16 Rev. Litig. 1

The Inevitability of the Brewpub: Legal Avenues for Expanding Distribution Capabilities

Justin M. Welch

This Note examines the current state of legislation regarding the quickly expanding brewpub industry, in an attempt to predict how future legal challenges in this area might be resolved. This examination begins with a brief history of brewpub legislation as well as some of the public policies behind it. Central to this background is “tied house” legislation which, until 1993, prohibited the operation of brewpubs in Texas, by separating the alcoholic beverage industry into three distinct tiers (manufacturing, wholesale, and retail), and by prohibiting “one entity from maintaining a common interest in a license of more than one tier of the industry.” The author then discusses some of the remaining restrictions that are still in place, such as the inability of brewpubs to sell their products off premises, since the 1993 legislative changes. Finally, the Note concludes with a look to future challenges to the existing brewpub regulations. The author suggests various routes to changing the current regulations include appealing through the Texas Alcoholic Beverage Commission, as well as court challenges based on equal protection arguments, or other constitutional grounds. However, after discussing the limitations of this litigation approach, the author concedes that lobbying may be the most successful strategy to implement change in the regulation of brewpubs.


   I. Introduction Rule 35 of the Federal Rules of Civil Procedure permits a party to a pending action to obtain a court order forcing another party whose mental condition is in controversy to submit to a mental examination by a doctor or psychiatrist, often the movant's expert. Whether a court will grant such an order usually depends on the extent to which the party's condition is in controversy. In many cases, the determination is easy, such as where a plaintiff sued a drug manufacturer claiming that he suffered ongoing psychiatric harm from taking a tranquilizer, n1 or where the plaintiff in an age discrimination case made no claim for mental or emotional damages. n2     Such cases, however, are the exception rather than the rule; most employment discrimination plaintiffs put their mental condition at issue at least to some degree. In federal sexual harassment cases, for example, a plaintiff alleging a hostile environment must show that she subjectively perceived the work environment to be abusive, though she need not necessarily show a severe effect on her psychological well being. n3 Most employment discrimination cases are accompanied by a state law claim of intentional infliction of emotional distress, n4 which by itself may be enough to put the plaintiff's mental condition at issue. The Civil Rights Act of 1991, by explicitly permitting recovery for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses" n5 in cases arising under Title VII, n6 the Americans with Disabilities Act, n7 and the Rehabilitation Act, n8 similarly encourages plaintiffs to seek such relief and thereby to put their mental condition at issue. n9     Courts are inconsistent regarding whether, and under what circumstances, a defendant is entitled to obtain a mental examination of an employment discrimination plaintiff. This article reviews the competing policies behind Rule 35, the case law, and the psychiatric literature relevant to the issue. It proposes that courts abandon the current approach of utilizing bright line tests that bear no relation to the underlying policy objectives of Rule 35; instead, courts should focus directly on those policy objectives, such as the plaintiff's right to privacy and the defendant's right to discover relevant information.    II. Background    A. The Rule and its Interpretation by the Supreme Court Rule 35 of the Federal Rules of Civil Procedure, in relevant part, provides:    ORDER FOR EXAMINATION. When the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner ... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. n10 The Advisory Committee Note of the 1970 Amendment to Rule 35 emphasizes that "before a court order may issue[,] the relevant physical or mental condition must be shown to be "in controversy' and "good cause' must be shown for the examination." n11     The only Supreme Court case construing the scope of Rule 35 is Schlagenhauf v. Holder. n12 In Schlagenhauf, the plaintiffs were passengers injured when their bus collided with a truck. The defendant truck company, in answer to a cross claim by the co defendant bus company, charged that the bus driver had not been "mentally or physically capable" of driving the bus safely. n13 The truck company moved for an order directing the bus driver to submit to both a mental and physical examination. The district court ordered the driver to submit to examinations in internal medicine, ophthalmology, neurology, and psychiatry. n14     Upon petition by the bus company, the Supreme Court granted certiorari. n15 In the Court's view, the record contained only the conclusory assertion in the pleadings that the bus driver's vision might have been impaired and some indications from discovery that this might be true. n16 While conceding that this might be sufficient to establish relevancy, the Court nevertheless