Mahil v. Option Care Enterprises, Inc. ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 HARJIT MAHIL, Case No.: 20cv1559-BEN-MDD 11 Plaintiff, ORDER: 12 v. (1) DENYING DEFENDANT'S MOTION TO COMPEL 13 OPTION CARE ENTERPRISES, INDEPENDENT MEDICAL INC., 14 EXAMINATION OF PLAINTIFF; Defendant. AND 15 (2) AMENDING THE 16 SCHEDULING ORDER 17 [ECF No. 17] 18 19 20 On April 9, 2021, Option Care Enterprises, Inc. (“Defendant”) moved to 21 compel the independent mental examination (“IME”) of Harjit Mahil 22 (“Plaintiff”) by Dr. Francine Kulick pursuant to Federal Rule of Civil 23 Procedure 35(a). (ECF No. 17). Plaintiff opposes, arguing that Defendant “is 24 belatedly trying to backdoor a retained expert that it should have designated 25 in its expert disclosures under the guise of a ‘rebuttal expert.’” (Id. at 7). 26 Plaintiff also contends that her mental health condition is not in controversy 1 there are two issues before the Court: (1) whether an IME should be 2 compelled; and (2) whether Dr. Kulick is a proper rebuttal expert, and if not, 3 whether her opinion should be excluded. For the reasons stated herein, the 4 Court DENIES Defendant’s motion to compel an IME, finds that Dr. Kulick 5 is not a proper rebuttal expert, and sua sponte amends the Scheduling Order 6 to permit Dr. Kulick to be retained as an initial expert. 7 I. RELEVANT BACKGROUND 8 On August 12, 2020, Plaintiff filed a complaint alleging that her 9 employer, Defendant, “unfairly compete[s]” with its competitors by engaging 10 in “systematic wage and hour violations and operates with minimal staff . . . 11 who are pushed to work significant amounts of overtime, without duty-free 12 meal and rest breaks, and to remain on call after hours on weekends.” (ECF 13 No. 1 ¶1). Plaintiff also alleges that Defendant “has a practice of terminating 14 employees who require time off related to their medical conditions and 15 disabilities.” (Id.). Specifically, Plaintiff alleges that as a pharmacist she 16 was “forced to work to the brink of exhaustion and then terminated after she 17 complained of wage and hour violations and required medical leave to treat 18 the generalized anxiety disorder she suffered from, which was aggravated as 19 a result of [Defendant’s] unlawful demands.” (Id.). As a result of Defendant’s 20 actions, “Plaintiff has suffered, and continues to suffer, humiliation, 21 embarrassment, emotional distress, and mental anguish . . . .” (Id. ¶ 68). 22 She seeks monetary damages for emotional distress. (Id. ¶ A). 23 On November 25, 2020, Plaintiff served her initial disclosures. (ECF 24 No. 17-2, Exhibit F). She disclosed five treating physicians—Dr. Kaylan 25 Graham, Dr. Preeti Mathur, April L’Heureux, LMFT, Dr. Brandon Niemeier, 26 and Dr. Cara Niemeier—as persons likely to have discoverable information. 1 On December 3, 2020, the Court issued a Scheduling Order. (ECF No. 2 12). All expert disclosures required by Federal Rule of Civil Procedure 3 26(a)(2) were to be served on all parties by February 26, 2021. (Id. at 2). Any 4 contradictory or rebuttal disclosures within the meaning of Federal Rule of 5 Civil Procedure 26(a)(2)(D)(ii) were to be disclosed by March 30, 2021. (Id.). 6 On February 11, 2021, Plaintiff testified at her deposition that she 7 “temporarily suffered from severe emotional distress” from January 10, 2020 8 to November 2020. (ECF No. 17 at 11). “After months of intensive treatment 9 and group therapy, [Plaintiff’s] mental condition improved significantly, and 10 she voluntarily ended her treatment in November 2020.” (Id.). Accordingly, 11 Plaintiff “is no longer suffering from extreme emotional distress.” (Id.). 12 Plaintiff contends that she still suffers from “continuing ‘garden variety’ 13 emotional distress.” (Id. at 8). 14 On February 26, 2021, Plaintiff timely disclosed seven of her treating 15 physicians as non-retained experts—Dr. Kaylan Graham, Dr. Preeti Mathur, 16 April L’Heureux, LMFT, Joyce Prince, LMFT, Dr. Brandon Niemeier, Dr. 17 Cara Niemeier, and Tatiana Baroni—that will “testify about Plaintiff’s 18 mental disability, emotional distress, and the treatment she received for her 19 mental disability and emotional distress as a result of the claims alleged in 20 this action.” (ECF No. 17-3). These non-retained experts will not provide a 21 written report. (ECF No. 17 at 20-21). Defendant did not serve any expert 22 disclosures on Plaintiff. (See ECF No. 17-2, Exhibit H). On March 30, 2021, 23 Defendant designated Dr. Kulick as a rebuttal expert witness to testify on 24 Plaintiff’s alleged medical and mental health condition, claims of emotional 25 distress, and the treatment, diagnoses, and conclusions regarding Plaintiff by 26 Plaintiff’s non-retained experts. (ECF No. 17-3, Exhibit D). 