose mental or physical condition . . . is in controversy to 20 submit to a physical or mental examination by a suitably licensed certified examiner.” “A mental 21 condition is ‘in controversy’ when it is itself the subject of the litigation.” Gavin v. Hilton 22 Worldwide, Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013). Thus, “[c]ourts will order plaintiffs to 23 undergo mental examinations where the cases involve, in addition to a claim of emotional distress, 24 one or more of the following: (1) a cause of action for intentional or negligent infliction of 25 emotional distress; (2) an allegation of specific mental or psychiatric injury or disorder; (3) a claim 26 of unusually severe emotional distress; (4) the plaintiff’s offer of expert testimony to support a 27 claim of emotional distress; and/or (5) the plaintiff’s concession that his or her mental condition is 1 (N.D. Cal. 2020 (internal quotation omitted)). 2 The Court finds that Defendant has established good cause for an independent mental 3 examination. Here, Plaintiff seeks substantial damages of at least $1 million per year during his 4 incarceration under the SVPA, including for specific psychological injuries such as depression, 5 trauma, fear for his life and safety, panic attacks, sleeplessness, and memory loss. (Discovery 6 Letter at 2, 5; see also Snipes, 334 F.R.D. at 670 “(an independent mental examination is also 7 warranted where the plaintiff identifies specific injuries caused by the defendant’s conduct.”) 8 Further, Defendant raises an issue of causation, as Plaintiff also testified his emotional distress 9 was “a result of broken familial relationships, remorse for the [underage] victims of his qualifying 10 conviction and their parents, [and] his initial incarceration in prison for fourteen years prior to his 11 SVP detainment[.]” (Discovery Letter at 2.) Thus, a psychological examination is warranted. See 12 Snipes, 334 F.R.D. at 671 (finding good cause where there was an issue of “causation, and an 13 independent mental examination is necessary to assess whether the government caused [the 14 plaintiff]’s claimed emotional distress”). 15 In opposition, Plaintiff argues that he is only seeking to recover emotional distress during 16 his incarceration under the SVPA, and not for any ongoing emotional distress. (Discovery Letter 17 at 3.) In support, Plaintiff relies on Goomar v. Centennial Life Insurance Co., which found that 18 “[r]etrospective expert testimony regarding the existence or onset of a mental illness is 19 inadmissible speculation” under Daubert. 855 F. Supp. 319, 326 (S.D. Cal. 1994). Goomar is 20 readily distinguishable. There, the psychiatrists testified that the plaintiff suffered from a 21 psychotic condition between 1980 and 1984, causing him to molest four patients. Id. The 22 psychiatrists, however, did not see the plaintiff until 1992 and 1993. Id. Moreover, although both 23 psychiatrists sought to opine on the plaintiff’s condition based on his self-reporting, they also 24 admitted that the plaintiff’s present psychotic condition rendered his statements unreliable and 25 self-serving. Id. Under such circumstances, the opinions were speculative and inadmissible. 26 In contrast, Plaintiff’s injuries are allegedly the result of his incarceration through 2020. 27 Moreover, while Plaintiff states that he is not seeking damages for ongoing emotional distress, he 1 (emphasis added).) The fact that Plaintiff does not seek damages from ongoing emotional distress 2 does not automatically render an independent examination speculative; rather, given both the 3 relative recency of Plaintiff’s incarceration and the ongoing nature of his emotional distress, the 4 concerns of speculation and unreliability raised in Goomar are not at issue here. C.f. Hodges v. 5 Keane, 145 F.R.D. 332, 334 (S.D.N.Y. 1993) (“Had plaintiff elected to assert the existence of an 6 ongoing mental illness resulting from defendants’ acts or omissions, defendants would 7 undoubtedly be entitled to an order under Rule 35(a) allowing them to conduct a psychiatric 8 evaluation to determine the existence of such a condition.”); Benchmaster, Inc. v. Kawaelde, 107 9 F.R.D. 752, 754 (E.D. Mich. 1985) (denying examination concerning the plaintiff’s mental 10 condition between 1972 and 1982 where the plaintiff alleged that he lost his free will and was 11 unable to act voluntarily during this time only). To find otherwise would permit a party to avoid 12 an independent mental examination based solely on the time period during which emotional 13 distress damages are sought. See Snipes, 334 F.R.D. at 672 (“Snipes has offered to limit her claim 14 for emotional distress damages to the time period up until May 2019. However, it is unclear how 15 a unilateral time limit chosen by Snipes overcomes the fact that she claims the events at issue in 16 this lawsuit are the only cause of stress in her life while at the same time not allowing the 17 government to conduct discovery to ascertain if those assertions are true.”); Nguyen v. Qualcomm 18 Inc., No. 09-1925-MMA (WVG), 2013 U.S. Dist. LEXIS 93826, at *21 (S.D. Cal. July 3, 2013) 19 (“the Court is apprehensive of encouraging a practice whereby a party attempts to thwart a request 20 for an IME by asserting that they are no longer suffering from emotional distress and that therefore 21 an IME is inappropriate to determine past suffering”). 22 Accordingly, the Court ORDERS Plaintiff to undergo an independent mental examination. 23 The parties shall meet and confer as to the timing and scope of the examination, as well as the 24 identity of the examiner.1 25 1 Plaintiff asks that any exam “be delayed until after summary judgment to ensure Defendants’ 26 claim that it is relevant to damages is genuine,” as Plaintiff contends that the only reason Defendants request a mental examination is “to compel [Plaintiff] to speak as much as possible for 27 as long as possible with the hope that they’ll be able to pull some quotes out of context to support 1 This order disposes of Docket No. 68. 2 IT IS SO ORDERED. 3 Dated: November 3, 2022 . 4 Ae A. a le 5 United States Magistrate Judge 6 7 8 9 10 11 12

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19 20 21 22 23 24 25 26 27 2g || Judgment. The parties are, of course, free to agree to delay the exam until after summary judgment.