held that the "good cause" and "in controversy" requirements of Rule 35 imposed a greater burden than relevancy. n17 The Court also stated that these limitations are more than "a mere formality" and further wrote:    [These limitations] are not met by mere conclusory allegations of the pleadings nor by mere relevance to the case but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant. n18 The Court recognized that at times the pleadings may be sufficient to put mental or physical condition in controversy, as when a plaintiff in a negligence action alleges mental or physical injury. n19 However, when a party has not put her own condition at issue, the court must decide whether the movant has made an adequate showing. The Court observed:    This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule. n20 In Schlagenhauf, the Court determined that the bus driver had not asserted his mental condition either in support or defense of the claim and that the general charge of negligence failed to put his mental state into controversy. n21 Schlagenhauf therefore stands for the proposition that one party's unsubstantiated allegation cannot put into controversy the mental state of another.    B. Competing Policy Considerations As pointed out by the Supreme Court in Union Pacific Railway Co. v. Botsford, n22 a party's request for a Rule 35 examination forces courts to balance the rights of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery. For example, in Vinson v. Superior Court of Alameda County, n23 the defendants to a sexual harassment suit filed a Rule 35 motion requesting the court to require plaintiff to submit to a mental examination unencumbered by substantial restrictions on its scope. n24 The plaintiff complained that a mental examination would be excessively intrusive, particularly if the defendants were permitted to probe into her sexual history. n25     The plaintiff in Vinson advanced two separate policy reasons for denying the mental examination or, in the alternative, restricting its scope. First, she argued that it would invade her protected sphere of privacy. n26 A mental examination by its nature intrudes into a person's thoughts and thought processes, particularly when the examination centers on issues concerning sexuality. Second, the plaintiff argued that permitting unrestricted mental examinations of sexual harassment plaintiffs would discourage persons with meritorious claims from reporting and pursuing their claims, because they would be justifiably wary of subjecting themselves to further intrusion into their personal lives. n27 The same argument would apply, though with somewhat less force, in other types of discrimination cases; plaintiffs might be less likely to pursue claims if they knew that the cost of doing so included subjecting themselves to a mental examination by defendant's expert. A third reason for restricting the applicability or scope of Rule 35 examinations is that the examinations themselves may exacerbate a plaintiff's emotional distress, thereby contributing to the very problem which the plaintiff seeks to remedy by filing a discrimination claim. n28     The defendants in Vinson argued that the plaintiff had waived her privacy interests when she put her emotional condition at issue by alleging emotional distress. It would be unfair, they argued, to permit the plaintiff to bring them into court and accuse them of causing her emotional distress without permitting them to rebut this accusation by proffering expert testimony as to whether and to what extent the plaintiff had been emotionally damaged, and as to whether the damage was caused by the defendants, by a preexisting condition, or by some other cause. n29 If the plaintiff were to use an expert at trial to provide evidence supporting her version of these issues, trial of the emotional damages issues would largely become a "battle of the experts." n30 The defendant's experts would be seriously disadvantaged if they were denied an opportunity, always enjoyed by the plaintiff's expert, to examine the plaintiff. n31 It is for this reason that courts frequently state that Rule35 should be liberally construed in favor of granting discovery. n32     The Vinson court agreed with the defendants that they were entitled to have their expert examine the plaintiff, and that the expert could inquire into matters relating to both the magnitude and the possible alternate causes of the plaintiff's emotional distress. n33 However, the court restricted the scope of the examination to deny the defendants the latitude to inquire into the plaintiff's sexuality because the defendants had failed to establish specific facts justifying inquiry into that subject. n34 Rule 35 gives trial courts wide discretion over decisions to order mental examinations. n35 This discretion, combined with judges' understandable reluctance to order invasive mental examinations of plaintiffs who claim to have been emotionally damaged by defendant's discriminatory conduct, may explain the disparate standards courts have announced to explain their Rule 35 decisions. Part III reviews the case law and discusses the standards courts have used to determine whether to order Rule 35 mental examinations.    