Robert Fitzpatrick - Hello, I'm Bob Fitzpatrick, and I'm gonna talk for the next hour or so to you all about federal civil rule 35, mental exams in employment cases. That in and of itself was a mouthful.
First of all, we're under the federal rules. I'll briefly talk in a minute about state rules. We're only talking about mental rule 35, deals with physical and mental. Physical exams have been around, I mean, rule 35, been around since slightly before 1940, but physical exams rarely come out except maybe in ADA cases, but rarely come up in employment cases. Mental exams have really taken off in employment cases in the last decade, so we're gonna be talking about employment cases, mental exams. Let me quickly, the slide will have a disclaimer on it, but let me just quickly, in simple terms, explain the disclaimer to you. If you are stupid enough to rely upon something that I say or something that's in the slide deck, and I'm dead wrong, or the courts have evolved beyond where I'm at, or my slide deck is dead wrong, it's your fault, not mine . That's the simple explanation of my disclaimer. You need to be familiar with rule 35. Some of the text of it is in your slide deck. The important parts are three.
One, and I'll talk about this at some length, one, the mental condition of the person being proposed to be examined has to be, quote, in controversy, not at issue. That's a concept very different than in controversy. It may be, and we'll discuss this, it may be that it's not in controversy. It may be what's called garden variety emotional distress, but it still is at issue because it is pled as a damage, garden variety emotional distress for example, and therefore raises issues about discovery of medical records, et cetera, all of which I hope we'll get to. Number two in the rule is there is a requirement that there be good cause for the mental exam. That kind of goes, in most cases, hand in hand with in controversy. And then thirdly, and this will come up at the end of our discussion, there's a 1991 amendment to the rule that added the language that the examination can be by a, quote, suitably licensed or certified examiner.
What the heck does that mean? Well, the defense has argued, and for the most part successfully, that that language now means that a vocational rehabilitation expert can conduct an examination of the plaintiff in the employment case under rule 35. I'll discuss that at some length, I hope, near the end of our discussion here. Suffice it to say it's a very underused tactic by the defense, in my judgment. Should be much more utilized by the defense, because it bears on employability, mitigation, and most importantly, the amount of damages that can be awarded. May affect the jury. Even if it doesn't affect the jury, it may affect the judge on a request for a remit or to reduce the amount of a damage award, because the vocal rehab expert has testified about skillset, the employability, et cetera, et cetera. So that 1991 amendment, in my judgment, very important, and not as utilized by the defense as it should be. So that's federal, I emphasize federal, rule 35. Don't forget, if you're in one of these situations where, and it is basically, is emotional distress gonna be pled in the case? I don't see an employment case being filed in this era that there isn't a request for emotional distress damages, so thinking about rule 35 almost comes into play automatically in these cases, but what I'm about to say is do not forget if you are plaintiff's counsel, and I represent both sides. I switch it, I represent employees and management, but if you are wearing an employee hat, keep in mind that in many jurisdictions, many states, there is a state rule, a state statute, dealing with mental exams.
California, for example, has a very extensive rule on the issue, and if California, if you're debating, do I go to federal court or do I go to state court, and you're discussing with your client the implications in terms of a mental exam under the 35 as opposed to under the California regime, that may affect whether you file in federal or whether you file in state, and just stay clean so you don't get removed to federal because you like your state mental exam regime better than you do your federal. Place like California may give your client more protections than a federal court might give, so you gotta be familiar with your federal and your state rules. A little history real quick of federal rule 35. Prior to shortly before 1940, there was no such thing, and in 1891 , late 19th century, in the Botsford case, the Supreme Court said that a physical exam, that was kind of the soup du jour back then, there were physical exams. We weren't into big timing. The rule eventually, 35, talks about physical and mental, but back in the day, the late night 19th century, we're talking about physical exams, in Botsford, the court said, seven to sue this decision, the chief's judge then, Fuller, Chief Justice Fuller, writes the opinion for seven, holds that a physical exam in a negligent case, that the congress had not conferred on the courts the power to compel a physical exam, an issue which later comes up after 35 has passed as to whether this is a procedural or substantive decision held eventually by the Supreme in upholding the constitutionality of rule 35, that Botsford is a procedural decision.
