Most employment laws permit a Plaintiff employee to recover compensatory damages for emotional distress. Sometimes Defendants seek to have plaintiffs submit to a psychological or psychiatric examination conducted by psychologist or psychiatrist hired by the defendant. In Montana v. County of Cape May Board, 2013 U.S. Dist. LEXIS 57674 (D. N. J. April 22, 2013) (Schneider, M. J.), the Court followed precedent in and determined that a plaintiff claiming “garden variety” emotional distress is not required to undergo a defense psychiatric examination.
In Montana, the employee’s claims included harassment and retaliation but the employee was not seeking to use at trial any mental health records but instead a psychologist who is a “workplace bullying or mobbing” expert. The Defendant argued that a defense psychiatric examination should be ordered because plaintiff’s mental health condition is “in controversy.” The Court noted that under Supreme Court precedent interpreting Fed. R. Civ. P. 35 in Schlagenhauf v. Holder, 85 S. Ct. 234 (1964), mental and physical examinations are only to be ordered upon a discriminating application by the district judge because as stated in Bowen v. Parking Auth. of Camden, 214 F.R.D. 188 (D.N.J. 2003), for a plaintiff’s mental status to be” ‘in controversy” there must be more than “garden variety” emotional distress allegations.” Instead one or more of the following is required:(1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff’s concession that his or her mental condition is “‘in controversy.” Applying this standard in Montana, the Court found that since emotional distress claim is typically asserted in employment/workplace cases, and is a “garden variety” claim, there was no “good cause” for the examination.
For more information about employment discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2119248.html