III. Review of Cases Unlike the bus driver in Schlagenhauf, who had a controversy thrust upon him, most employment discrimination plaintiffs explicitly put their mental condition at issue by claiming mental or emotional damages or the independent tort of intentional infliction of emotional distress. At first glance, such plaintiffs would appear ipso facto to have put their mental condition at issue, as did the negligence plaintiffs in Schlagenhauf, whom the Court describes as "clearly" putting their mental condition at issue by asserting mental injury. n36 However, courts have distinguished employment discrimination cases from negligence cases, n37 almost always without accompanying analysis, n38 and often with the statement that to rule otherwise would require every employment discrimination plaintiff to submit to a mental examination. n39     The result is that the case law is widely divergent on the issue of whether, and under what circumstances, a defendant may compel the mental examination of an employment discrimination plaintiff. Courts apply inconsistent standards; even those courts applying consistent standards often obtain different results. This section develops a framework from which to analyze the cases.    A. The Easy Cases As discussed in Part I, extreme cases yield the most predictable outcomes. For example, in Vinson v. Superior Court, n40 the plaintiff brought suit for sexual harassment and intentional infliction of emotional distress, asserting that her emotional damages were continuing and likely would continue into the future. n41 The California Supreme Court held that under these circumstances, where the plaintiff had "hailed defendants into court and accused them of causing her various mental and emotional ailments ... [,] the existence and extent of her mental injuries [were] indubitably in dispute." n42 The court thus affirmed the trial court's order permitting a mental examination of the plaintiff. n43     At the other side of the spectrum is Acosta v. Tenneco Oil Co., n44 an age discrimination case in which Acosta, the plaintiff, alleged neither mental or emotional damages nor an independent tort of intentional infliction of emotional distress. The issue of a mental examination arose in response to Tenneco's affirmative defense that Acosta had failed to mitigate damages by failing to exercise reasonable diligence in seeking comparable employment. n45 In response, Acosta hired a vocational rehabilitation expert to evaluate the reasonableness of his efforts to secure substitute employment. n46 As part of the evaluation, the expert interviewed Acosta to provide a context by which he could interpret the personality tests he had administered, to evaluate Acosta's intelligence, and to elicit information regarding Acosta's education and work history. n47     Tenneco moved under Rule 35 to compel Acosta to submit to an examination by a vocational rehabilitation expert of its own. n48 The magistrate and trial court granted the motion, explaining that Acosta's employability was relevant to the issue of damages. n49 The Fifth Circuit reversed. Noting that Acosta had neither sought nor alleged mental or emotional damages, the court held that Tenneco's inquiry into the reasonableness of Acosta's efforts to secure substitute employment "cannot be construed as placing into controversy Acosta's mental or physical condition." n50 To do so, noted the court, would sanction a mental examination in every age discrimination case and would render meaningless Rule 35's express limitations. n51     Vinson was an easy case because the plaintiff alleged both ongoing emotional injuries and an independent tort for emotional distress. Acosta was an easy case because the plaintiff made no claim for emotional damages, past or present. Between the two extremes, however, there is a wide gulf of conflicting authority over whether, and under what circumstances, a defendant can compel a Rule 35 mental examination. The next sections discuss the tests that have been announced by courts when deciding this issue.    B. Mere Allegation of Mental/Emotional Damages Many courts have held that a plaintiff's mere allegation that the defendant's discriminatory acts caused her to suffer mental or emotional damages is enough to put her mental condition "in controversy" so as to trigger the defendant's right to obtain a Rule 35 mental examination. n52 In Smedley v. Capps, Staples, Ward, Hastings & Dodson, n53 the plaintiff claimed she had been wrongfully terminated in violation of a California statute prohibiting employers from interfering with employees' political activities. In response to the defendant's Rule 35 motion for a psychological examination, the plaintiff voluntarily dismissed her claim of intentional infliction of emotional distress. n54 She also stipulated that she would not present at trial any expert testimony regarding her past or present emotional distress and that she would not seek damages for medical expenses incurred relating to psychological injury. n55 The plaintiff, however, stated that she still intended to present evidence of "normal" emotional distress. n56 The court held that this alone was sufficient to justify a Rule 35 examination because the defendants would need such an examination to refute the plaintiff's claim of emotional distress damages. n57     Other courts, however, have expressly held that a mere allegation of emotional