There's a quote out of Chief Justice Fuller in the Botsford case that certainly could be used. I don't see it being used, but it ought to be in vaccine cases and in Dobbs, the abortion decision that's up before the Supreme Court right now, and the quote that I refer to is the chief justice says no right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from any restraint or interference by others. Seems to me that that's a quote that should be being used in some other cases that are kicking around in the court system now, 130 years later. Then the rule gets passed, 35, and certainly surprising, I think, to us in our era, the court in Sibbach, if I'm pronouncing it correctly, versus Wilson and Co., in 1940 finds rule 35 is constitutional procedurally under the enabling act, but is only a five-four decision. Frankfurter, Douglas, Black, and Murphy descent, you know, surprising to us in our era, so it was really close, just by a hair, does the rule get held to be constitutional. That'll give you an idea of how dearly held was the common law tradition of personal autonomy, personal integrity, so on. We got past the history.
Now let's go back to 35 in the in-controversy part of the rule, and there are five, if you will, subparts, that discuss in controversy, and if any of these five are met, bingo, the in controversy requirement has been satisfied and you're one step, your client, one step, if you're on the plaintiff side, your client is one step closer to a mental exam. So you, if you're wearing a plaintiff hat, need to be advising prior to filing a complaint, prior to drafting the complaint, you need to be advising your client about what a mental exam would be, how intrusive it is, how much other discovery in terms of, particularly depositions and medical records, is opened up by rule 35, it being in controversy as opposed to at issue. It seems to me it's probably malpractice not to warn your client in advance of, number one, if you plead in the opening complaint, and IIED claim, that is intentional infliction of emotional distress claim, bingo, the in controversy requirement is satisfied. If you plead a negligent infliction of emotional distress claim, same thing.
That's it, end of discussion about in controversy, it's been satisfied. If I'm having a discussion with the client, it may go somewhat as follows, short of the long is, yeah, maybe we got the elements with IIED claim, they hardly get past dismissal, they rarely get past summary judgment, but most state courts, just, IIED claims go nowhere. That's been mostly the history in, for example, the District of Columbia where I am, Washington DC. I can only think of one exception in DC. We had a fairly recent IIED case where a noise making machine, you know, the infinite cruelty of man is beyond me, but a noise making machine was put immediately outside the office door of the plaintiff, and the court, at dismissal, very different than summary judgment or trial, at the dismissal stage, said that the placement of the noise making machine, the harassment of the plaintiff in that instance, that was enough to plausibly a dismissal plead claim of IIED. That's the only case I can think of in DC where an IIED claim has gotten off the ground, so you want to talk to your client about probably isn't gonna go anywhere, and if we plead it, you're real close to a mental exam, and let me tell you what a mental exam's all about, and it may include psychological testing, which we'll talk about. Negligent infliction, which also if pled kicks you into satisfying the in controversy requirement, you need to know your state law. States differ as to what the elements of a negligent infliction claim are, some requiring a physical injury, some not. Once again, you need to be having this discussion with your client. Basically, is it worth the candle? Yeah, maybe we got the elements, I've looked at our state law, I understand our state law, maybe we got the elements, but we have other claims.
Title seven of the '64 Civil Rights Act, the ADA, sex harassment, sex abuse, whatever. Maybe we don't need the negligent infliction claim, and when you see my discussion about garden variety, if we go the garden variety route, presumably we're not opening ourselves up, like a negligent infliction claim does, to a mental exam. Number two under the rule is if you make an allegation in the complaint or in discovery, deposition for a example, you make an allegation of a specific mental or psychiatric injury or disorder. The soup du jour these days is PTSD. Everybody's got PTSD. If you look at the DSM, the Diagnostic and Statistical Manual, which if you get into one of these cases, go buy it. You gotta have it. If the DSM, its diagnostic criteria for PTSD sets, if you will, a much higher threshold, it seems to me, than many treaters treating mental health folks, who I think throw around PTSD way, way too loosely. So if there's a claim of PTSD, or GAD, which is generalized anxiety disorder, both of which are, the diagnostic criteria are in the DSM, those are kind of the two favorites that you see a lot in these cases. It seems to me if either of them is pled or are alleged in some form of discovery, point two of rule 35 has been satisfied, a specific mental or a psychiatric injury or disorder has been alleged, and the in controversy requirement, once again, is satisfied.