1 (ECF No. 17 at 25). Plaintiff has also “provided over 500 pages of her 2 confidential medical records, with more forthcoming in response to 3 [Defendant’s] subpoenas.” (Id.). Also, Defendant plans to notice the 4 depositions of Plaintiff’s treating doctors. (Id.). 5 II. INDEPENDENT MENTAL EXAMINATION 6 The Court first considers whether Plaintiff should be compelled to 7 attend an IME conducted by Dr. Kulick. As an initial matter, Plaintiff no 8 longer alleges that she is suffering severe emotional distress. (Id. at 8). 9 Plaintiff contends that she suffered severe emotional distress from January 10 10, 2020 to November 2020. (ECF No. 17-2, Exhibit G). Thereafter, Plaintiff 11 claims she has only suffered “garden variety” emotional distress. (ECF No. 12 17 at 8). This distinction is important because courts typically do not order 13 IMEs when plaintiffs seek “garden variety” emotional distress damages. 14 Gavin v. Hilton Worldwide Inc., 291 F.R.D. 161, 164 (N.D. Cal. 2013). As 15 such, the Court only considers whether Defendant is entitled to an IME 16 regarding Plaintiff’s past severe emotional distress claims. 17 A. Legal Standard 18 Federal Rule of Civil Procedure 35(a) provides, in pertinent part: 19 The court where the action is pending may order a party whose mental . . . condition . . . is in controversy to submit to a . . . mental 20 examination by a suitably licensed or certified examiner. 21 Fed. R. Civ. P. 35(a)(1). The order “may be made only on motion for good 22 cause and on notice to all parties and the person to be examined.” Fed. R. 23 Civ. P. 35(a)(2)(A). 24 Under this rule, a party may be entitled to conduct a mental 25 examination of another party if the movant demonstrates that: (1) the 26 plaintiff has placed her mental condition in controversy; and (2) good cause 1 116-17 (1964); Turner v. Imperial Stores, 161 F.R.D. 89, 92 (S.D. Cal. 1995). 2 However, IMEs are always within the Court’s discretion. See Fed. R. Civ. P. 3 35(a) (stating that the court may order an IME). 4 B. Discussion 5 The initial inquiry in this case is whether Plaintiff has placed her 6 mental condition sufficiently in controversy. A plaintiff puts her mental state 7 in controversy if one or more of the following aggravating factors are present: 8 (1) a cause of action for intentional or negligent infliction of emotional 9 distress; (2) an allegation of a specific mental or psychiatric injury or 10 disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s 11 offer of expert testimony to support a claim of emotional distress; and/or (5) 12 plaintiff’s concession that his or her mental condition is “in controversy” 13 within the meaning of Rule 35(a). Turner, 161 F.R.D. at 95. 14 The Court finds that two factors are clearly present. First, Plaintiff 15 alleges a specific mental injury—generalized anxiety disorder. (ECF No. 1 ¶ 16 1). Second, Plaintiff claims severe emotional distress from January 10, 2020 17 to November 2020. (ECF No. 17-2, Exhibit G). Accordingly, Plaintiff’s 18 mental condition is “in controversy” within the meaning of Rule 35(a). 19 Next, the Court must consider whether good cause exists to compel an 20 IME. “To establish ‘good cause’ exists for an IME, the moving party generally 21 must offer specific facts justifying the discovery.” Gavin, 291 F.R.D. at 165. 22 Courts consider: (1) the possibility of obtaining the desired information by 23 other means; (2) whether the plaintiff plans to prove her claim through 24 testimony of expert witnesses; (3) whether the materials are relevant; and (4) 25 whether the plaintiff is claiming ongoing emotional distress.” Id. 26 Defendant explains that Dr. Kulick will spend six hours conducting “a 1 of current functioning, delineation of Plaintiff’s allegations, and an 2 exploration of concurrent and past history. Dr. Kulick will also administer 3 the MMPI-II psychological test to Plaintiff.” (ECF No. 17 at 10). The MMP- 4 II psychological test measures one’s psychological functioning. (ECF No. 17- 5 1, hereinafter “Kulick Decl.” ¶ 5). Defendant avers that it cannot obtain the 6 information, opinions, and conclusions of an expert witness without an IME. 7 (ECF No. 