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Barry v. Shell Oil Co.

United States District Court, D. Alaska

April 3, 2017

BLANE BARRY, Plaintiff,
v.
SHELL OIL COMPANY, ARCTIA OFFSHORE, LTD., SHELL OFFSHORE, INC.; and SAFETY MANAGEMENT SYSTEMS, LLC, Defendants.

          ORDER AND OPINION [RE: MOTION AT DOCKET 103]

          JOHN W. SEDWICK SENIOR JUDGE

         I. MOTION PRESENTED

         At docket 103, pursuant to Rule 35 of the Federal Rules of Civil Procedure, Defendant Arctia (“Arctia”) moves the court to compel Plaintiff Blane Barry (“Plaintiff”) to submit for an independent medical examination (“IME”) with psychiatrist Dr. Richard Roniger. Plaintiff responds at docket 106, and Arctia replies at docket 108. Oral argument was not requested and would not assist the court.

         II. BACKGROUND

         This matter arises out of a claim for personal injuries sustained by Plaintiff in August of 2012 while he was working aboard the M/V NORDICA, a vessel owned by Arctia. Plaintiff alleges in his complaint that he seriously injured his back and neck while lifting a heavy cable. He seeks damages for lost earnings, lost earning capacity, past and future medical expenses, and “physical and emotional pain and suffering and loss of enjoyment of life.”[1] Arctia sought to schedule Plaintiff for a psychiatric evaluation given his claims of emotional distress and evidence of Plaintiff's post-accident psychological and psychiatric treatment. Plaintiff objected to the evaluation. He does not agree that an IME is warranted because he argues that he is only claiming “garden variety” emotional distress damages.

         III. STANDARD OF REVIEW

         Rule 35 governs the court's determination of a motion for an IME. That rules states as follows:

The court where the action is pending may order a party whose mental or physical condition . . . is in controversy 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 . . . .[2]

         Under the rule then, Plaintiff's mental health examination is only warranted here if his mental condition is “in controversy” and if Arctia has shown “good cause” for requesting the examination.[3] These requirements “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.”[4]

         When determining whether a plaintiff's mental health is “in controversy, ” district courts in this circuit apply the multi-factor test set forth in Turner v. Imperial Stores.[5]Under the Turner test, the mental examination of a plaintiff is proper where that plaintiff alleges emotional distress and the case involves one or more of the following factors:

1) a cause of action for intentional or negligent infliction of emotional distress;
2) an allegation of a 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 ...

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