Three is plaintiff claims unusually severe level of emotional distress or extremely high damages for emotional distress. I think I know what extremely high damages might be, but I have no idea what unusually severe level of emotional distress is. I think I know what, we'll talk about it in a minute, garden variety is, that's kind of the bottom of the scale, and I think I know the diagnostic criteria for PTSD, so let's just say that's the top of scale, but where's the in between that constitutes usually severe level of emotional distress? How far off garden variety do I go, where I fall into the trap of unusually severe? I don't know, and I don't think there's a lot of case law out there that would help you to define it, so it's an area you gotta be very careful with, what's gonna be in your complaint? What's your client gonna say at deposition? How do you, if your client wants to, how do you set this up to avoid the mental exam? Now, if you ask for extremely high damages, bingo, in controversy, and one of the reasons that discovery about emotional distress, mental exams, yada, yada, is all now a big, big deal in this area of practice in employment cases is because the jury verdicts on the emotional distress, lately, in the last few years, have just been, some of them have been just whoppers, lots of money, so if I'm the defense, I'm trying to get you to tell me how much money you're asking for is emotional distress, and if I'm plaintiff counsel, I'm shucking and jiving, I'm dodging every way I can think of, to answer your interrogatory about damages, but not give you a dollar number on emotional distress.
Fourth criteria that kicks you in the in controversy is you offer an expert testimony, not necessarily just an expert witness, expert testimony, and we'll talk a little bit about the treater and when the treater might cross the line into expert testimony. And then lastly, and this one's easy, if the plaintiff concedes that his or her mental condition is in controversy, then there's end of discussion. Good cause, it's more than mere relevance. Higher threshold than rule 26 relevance. If the plaintiff is putting the issue in controversy, makes it a heck of a lot easier to satisfy this standard, as opposed to if the defense is pushing the good cause in controversy issue. Then good cause is a little more difficult, because the burden is on the defense. As I said a few moments ago, good cause kind of goes with if in controversy is satisfied, it's the rare day that you see that in an in controversy satisfaction case, that there isn't a finding that it is good cause. As black letter of law, there is no need for expert testimony to establish the emotional distress of the plaintiff in one of these cases. There's just no deviation, no expert is required. Hence, I guess the creation, and read the rule once, read it twice, read it again. You won't find it there. Garden variety emotional distress, this is a creation by the judges. I don't know which one started it, but hundreds and hundreds and hundreds of cases now discuss garden variety emotional distress. For the most part, the majority rule is that if all the plaintiff is seeking is garden variety emotional distress, that doesn't satisfy in-controversy. You're not gonna get a mental exam.
Now, a lot of plaintiff lawyers go with garden variety, and in some cases they've gotten whopper jury verdicts in garden variety cases that haven't been cut, haven't been remitted, haven't been a remitter granted. I don't get it, and it certainly wouldn't be the way that I go with my clients. I mean, I'd discuss it, I'd let 'em know about what a mental exam's all about and how we can fall into the trap of you're gonna have to submit to a mental exam, but I would also explain, on garden variety it seems to me, with some judges, maybe not all, but some, you are at risk of the judge saying, well, we've defined garden variety emotional distress damages as basically what is commonplace. If somebody gets fired from their job, 99% of the folks who get fired, they are a little sad and a little blue and a little down, a little, as we use the word, not the DSM, as we use the word, a little depressed, for a period of time after being fired. That's commonplace. That's garden variety. So if I'm the judge in a garden variety case and I got the black robe on, and the jury comes back with a whopper of an award, I think some judges say to themselves, I'm gonna grant a remitter and I'm gonna cut this damage award, and maybe cut it dramatically, because this is at the end of the scale. This is what happens to practically everybody in terms of emotional distress if they get fired. If I'm gonna give a lot of money to this plaintiff in a garden variety case, good golly. I gotta recognize then that practically everybody who gets fired, if they got some sort of claim that can get 'em into a jury, that it's not outta line, it's not unconscionable, it doesn't shock the conscience of the court, to give a whopper of a jury verdict, even though it's the bottom of the scale, so I think that's the risk that the plaintiff is taking by pleading garden variety.