17 at 16). The Court disagrees. Plaintiff produced voluminous 8 medical records regarding her past mental state and Defendant intends to 9 depose Plaintiff’s treating physicians. (ECF No. 17 at 25) (stating that 10 Plaintiff produced “over 500 pages of her confidential medical records, with 11 more forthcoming”). Dr. Kulick may review those records and offer an 12 opinion based on her review. As such, Defendant already has access to the 13 desired information. The Court also finds that an IME would not be relevant 14 to Plaintiff’s past emotional distress claims as the IME will focus on 15 Plaintiff’s current mental state and only discuss Plaintiff’s past medical 16 history. 17 With respect to the second factor, Defendant argues that absent an IME 18 it cannot rebut the testimony of Plaintiff’s experts. (ECF No. 17 at 16). The 19 Court also disagrees with this argument. In addition to an expert report by 20 Dr. Kulick, Defendant may cross-examine or depose each of Plaintiff’s 21 treating physicians. 22 Finally, Plaintiff is claiming only “garden variety” ongoing emotional 23 distress, which does not necessitate an independent mental examination. See 24 Gavin, 291 F.R.D. at 164. For these reasons, the Court finds that good cause 25 does not exist to compel an IME. 26 C. Conclusion 1 case, the Court declines to compel an IME. 2 III. REBUTTAL EXPERT 3 Plaintiff argues that Dr. Kulick was improperly designated as a 4 rebuttal expert. (ECF No. 17 at 19-22). Plaintiff contends that Dr. Kulick is 5 an untimely disclosed initial expert. (Id.). Defendant counters that Dr. 6 Kulick was retained to rebut the seven non-retained experts disclosed by 7 Plaintiff in her initial expert disclosures. (Id. at 17-18). The Court 8 recognizes that there is confusion regarding the role treating physicians play 9 as experts. If Plaintiff’s non-retained experts are experts subject to Federal 10 Rule of Civil Procedure 26(a)(2)(b), then Dr. Kulick is a proper rebuttal 11 expert. If not, Dr. Kulick was untimely disclosed as an initial expert. 12 The Ninth Circuit has held that a treating physician, usually a “non- 13 retained” expert, becomes a “retained” expert subject to Rule 26(a)(2)(b) 14 requirements when his or her testimony goes beyond “opinions formed during 15 the course of treatment” by reviewing external information provided by the 16 plaintiff’s attorney. Goodman v. Staples the Office Superstore, LLC, 644 F.3d 17 817, 825-26 (9th Cir. 2011). In other words, the non-retained experts may 18 testify as percipient witnesses to the treatment rendered to Plaintiff and may 19 only offer medical opinions formed during the course of her treatment. These 20 non-retained experts may not proffer opinions as to the cause of Plaintiff’s 21 mental state. Plaintiff’s initial expert disclosures explain that these non- 22 retained experts will “testify about Plaintiff’s mental disability, emotional 23 distress, and the treatment she received for her mental disability and 24 emotional distress as a result of the claims alleged in this action.” (ECF No. 25 17-3, Exhibit C). The testimony will not go beyond opinions formed during 26 the course of Plaintiff’s treatment and will not be based on external 1 Rule 26(a)(2)(b) and there is no expert opinion report for Dr. Kulick to rebut. 2 Consequently, she is an improper rebuttal expert witness. 3 The Court finds that it would be unduly prejudicial to preclude 4 Defendant from having a proper expert evaluate and testify regarding 5 Plaintiff’s medical history in light of the confusion regarding the role of 6 treating physicians as experts. Assuming Defendant still wishes to retain Dr. 7 Kulick as an expert without an IME, the Court will sua sponte amend the 8 scheduling order to allow Defendant to disclose Dr. Kulick as an initial 9 expert. 10 IV. CONCLUSION 11 Based on the foregoing, the Court DENIES Defendant’s motion to 12 compel an IME.1 IT IS FURTHER ORDERED that the Scheduling Order 13 is AMENDED as follows: 14 1. The discovery deadline is extended to July 28, 2021 for the sole 15 purpose of obtaining expert depositions. 16 2. Defendant’s expert disclosure regarding Dr. Kulick required by 17 Fed. R. Civ. P. 26(a)(2) shall be served on all parties on or before May 28, 18 2021. Any contradictory or rebuttal disclosures by Plaintiff within the 19 meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before June 28, 2021. 