damages is not sufficient to justify a Rule 35 examination. n58 In Cody v. Marriott Corp., n59 the plaintiff claimed as an element of damages in her employment discrimination case that she had suffered emotional distress. n60 When the defendant moved for a Rule 35 examination, the court denied it, explaining that the plaintiff had not placed her mental condition "in controversy" merely by asserting a claim of damages for emotional distress. n61 The court qualified its decision, however, by stating that although the plaintiff's mental condition was not "in controversy" in the instant case, "this ... does not suggest that a plaintiff could never place his or her mental or physical condition "in controversy' in an employment discrimination case." n62 In a similar case, Robison v. Jacksonville Shipyards, Inc., n63 the court held that the plaintiff did not place her mental condition in controversy, even though she claimed back pay for days lost due to stress and alleged a serious effect on her psychological well being. n64     If a plaintiff's emotional distress damage is confined to an allegation of subjectively hurt feelings, then a psychiatric examination adds nothing to what the plaintiff could testify to on her own. The jurors can decide for themselves whether the plaintiff's hurt feelings are worthy of credence and compensation. Employment plaintiffs, however, rarely confine their emotional distress allegations to hurt feelings. Such claims usually are accompanied by allegations of other symptoms such as insomnia, panic attacks, impaired concentration, irritability, mood swings, personality changes, and a variety of physical ailments such as ulcers and headaches. Such symptomology may indicate the presence of a psychiatric disorder, raising three issues for which psychiatric expertise may be needed.     The first issue is whether the plaintiff is experiencing or has experienced a diagnosable psychiatric disorder. A specific diagnosis is far more objective, independently verifiable, and useful for a jury than a vague allegation of emotional distress.     The second issue is whether, and to what extent, the symptomology and/or disorder is causally traceable to the defendant. The plaintiff's symptoms may be unrelated to the employment trauma she is alleging in her lawsuit if, for example, her headaches are caused by an impending rupture of a cerebral aneurysm, exposure to toxic chemicals, or migraines. A thorough psychiatric and physical examination could reveal whether a plaintiff is at risk from these sources. A plaintiff's emotional distress might be caused by other stressors in her life, such as divorce. A psychiatric examination would be more useful than a deposition for ascertaining whether and to what extent other stressors might contribute to a plaintiff's emotional condition. Similarly, a plaintiff's preexisting emotional condition could significantly affect both the way she perceives certain incidents in the workplace and their effects on her. n65     The third issue for which a psychiatric expert may be useful concerns the severity of plaintiff's emotional damages. If the plaintiff is experiencing a specific psychiatric disorder, is it treatable? If so, how can it be treated, and at what cost (emotional or monetary) to the plaintiff? How long can the disorder be expected to last? How does plaintiff's condition compare to lesser traumas and disappointments that everyone suffers at various times throughout their lives? How has the plaintiff coped with similar and different traumas before?     These three issues diagnosis, causation, and damages can arise in and be relevant to a jury's determination of any emotional distress claim. To characterize an emotional distress claim as "normal" or "garden variety," as the Smedley court did, merely begs the harder questions which a psychiatric expert may be able to answer.    C. Allegation of Ongoing Mental or Emotional Distress As discussed above, some courts have granted Rule 35 examinations based exclusively on whether the plaintiff was alleging mental or emotional damages. Many courts, however, have stated that this is too broad a standard and have imposed different tests for deciding when a Rule 35 examination is justified. n66 One such test is whether the plaintiff claims that the mental or emotional distress caused by the defendant continues to the present. n67     In Hodges v. Keane, n68 a prison inmate brought an action under 42 U.S.C. 1983, alleging that prison officials racially harassed and discriminated against him. n69 He sought damages for the emotional injuries he allegedly had suffered from his "repeated and unlawful placement in restrictive confinement," but did not claim that these emotional injuries resulted in ongoing pain and suffering. n70 The court held that normally this would not suffice to justify a Rule 35 examination, because that would "open the floodgates to requests for mental examinations whenever a plaintiff alleged past pain and suffering." n71 Instead, the court asserted, the proper test for determining the propriety of a Rule 35 mental examination was whether the alleged emotional distress was ongoing. The court wrote: "Had plaintiff elected to assert the existence of an ongoing mental illness resulting from defendants' acts or omissions, defendant would