Now, I understand why it's done, because in most cases, the court will find that if it's garden variety then it's not in controversy and you don't get a mental exam, and that's one of the things you want to avoid. A few courts, minority, have held even in a garden variety case, it puts mental condition in controversy under rule 35. You'll see in the slide deck this kind of a string cite to former magistrate Judge John Facciola, from my home court here in DC, federal district court, and Judge Facciola had a strongly held opinion that you get a mental exam even in, it's in controversy under rule 35, even in a garden variety case. As a magistrate judge, understand that his rulings can be reviewed by the article three judge, and in some instances, the magistrate judge's holdings in that regard were overturned by the article three. Definitely a minority view.
Who can attend a mental exam? And early on, I think this is correct historically, we didn't have the kind of technology that we have today, obviously. We didn't have the ability with miniaturized devices to record, both visually and audibly, the discussion between the examiner, the forensic psychiatrist typically, and the plaintiff, the examinee. But we now have the technology to do that, but back then we didn't, so we want the plaintiff side, the person representing the person being, the examinee being examined, being mentally examined , if that's correct English, the person representing that wanted to keep the forensic examiner honest, keep 'em on the straight and narrow. And you know, there are some out there who have crossed the line, and who routinely cross the line, in engaging in questioning at the ME that is simply improper. Shouldn't be discussing liability issues, for example. But back in the day, and still, to a great extent, you don't know what the heck is taking place. You don't know what's being asked. You don't know what's being answered. Your client tells you one thing, what was asked and answered, the examiner says something else, and all you got is a swearing match between the two, 'cause there's no record of this.
So back in the day, the argument was made that the lawyer should be present, and that was, for the most part, a dead bang loser for lots of reasons. The psychiatric profession argued that the presence of the lawyer will disrupt the proceeding and it won't be the convivial, informal discussion that there would be. I mean, pretending this is not an adversarial proceeding, which it is. I mean, come on, with a few exceptions, the forensic is their gotcha, is trying to get information to put into a report to mitigate, diminish the power of the emotional distress claim. To say it's some other stressor that created this emotional distress, or this emotional distress is exaggerated, which I would challenge, as that's testimony going to credibility and is not admissible. So the argument was made the lawyer should be present. That is definitely a minority view. Few cases, the courts have held the lawyer can be present. This is under the federal rule. It's interesting. Under the state jurisprudence, there's a lot more findings by state judges that the lawyer can be present. I mean, no disrespect to anybody by saying that initially the argument was made, for the most part unsuccessfully, that the lawyer should be present. I made that argument back in 1990, so 32 years ago, and I won, and I convinced my judge to let me be present, and I'll tell you a quick story. Interesting, because as I said, there are some straight shooters out there, forensics who ask only the proper questions, and think it through under the diagnostic criteria and make a decision as to diagnosis properly. So my judge said yeah, Fitzpatrick can be present, and I sat there through it, didn't say a word, very quiet, not disruptive, and I said, kept him on the straight and narrow, but turned out, he actually was a straight shooter, and my presence really probably didn't make any difference at all. He just did it the right way.
