Federal Judiciary

Motion for FRCP 35 Mental Examination and Motion to Compel Production of Records Denied

By Michael Smith

Jackson v. U.S. Kids Golf, LLC, 2008 WL 2078777(E.D.Tex. May 15, 2008) (NO. 4:06CV237)
Judge: Don Bush
Holding: Motion for FRCP 35 Mental Examination and Motion to Compel Production of Records DENIED
Defendant asked the Court to order a mental examination of Plaintiff Charmane Jackson pursuant to FRCP 35 and to order the production of her medical records. Defendant claimed that it was entitled to this discovery because Plaintiff had put her mental condition in issue by seeking loss of consortium damages as well as damages for mental anguish. 
Judge Bush held that the defendant had not shown the requisite "good cause" for a mental examination.  With respect to the request for the Plaintiff's psychologist's records regarding marriage counseling, Judge Bush noted that to waive the physician-patient privilege in Texas, a plaintiff must rely upon the mental condition as part of the claim or defense. Tex.R. Evid. 509(e)(4) & 510(d)(5). Thus, the question was whether Plaintiff had made her mental condition part of her claims. "In Texas," Judge Bush wrote, "a routine allegation of mental anguish or emotional distress-especially in a personal injury action-generally does not place the party's mental condition in controversy. Coates v. Whittington, 758 S.W.2d 749, 753 (Tex.1988). To waive privilege, ?[t]he plaintiff must assert mental injury that exceeds the common emotional reaction to an injury or loss.? Id."  Judge Bush held that the plaintiff had not made any extraordinary claims of mental anguish - her reaction to her son's death did not exceed what would be a common allegation regarding such an event, nor were the records requested even relevant to to the claimed mental anguish, as they were marriage counseling records.  In addition, "at this time" Judge Bush declined to find that the plaintiff had  placed her mental condition into controversy such that the marriage counselor's pre-incident records should be disclosed. Of course if the plaintiff attempted to rely on the psychologist's testimony, the records would become discoverable, he noted.

Full post as published by Eastern District of Texas Federal Court Practice on June 11, 2008 (boomark / email).