undoubtedly be entitled to an order under Rule 35(a) entitling them to conduct a psychiatric evaluation to determine the existence of such a condition." n72 However, in this case the court found that a Rule 35 mental examination was warranted even though plaintiff had not alleged an ongoing emotional injury, because the defendants had proffered "compelling documentary evidence" that the plaintiff suffered from paranoid schizophrenia and a mental examination was appropriate to ascertain whether this allegation was true. n73     The rationale for conditioning a Rule 35 mental examination on a plaintiff's assertion of ongoing mental or emotional damages is that a mental examination is not likely to be as useful for ascertaining past pain and suffering as it is for ascertaining a plaintiff's present condition. For example, in Coca Cola Bottling Co. of Puerto Rico v. Torres, n74 a plaintiff sued Coca Cola for the emotional distress he allegedly suffered as the result of his discovery of the putrified body of a small mouse in a bottle of Coca Cola from which he was drinking. n75 Before trial, Coca Cola moved for a Rule 35 examination of the plaintiff. The trial court denied the motion, and the First Circuit affirmed, stating that because plaintiff was seeking damages only for past emotional disturbance, an examination "would be useless since it would not show the extent of the injury he had suffered in the past from which he had wholly recovered." n76     This rationale, however, is predicated on a misperception of the diagnostic capability of modern psychiatry. Past conditions are diagnosed every day by psychiatrists and other physicians. The same issues raised by an allegation of present distress, such as diagnosis, causation, and severity, arise in an allegation of past distress. The principle that psychiatric examinations are useless in evaluating injuries from which one has recovered is inconsistent with common practice in medical evaluations, which, for example, permits the diagnosis of a migraine headache from which the plaintiff is not suffering at the time of the examination.     Perhaps for this reason, not all courts agree with Torres. In Reise v. Board of Regents, n77 the Seventh Circuit refused to consider the appeal n78 of a trial court's order requiring a plaintiff alleging race and sex discrimination to undergo a Rule 35 mental examination, despite the plaintiff's stipulation that "because he [was] over his distress and [was] not seeking damages on account of his current mental condition, an examination would reveal nothing of value." n79     A plaintiff's claim of continuing emotional damage appears to be per se a sufficient justification for a court to grant a Rule 35 mental examination. There are no reported employment cases in which a court discusses the ongoing nature of a plaintiff's emotional distress claim but nevertheless denies a defendant's Rule 35 motion. However, the existence of a claim of continuing emotional damage does not appear to be necessary in order for a court to grant a Rule 35 motion. For example, in Everly v. United Parcel Serv., Inc., n80 the court held that the fact that plaintiff appended to her sex discrimination claim a separate tort of intentional infliction of emotional distress was sufficient, without more, to justify a Rule 35 mental examination. n81 The court did not discuss whether plaintiff's claim of emotional distress was ongoing. Thus, a plaintiff's allegation of ongoing emotional distress is a sufficient, but not a necessary, precondition for the order of a Rule 35 mental examination.    D. Allegation of an Independent Tort of Intentional Infliction of Emotional Distress In Everly, discussed above, the court held that a plaintiff's allegation of an independent tort claim of emotional distress can justify a Rule 35 mental examination. n82 In Robinson v. Jacksonville Shipyards, Inc., n83 the court refused to order a Rule 35 mental examination because plaintiff had not brought such a tort claim. After reviewing several cases applying Rule 35 to employment cases, the court concluded that "the distinction between tort claims for damages stemming from emotional and mental damage and Title VII claims explains those instances in which courts have ordered mental examinations." n84 The court did not discuss whether the plaintiff's allegation of mental and emotional damages was ongoing, nor the effect, if any, that such an allegation would have on whether a Rule 35 mental examination should be compelled.     The Everly and Robinson decisions, however, merely beg the question of what precisely is the difference between a tort claim for emotional distress and a Title VII claim for emotional damages. Perhaps these courts are assuming that, because the standards for proving the tort are so stringent, n85 tort claims necessarily will involve distress allegations of greater severity than Title VII claims. This may or may not empirically be true. Even if it is, however, this has no effect on the value of a psychiatric examination, which is not dependent for its utility on the severity of the distress alleged. With the exception of the plaintiff whose only distress allegation is hurt feelings, the same issues such as diagnosis, causation, and damages arise whether the plaintiff alleges that his distress is extremely severe or merely mild, and whether the allegation of distress is made in the guise of a tort claim or a Title VII claim.     