It turned out, I learned later and became good friends with defense counsel, it turned out later that the forensic taking the exam was what I'll call forensic number two. The day before he got hired by defense, the day before, I had hired forensic number one, who I thought was the best guy in the area for this. The defense tried to get him. He said, "Sorry, I'm conflicted out. Fitzpatrick's hired me," so they go and hire forensic number two. Well, it turns out that forensic one and forensic two are best friends, and they've had, I mean, talking about best friends, they had had lunch together every week for like 20, 30 years, so I don't know the full story, this is probably apocryphal, but I think they met and they discussed the case. They agreed on the diagnosis. They agreed on what, number one, my guy, had said was the diagnosis, and bingo, case settled . So occasionally the forensic on the other side is a straight shooter, but that's a loser these days, lawyer being present. The argument that, I wouldn't even make that argument, the argument I would make, is given the technology we have, let's video and audio it. It's miniaturized. It isn't gonna disrupt anything at all. And in preparing for this, I tripped over the Journal of the American Academy of Psychiatry, and lo and behold, the author of the article I read in not a court ordered mental exam, but just a regular routine mental exam as the prelude to treatment, the authors, actually a whole bunch of 'em, of the article, talked about recording the ME, and not recording it for any reason except it's a good set of notes. And if I've recorded it, I don't have to go back to my recollection or my handwritten notes. I've got a recording also, so I can rely upon that in preparing my report. Nowhere in this is there anything about a recording is somehow gonna interfere with the integrity of the metal exam. I'm going to use that as my hammer from now on, that these should be recorded. The time limits on the ME, occasionally you'll get a judge to maybe put some outer limits, but usually your judge is just gonna say to himself, herself, maybe to you, "Psychiatry-shmiatry, I don't know anything about this. I'm not a psychiatrist. I don't know how long it takes. I don't know how long it's gonna take in this particular fact-intensive matter, so I'm just not gonna interfere. That's just not my place." And frankly, as long as it's not abused, I think that's probably the right way to think this through.
Does the plaintiff get compensated for his or her time at the mental exam on the federal rule? Nope. Under state rules, take a look at 'em, maybe. Can you challenge, if you're on the plaintiff's side, can you challenge whom the defense has selected as their forensic examiner? The answer is yes, if you can make a showing of bias, hostility, a history of bias in these cases, and so one of the first things you want to do once you know who the forensic is on the other side is get on your listservs to other practitioners, personal injury lawyers, other employment lawyers, and ask, what do you know about so and so? Do you have reports? Do you have depositions? Do you have trial testimony? And if you can show that this person, for example, 100% of the time testifies for the defense and has never found, in any of the many, many times he or she has testified, that the plaintiff had a valid claim of emotional distress arising out of the adverse action in the employment case, you're probably pretty close in a case like that to showing biased hostility, that this is not a fair minded person, and some of your judges is gonna kick the defense choice and say "Go back to the drawing board and find somebody else. This person is not a proper forensic."
Eventually you're gonna take presumably the deposition of the other side's forensic, and like us lawyers, these forensic psychiatrists are expensive, and you're gonna have to pay something, so can you challenge the rate being charged to you for the forensic's time? Yes, can the forensic be compensated for his or her time preparing for deposition? I think the majority rule on that issue is no, but there's a little bit of a split. Very fact intensive in terms of how much time has to be spent in preparing, but you certainly, for the time you have to pay, can challenge the rate as excessive, and if you can make a showing that it's excessive, then you may get it reduced. Let's talk about treaters. Big, big, big issue in employment cases right now. A, is the plaintiff being treated by someone? Hopefully so, because if not, that may bear on, is there a defense of failure to mitigate your emotional distress damages? That issue's not been pushed real hard by the defense. I don't quite understand why it hasn't. Seems to me that if you haven't sought any treatment at all, and you are claiming severe emotional distress and the defense can put on testimony, probably expert testimony, that this severe emotional distress could have been mitigated by your treatment, then maybe you got a mitigation issue if your court will permit it.
The first time this came up, I think it was federal court out in Minnesota, EEOC convinced the judge that there was no such defense under using a statutory interpretation, but let's assume the plaintiff is in treatment or ought to go to treatment, and you're counsel. Don't make the mistake of saying here's who I want you to go be treated by, because that's gonna come back to haunt you if it gets into evidence in front of a jury, 'cause the jury then may discount the credibility of the treater significantly, basically saying to themselves, come on, it's just another person bought and paid for by the lawyer. The lawyer recommended, steered the plaintiff, to this person. So let your client make their own decision. You may wanna reserve to yourself veto power. If they come back to you and they say, okay, I'm gonna select so and so and you say, oh my God, you know, you say to yourself, I can't think of anybody worse in terms of can't testify at all. It's just an awful witness in court, blah, blah, blah, blah. You know, whatever it may be. Then you may want to reserve veto power, but you don't say to the client, you know, "Listen, I want you going to see so and so. Here's who I want you to go see." Just send them back to the drawing board to find another person. Yeah, that's not gonna help you, the veto power in front of a jury, but it's not gonna be as bad, it seems to me, as you telling the client whom to select. So they're in treatment, and that's kind of the route many, many plaintiff lawyers have gone these days. The treater's cheap, the treater's not a forensic, I don't have to pay those high rates, and the treater is much more credible because the forensic is like any expert.
