In Boadi v. Center for Human Development, et al. (Civil Action No. 3:14-cv-30162-KAR), the court held that Defendants’ motion to compel a psychological examination of the plaintiff pursuant to Rule 35(a) of the Federal Rules of Civil Procedure should be denied because a Rule 35 examination is not necessary for expert evidence purposes.
Plaintiff sued Defendants, her former employers, for interference with her rights under the Family Medical Leave Act (“FMLA”). Plaintiff tendered a fitness-for duty certification from her health care provider stating that she could return to work on May 25, 2013, prior to the expiration of the 12-week FMLA leave period, with no restrictions. The court explained that “as long as the employer has a uniform policy, it may require all similarly situated employees to obtain and present certification from the employee’s health care provider that the employee is fit to resume work…. But, no second or third opinion on a fitness-for-duty certification may be required.” Thus, the issue was not whether Plaintiff could perform the essential functions of her job; rather, it was whether Plaintiff was capable during her hospitalization of complying with the Defendants’ policy requiring that she personally notify her employer of her absence due to illness, and whether Plaintiff’s son provided sufficient information to the Defendants to put them on notice that Plaintiff was suffering from a serious health condition entitling her to FMLA.
Defendants’ motion alleged that Plaintiff had placed her mental condition in controversy and sought to determine whether Plaintiff was able to perform the essential functions of her job in April and May 2013 and thereafter. The court explained that “A compelled Rule 35(a) mental status examination is intrusive and should not be ordered as a matter of course. A so-called ‘garden variety’ claim of emotional distress, for example, does not justify an order requiring a Rule 35(a) examination.” The court held that a factfinder would be required to determine whether Plaintiff was capable of complying with the Defendants’s call-in policy while she was hospitalized. However, in lieu of a psychological examination, the court held that the Defendants’ experts had access to Plaintiff’s medical record from that period as part of discovery.