Like the allegation of ongoing emotional distress, a plaintiff's allegation of an independent tort of intentional infliction of emotional distress in an employment case appears to be a sufficient, though not a necessary, precondition for the order of a Rule 35 mental examination. There are no reported employment cases in which a court discusses the plaintiff's allegation of an independent tort of emotional distress but nonetheless denies the defendant's Rule 35 motion. Several courts, however, have held that a Rule 35 mental examination is appropriate despite the fact that no independent emotional distress tort was alleged. n86    E. Allegation of Either Independent Tort or Ongoing Emotional Distress Consistent with the cases cited in sections C and D above, several courts have indicated that a plaintiff's allegation of either an independent tort or ongoing emotional distress will suffice to justify the order of a Rule 35 mental examination. n87 However, this approach does not explain the cases discussed in section B in which a Rule 35 mental examination was ordered without discussion of whether an independent tort or ongoing emotional distress was alleged.    F. Plaintiff's Intention to Introduce at Trial Expert Testimony Regarding Her Mental or Emotional Distress Another approach commonly taken by courts faced with a motion for a Rule 35 mental examination is to focus on whether the plaintiff will introduce at trial expert testimony regarding her mental or emotional distress. For example, in Ziemann v. Burlington County Bridge Comm 'n, n88 the defendant, whose psychiatric expert already had examined plaintiff at the beginning of discovery, sought a second examination before trial due to plaintiff's alleged "serious deterioration of her emotional state" subsequent to the first examination. n89 The court, after reviewing several cases discussing the availability of Rule 35 mental examinations, concluded that "the decisions sanctioning evaluation by defense experts have generally entailed the plaintiff 's introduction of psychiatric testimony at trial, which the defense is then permitted to rebut by testimony as to its own mental evaluation." n90 Because plaintiff had designated a psychiatric expert and apparently intended to introduce such testimony at trial, the court permitted the defendant to conduct the second examination. n91     Other cases similarly have stressed that Rule 35 examinations are appropriate whenever plaintiff intends to introduce at trial expert testimony regarding her mental or emotional distress. In Cody v. Marriott Corp., n92 the court, though denying defendant's Rule 35 motion, stated that it would reconsider its decision if the plaintiff should subsequently utilize the services of a psychiatrist or a psychologist for use at trial. n93 These cases reflect courts' apparent concern that it would be unfair to deny a defendant's expert the opportunity to examine the plaintiff if the plaintiff will proffer at trial the testimony of her own expert, who undoubtedly has had an opportunity to examine the plaintiff.     While a defendant's expert should never be denied the opportunity to examine a plaintiff where the plaintiff intends to introduce expert testimony at trial, the plaintiff's stated intention should not be a precondition for a defendant's expert examination. The plaintiff's trial tactics do not determine whether a psychiatric evaluation could answer relevant questions of diagnosis, causation, and damages. Such an approach presupposes that the plaintiff or his attorney can discern the psychiatric significance of the plaintiff's emotional distress and that their assessment of the cause of the plaintiff's emotional distress is accurate. This rationale, if extended to medical evaluations, would disqualify a neurological examination in a case in which a plaintiff, declining to introduce neurologic testimony, alleges that his seizures were caused by an automobile accident and were not preexisting. It similarly would disqualify a cardiological examination of a plaintiff who, planning not to introduce testimony by a cardiologist, claims that his new fainting spells are caused by a blow to the head and not by cardiac disease.    G. Plaintiff's Allegation of a Specific Psychiatric Disorder Other courts have focused on whether the plaintiff has alleged a specific psychiatric disorder. In denying a defendant's motion for a Rule 35 mental examination, the court in Cody noted that "plaintiff merely has made a claim of emotional distress, not a claim of a psychiatric disorder requiring psychiatric or psychological counseling." n94 Other courts similarly have noted the absence of the allegation of a specific psychiatric disorder as a factor in their denial of Rule 35 motions. n95     Few courts have discussed the basis for holding that an allegation of a specific psychiatric disorder is a prerequisite to, or a factor in, the grant or denial of a Rule35 motion. One of the exceptions is Tomlin v. Holecek. n96 In that case, plaintiff alleged that he suffered "severe and permanent physical and emotional injuries," including a psychological injury which manifested itself through sexual dysfunction, as a result