To some extent, the jury may discount the testimony as bought and paid for. I wanna call the treater. What can the treater testify to, and what impact does that decision have on disclosures and reports? The treater clearly can testify as a fact witness, as an occurrence witness, as what's called a percipient witness, can testify about what they observed. First meeting with the patient, 15 minutes long, and the person cried most of the time. That's just fact testimony. It's not expert testimony. It's not opinion testimony. It's fact testimony. No problem. I personally, there's kind of no hard and fast rules in this game, but for the most part, that's all I want from the treater, is I just want what they observed. That's enough for the jury. If that is further supported by testimony, by the spouse, family members, neighbors, coworkers, whatever, friends, then juries understand. They don't need a fancy dancy DSM diagnosis, and you don't want it, to me at least, normally from your treater, but some go to the second step and they get that fact testimony, but also they get the treater testifies that during the course of treatment, they arrived at certain opinions, they arrived at an opinion about causation. They arrived at an opinion about diagnosis. So, you know, if they really did that during the course of treatment, I think causation is seriously questionable as to whether treaters really do parse through the issues about causation.
But if that's the testimony, understand, you have set up the treeater for cross, maybe for a Daubert hearing also, as to whether this qualifies under Daubert as opinion, expert testimony that can be given, even though it is an opinion that the treater arrived at during the course of treatment. That that can be testified to, and you don't have to have the treater prepare what I'll call the long report, which a retained expert under the rules has to complete and file. And it's quite onerous. Most forensics of course have done this before, and if you're the defense, you don't wanna hire a forensic who doesn't have most of that long report already in their system. It's all your previous cases for the last umpteen whatever years. It's a very extensive report, but most forensics have been around that block many, many times and haven't, but so your treater who testifies that I arrived at these opinions during the course of treatment, doesn't have to do the long report, has to do what I call a short report, which is basically a summary of the facts and opinions. If I know my client has a treater, and I darn well ought to know this before we even file, then don't forget, under the rules, there are now initial disclosures that need to be made. I would make the treater disclose in those initial disclosures and would satisfy whatever my obligations are under the rule with respect to initial disclosures, with respect to the treater.
So early on, I wouldn't hide the treater. Then there's kind of a third circumstance with the treater, and that is treatment's taken place, the treater didn't arrive at any, well, let's just say defensible opinions, during the course of treatment, and you as the lawyer come into the picture and you say, "I now want you to testify about opinions, and I'm gonna give you documents, deposition, transcripts, so on. Would you review them, and using the proper criteria that you should use, give me your opinion about causation, diagnosis, whatever?" A, that probably opens you up to the long report, a retained expert report, and certainly, going back to initial disclosures, certainly the treaters should be disclosed just as early as possible. You don't want to get into a situation under the rules where your chief witness, and oftentimes in these cases now, excuse me, on an emotional distress, the treater is a huge, important witness. You don't want to get that witness barred by the court for failure to make disclosures, failure to make reports, failure to do these things on a timely basis. I'm just looking at, so on medical records, let me just say that there's a little bit of a dispute, in particularly a garden variety case, as to whether, which rule applies to discovery of medical records, 26 or 35. 26, that's just relevance. 35 is in controversy, good cause.
Frankly, I think, in my judgment, there's just no real issue there. It's rule 26, this is just at-issue discovery, but there's a little bit of a split in the courts out there. I think we're pretty close to, oh, medical records. You need to be aware, because you want to gather 'em early, and you need to be aware of the Ciox, C-I-O-X, versus Azar, opinion, from my home court, from this court in DC. It's a very bad decision for anyone trying to get medical records for their client. Jacks up the price significantly. There's a lot of literature out there online that may help you on this and get the cost down where it's not as onerous as it could be, but you want to get, on the plaintiff side, I wanna see medical records going back, to see if there's anything in there that shows evidence of this is an ongoing condition, it existed before the adverse action, it existed before the termination, and it's reported in the medical records.
