Tenth Circuit Discusses Trial Court Decision Ordering Rule 35 Medical Exam; Determines No Abuse of Discretion

Per Herrera v. Lufkin Industries, --- F.3d ----, 2007 WL 63663 (10th Cir. Jan. 4, 2007):

Lufkin has a service center in Casper, Wyoming, where Lufkin employs between six and ten people. Herrera began working at Lufkin's Casper service center in 1990 as a sales representative and later became the center's field supervisor. . . . Herrera alleged that Moore created a racially hostile work environment for Herrera by frequently referring to him as "the Mexican" or "that f***ing Mexican" and by making other derogatory remarks toward Herrera because he was Hispanic. . . . Herrera then filed a complaint with the EEOC, alleging Lufkin had discriminated against him because he is Hispanic. . . . Herrera challenges a discovery ruling requiring Herrera to undergo a psychological examination pursuant to Fed.R.Civ.P. 35. Having jurisdiction to consider this appeal under 28 U.S.C. § 1291, we AFFIRM the district court's decisions addressing discovery. . . .

Unlike other discovery mechanisms, such as interrogatories or depositions, which a party can invoke on his own, Rule 35 requires the party seeking to conduct a medical examination first to obtain the district court's permission. See Schlagenhauf v. Holder, 379 U.S. 104, 117-18 (1964). To obtain a court's order for an independent medical examination ("IME"), the party seeking the exam must show that "the mental or physical condition" of the party who is to be examined "is in controversy," and that there is "good cause" for the examination. See id. at 118-19. Notwithstanding Rule 35's requirements, however, "physical and mental examinations are usually arranged by stipulation of the attorneys, with the rule standing as a compulsory sanction that helps to produce stipulations." 8A Charles Alan Wright et al., Federal Practice and Procedure § 2234 (2d ed.1994). And "[p]laintiffs who voluntarily submit to an examination by a physician selected by defendant waive their right to insist upon a [Rule 35] motion for an order of examination." Id. In this case, the parties agreed to a stipulated discovery schedule which provided that Lufkin could obtain an IME of Herrera, pursuant to Rule 35(a), within a specific twenty-day time period. When Lufkin requested dates on which Herrera was available for the IME, however, Herrera failed to respond. Lufkin inquired a second time, after January 20, 2004, but this time Herrera responded that the time to conduct the IME had expired. On February 9, 2004, Lufkin filed a Rule 37 motion seeking to compel discovery of Herrera's mental condition. The magistrate judge granted that motion, ordering Herrera to submit to an IME. The district court upheld the magistrate judge's decision. In doing so, the district court did not abuse its discretion.

On appeal, as before the district court, Herrera argues that, despite the parties' stipulated discovery schedule, Lufkin still had to file a successful Rule 35 motion before the district court could compel Herrera to undergo an IME. Even assuming for purposes of this appeal that this is true, however, Lufkin sufficiently complied with Rule 35's requirements in this case. In its reply addressing the motion to compel the IME, Lufkin did specifically request an order under Rule 35 permitting it to conduct an examination. And both the magistrate judge's ruling granting the Rule 37 motion to compel discovery, as well as the district court's decision upholding that ruling, addressed Rule 35's requirements for ordering a mental examination, determining that Herrera's physical and mental condition was "in controversy" and that Lufkin had shown "good cause" for the exam. See Schlagenhauf, 379 U.S. at 118-19. Moreover, Herrera himself "stipulate[d] that his mental condition is in controversy." Further, both the magistrate judge and the district court addressed the scope of the IME.

For these reasons, we cannot say that the district court, in requiring Herrera to undergo a mental examination, abused its discretion; that is, the district court did not make "a clear error of judgment or exceeded the bounds of permissible choice in the circumstances," Norton v. City of Marietta, 432 F.3d 1145, 1156 (10th Cir.2005) (quotation omitted). Our conclusion is bolstered by the Supreme Court's indication that Rule 35 is "to be accorded a broad and liberal treatment, to effectuate [the civil procedure rules'] purpose that civil trials in the federal courts no longer need be carried on in the dark." Schlagenhauf, 379 U.S. at 114-15 (citation, quotation omitted).