20 Unless otherwise stipulated by the parties, the required expert disclosures 21 shall include an expert report as required by Rule 26(a)(2)(B). If a written 22 report is not required, the disclosure must provide the information required 23 under Rule 26(a)(2)(C). 24 25 26 1 Defendant requests Plaintiff be precluded from presenting expert testimony to support her claims for emotional distress without any meaningful argument or citation to legal 1 3. All other pretrial motions must be filed by August 30, 2021. 2 Counsel for the moving party must obtain a motion hearing date from the law 3 clerk of the judge who will hear the motion. The period of time between the 4 date you request a motion date and the hearing date may vary from one 5 district judge to another. Please plan accordingly. Failure to make a timely 6 request for a motion date may result in the motion not being heard. 7 Deadlines for filing motions in limine will be set by the district judge at the 8 final Pretrial Conference. 9 4. When filing a Motion for Summary Judgment and/or Adjudication, 10 the parties need not file a separate statement of material facts absent prior 11 leave of court. 12 5. A Mandatory Settlement Conference shall be conducted on 13 August 9, 2021 at 9:30 a.m. via Videoconference with Magistrate Judge 14 Mitchell D. Dembin. Counsel or any party representing himself or herself 15 shall lodge confidential settlement briefs directly to chambers by August 2, 16 2021. The Court will use its official Zoom video conferencing account to hold 17 the Conference. On or before August 2, 2021 counsel for each party must 18 email to the Court at efile_Dembin@casd.uscourts.gov the name and title of 19 each participant and an e-mail address for each participant to receive the 20 Zoom videoconference invitation. Prior to the Conference, the Court will 21 email each participant an invitation to join a Zoom conference. Upon joint 22 request of the parties, the Court will convert the Mandatory Settlement 23 Conference to a telephonic conference. 24 6. For bench trials before the Honorable Roger T. Benitez, counsel 25 shall file their Memoranda of Contentions of Fact and Law and take any 26 other action required by Civil Local Rule 16.1(f)(2) by December 27, 2021. 1 unless otherwise ordered by the Court, is required to file Memoranda of 2 Contentions of Fact and Law pursuant to Civil Local Rule 16.1(f)(2). 3 7. Counsel shall comply with the pre-trial disclosure requirements of 4 Federal Rule of Civil Procedure 26(a)(3) by December 27, 2021. Failure to 5 comply with these disclosure requirements could result in evidence 6 preclusion or other sanctions under Federal Rule of Civil Procedure 37. 7 8. Counsel shall meet and take the action required by Civil Local 8 Rule 16.1(f)(4) by January 3, 2022. At this meeting, counsel shall discuss 9 and attempt to enter into stipulations and agreements resulting in 10 simplification of the triable issues. Counsel shall exchange copies and/or 11 display all exhibits other than those to be used for impeachment. The 12 exhibits shall be prepared in accordance with Civil Local Rule 16.1(f)(4)(c). 13 Counsel shall note any objections they have to any other parties’ Pretrial 14 Disclosures under Federal Rule of Civil Procedure 26(a)(3). Counsel shall 15 cooperate in the preparation of the proposed pretrial conference order. 16 9. Counsel for plaintiff will be responsible for preparing the pretrial 17 order and arranging the meetings of counsel pursuant to Civil Local Rule 18 16.1(f). By January 10, 2022, plaintiff’s counsel must provide opposing 19 counsel with the proposed pretrial order for review and approval. Opposing 20 counsel must communicate promptly with plaintiff’s attorney concerning any 21 objections to form or content of the pretrial order, and both parties shall 22 attempt promptly to resolve their differences, if any, concerning the order. 23 10. The Proposed Final Pretrial Conference Order, including 24 objections to any other parties’ Federal Rule of Civil Procedure 26(a)(3) 25 Pretrial Disclosures shall be prepared, served and lodged with the assigned 26 district judge by January 17, 2022, and shall be in the form prescribed in 1 11. The final Pretrial Conference is scheduled on the calendar of the 2 Honorable Roger T. Benitez on January 24, 2022 at 10:30 a.m. 3 All other guidelines remain as previously set. (ECF No. 12). 4 IT IS SO ORDERED. Dated: April 15, 2021 My, + uu s | [ Hon. Mitchell D. Dembin 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27