Now I got kind of the eggshell plaintiff, so to speak. I got exacerbation, you know, did the adverse action in my case exacerbate a preexisting, well, I'll call it a mental condition, and one of the reasons I want all this is I'll have to disclose, presumably, an answer in interrogatory, for some time period, maybe back to square one, all doctors who have ever treated the client. What the defense is looking for and wants to get those medical records to see, if it's got something back there you can work with in terms of another stress or earlier reports of emotional distress. I want to avoid ex parte interviews, and the courts are all over the lot on ex parte interviews, and I think one of the motivators for decisions saying, by the judge, I'm gonna permit ex parte interviews, is the plaintiff lawyer has played what I'll call Go Fish with the defense counsel, and it has just said, "Here's my list of 20, 30 docs that my 60 year old client has seen over the last 40, 50, whatever years. You go figure out who I really care about." The defense goes to the judge and says, "We want ex parte interviews. We can't depose all these people. We can't afford it. You won't permit that many depositions, so give us ex parte interviews. I wanna say, "Yeah, you know, my client has seen, like anybody, a lot of doctors over his or her lifetime, but here is one, the two, whatever, that we're gonna rely upon," and so I'm not playing Go Fish, I'm being transparent, and that may reduce the possibility of an ex parte interview. Clinical psychiatric testimony in conjunction with an ME takes place not as frequently as you would think, but it does take place. The MMPI, and in second place is the Wechsler, are kind of the two tests, there's a lot of 'em, but those are the two that we see a lot, particularly the MMPI. The MMPI has a fake scale, a malingering, a fake bad, excuse me, scale on it. Presumably it kind of defines what is Fake Bad Scale testing for, you know, is the person exaggerating in their answers to those questions on the MMPI? There's some case law and a lot of literature out there about the Fake Bad Scale, a lot of literature that is not helpful to the defense. And then of course there is the credibility issue. Is the forensic trying to testify that, based upon the psychological testing, I think in my opinion the person was malingering, exaggerating. Isn't that a credibility judgment, and isn't that something that is reserved to the exclusive domain of the jury? That would certainly be my argument to our judge.
I'll close with this, and that is that amendment to the rule that I talked about at the beginning, which opens the door to voc rehab experts. As I said, just isn't used as much as I think it should be. Certainly, going back to our attendance issue, it seems to me the attendance of the lawyer at a vocal rehab examination of the plaintiff, is just, I don't know of any literature that suggests that the presence of the lawyer somehow interferes with that exam, as long as the lawyer is not disruptive. I don't see any literature out there that that would interfere with the vocal rehab's exam of the plaintiff. It may create a problem for the plaintiff's counsel being present, because then if there's some disagreement about what took place, maybe counsel has to testify, and then you get into the ethical dilemma of are you excluded from continuing to represent the plan? Your whole firm's kicked outta the case, somebody else, but voc rehab experts, it seems to me, if properly certified, they got their credentials, and in the profession there are credentials, so make sure if you're on the defense, you got somebody with credentials. Seems to me they could have a real impact on some juries in terms of the amount of damages, employability, skillset, it seems to me, it's a great opportunity right now, with it is a seller's market out there than it is a job applicant's market. There's a huge number of vacancies, people paying bonuses to people to hire them, even in the fast food industry. So voc rehab could have an impact on the jury, and certainly gives the defense a record to rely upon if a whopping verdict comes back on emotional distress and a whopping verdict comes back on front pay, that that employability, that voc rehab report, may give the judge some basis for a remitter to reduce the amount of the jury award.
So I appreciate your time and attendance today. I've enjoyed this a lot. I hope I've been of some help to you all in terms of how to practice when you're defending or seeking emotional distress damages in employment cases, and my email is [email protected] Don't hesitate to contact me by email. If you have any questions, any way I can be of help to you, appreciate it. Have a nice day. Goodbye.
Robert Fitzpatrick - Hello, I'm Bob Fitzpatrick, and I'm gonna talk for the next hour or so to you all about federal civil rule 35, mental exams in employment cases. That in and of itself was a mouthful.