of an attack by union sympathizers on an encampment of non unionized construction workers. n97 The court asserted that the term "mental" in Rule 35(a) referred to "mental disorders and psychiatric aberrations," n98 and held that to put his mental condition in controversy, a plaintiff must assert a claim of mental or psychiatric injury. n99 The plaintiff's allegations were apparently specific enough to meet this test, as the court had "no difficulty in concluding" that a Rule 35 examination was warranted. n100     Courts which focus on whether the plaintiff has alleged a specific psychiatric disorder seem to be using such an allegation as a proxy for the severity of the alleged emotional distress. The argument seems to be that if the emotional distress is severe enough to rise to the level of a specific psychiatric disorder, it is severe enough to warrant a Rule 35 examination. There is no discussion, however, about whether "normal" emotional distress is any less severe than emotional distress with a specific diagnosis, or whether the plaintiff's ability to pin a specific label on her distress at this stage of the litigation is relevant to the court's decision of whether to impose a Rule 35 mental examination. Like some of the other methods courts have used to decide Rule 35 issues, this one merely begs the harder questions related to diagnosis, causation, and damages.     An alternate basis for focusing on whether a plaintiff has alleged a specific psychiatric disorder is that specific disorders may be easier to diagnose than vague allegations of emotional distress, making a mental examination more useful when a specific disorder is alleged. The cases do not discuss this, however, and there is nothing in the psychiatric literature to suggest that specific disorders are in fact easier to diagnose. Moreover, the imposition of such a standard would reward plaintiffs who make vague accusations of emotional distress while penalizing (by subjecting them to a mental examination by defendant's expert) plaintiffs who set forth more specific accusations, thereby frustrating the litigation goals of broad discovery and factual veracity.    IV. The Efficacy of Rule 35 Mental Examinations in Employment Discrimination Cases The purpose of psychiatric examinations in employment discrimination cases, like neurological examinations in automobile injury cases, varies. Just as a neurological examination may help to ascertain whether the driver suffered from narcolepsy or seizures at the time of the accident and/or to determine the extent of the head injury and its effects on his life, his ability to earn a living, and his need for future medical care, a psychiatric examination may be used for similar purposes of diagnosis, causation and damages. Factors such as previous traumatic experiences, personality type, recent or historical stressors, and the presence or absence of a mental illness may affect the plaintiff's perception of workplace incidents. These factors may also affect the severity of the emotional injury and the plaintiff's ability to overcome it.     The value of a psychiatric examination, like the value of a medical examination, must be balanced against the legitimate concerns for the plaintiff 's privacy. Psychiatric examinations generally consist of wide ranging questions designed to obtain as accurate a picture as possible of the patient's psychiatric status, personality, cognitive functioning, the relevance of certain stressors, and of the plaintiff's reactions to them. Psychiatric examinations, like medical examinations (and depositions and courtroom testimony), undoubtedly introduce some stress, but for most patients and plaintiffs, this can be reduced by the examiner. A psychiatric examination, performed by a courteous examiner, in which the plaintiff is told of the nonconfidentiality of the examination and reminded of his choice in answering any question, may be no more stressful than medical examinations in which a patient may have to reveal very personal information and even to disrobe.     Many of the tests courts have used to determine whether to order Rule 35 mental examinations poorly balance relevance and privacy. Questions of whether a plaintiff's distress is ongoing, whether a plaintiff elects a tort or statutory label for the claim, whether a plaintiff intends to introduce expert testimony at trial, and whether a plaintiff alleges a specific psychiatric disorder, are largely irrelevant to the more important issues of diagnosis, causation, and damages. Similarly, they provide little insight regarding whether a defendant's need to discover relevant information outweighs a plaintiff's desire for privacy.     Moreover, these tests reflect erroneous stereotypes about the diagnostic ability of psychiatry. Psychiatry has long been considered a "voodoo science." This view in large part is based on concerns that diagnoses are subjective and not independently verifiable. n101 An implicit, and often unconscious, comparison is made to the more objective diagnoses of "physical" medicine. It is, for example, difficult to argue with a diagnosis of a compound bone fracture when presented with an X ray, but it is impossible to verify a borderline personality disorder with a simple test.     This supposed contrast between psychiatry and "physical" medicine is not as vivid as some would assume. First, it is the rare medical diagnosis that is entirely objective or easily verifiable. Most medical diagnoses are educated guesses based partly on objective data and partly on the patient's explication of his symptoms, which may itself be colored by the patient's psychiatric condition or extraneous motives.     Second, psychiatric diagnoses are far less subjective than some would imagine. For example, based upon a literature review, reanalysis of data, and field trials, criterion A of post traumatic stress disorder was changed in 1994 to enhance objectivity. n102 The former requirement of "an event outside the range of normal human experience" n103 was changed to a requirement that (1) the person must have experienced, witnessed, or have been confronted with events that involved actual or threatened death or serious injury, or a threat to the physical integrity of the person or others, and that (2) the person's response involved intense fear, helplessness, or horror. n104 This progression toward formal criteria for specific psychiatric disorders has significantly improved concurrence in the diagnosis of psychiatric disorders. n105     Any field of medicine contains differences sometimes wide differences of opinion, even among competent diagnosticians. The legal system, which, by its nature, is based upon finding truth in the crucible of opposing positions, might harbor at times widely differing opinions about many topics, including medical diagnoses; these differences often are left for the judge and jury to sort out. This diversity of opinion, however, is no more true of psychiatric experts than it is of virtually any kind of expert that testifies in judicial proceedings.    V. A New Proposed Standard The tests discussed in Part III of this article poorly balance the factors that the Supreme Court has stated should inform a court's decision of whether to order a mental examination: the defendant's need to discover relevant information and the plaintiff's desire for privacy. Courts should eschew these tests and instead should balance the Supreme Court's factors in light of the facts of each case.     The weight a court accords a plaintiff's desire for privacy will depend on the type of the case and the scope of the desired mental examination. A plaintiff's need for privacy is greatest, for example, in a sexual harassment case where the defendant's mental expert wants to inquire into the plaintiff's sexual history, preferences, and practices. Privacy concerns are significantly less potent in, for example, situations such as an age discrimination case where the plaintiff attributes her nervousness and agitation to the alleged discrimination.     The weight that should be accorded a defendant's need for discovery will depend on the extent to which a mental examination could yield useful information about diagnosis, causation, and damages. A mental examination is not particularly useful for evaluating a plaintiff's claim of subjectively hurt feelings, but it can be extremely useful for making (or rebutting) specific diagnoses, for ascertaining whether the symptoms of which a plaintiff complains are causally related to the alleged employment trauma, and for evaluating the extent to which a plaintiff has been damaged by the alleged trauma. Courts should focus on these issues when deciding whether a mental examination will likely yield discoverable information.     Moreover, a court's decision should be informed by an accurate assessment of psychiatric capabilities. Courts should not assume, for example, that psychiatrists are incapable of diagnosing past psychiatric conditions, that the utility of a mental examination is dependent on the severity of the alleged trauma, or that psychiatric diagnoses are any more subjective than most medical diagnoses.     Because many current Rule 35 cases have been based upon courts' erroneous assumptions that devalue the utility of mental examinations, the proposed approach will likely increase the proportion of cases in which a request for a mental examination is ordered. This is not, however, the product of giving any less weight to the need to protect a plaintiff's privacy. It simply reflects the fact that many courts are underestimating the value of mental examinations. Judicial decisions should be made on the basis of an accurate assessment of the capabilities of modern psychiatry.    VI. Conclusion Courts have adopted several different and often mutually exclusive tests for determining whether, and under what circumstances, a defendant is entitled to obtain a mental examination of an employment discrimination plaintiff who is alleging mental distress damages. Although these cases genuflect to the competing policies at issue the plaintiff's right to personal privacy versus the defendant's right to discover relevant information most of the tests employ bright line criteria which are unrelated to the underlying policies. Rather than relying on these criteria, courts should focus on whether a Rule 35 examination is likely to yield evidence relevant to the plaintiff's emotional distress claim. This inquiry should center on issues related to the diagnosis, cause, and severity of a plaintiff's alleged emotional distress.
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