BELL v. LITTLE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

T. MONTANA BELL, RONNIE E. )

)

JOHNSON, ANGEL MALDONADO,

) Civil Action No. 2:22-cv-01516-CBB

KAREEM MAZYCK, and XAVIAR )

PAGAN, on their own behalf and on )

behalf of all others similarly situated, ) CHRISTOPHER B. BROWN

) United States Magistrate Judge

)

Plaintiffs, )

)

vs. )

)

PENNSYLVANIA DEPARTMENT OF )

)

CORRECTIONS, et al., )

)

Defendants. )

MEMORANDUM ORDER

I. Introduction

Presently before the Court are two related motions: the Motion for Mental

Examination of Plaintiffs filed by the Corrections Defendants (ECF No. 118) and

the Motion for Protective Order filed by Plaintiffs (ECF No. 125). The motions have

been fully briefed and are ripe for consideration.1

1 The relevant filings are: The Corrections Defendants Motion for Mental

Examination of Plaintiffs (ECF No. 118), the Declaration of Dr. Ryan Quirk (ECF

No. 118-1), the brief in support of the Motion for Mental Examination (ECF No.

119), and Plaintiffs’ Memorandum of Law in Partial Opposition to the Motion for

Mental Examination (ECF No. 127).

Plaintiffs’ Motion for Protective Order (ECF No. 125), the brief in support of

the Motion for Protective Order (ECF No. 128), the Corrections Defendants’

response in opposition (ECF No. 131), Defendant Saavedra’s Response to the Motion

for Protective Order (ECF No. 132), and Plaintiffs’ Reply Brief (ECF No. 137).

Courts seek to strike a balance between the ability of the physician to

conduct an examination free of distractions and unnecessary intrusions, and the

plaintiff’s right to be protected from improper procedures or questioning. Balancing

these considerations, as well as consideration of the parties’ arguments, the case

law relied upon by the parties, and the Court’s independent research, the Motion for

Mental Examination of Plaintiffs will be granted and the Motion for Protective

Order will be denied.

II. Background

This is a putative class action brought by five named individuals on their own

behalf and on behalf of all others similarly situated. Their allegations relate to the

use of the Security Threat Group Management Unit (“STGMU”) at SCI-Fayette.

According to Plaintiffs, the STGMU held 30 to 50 men at any given time in

indefinite solitary confinement. Plaintiffs allege that their prolonged social

isolation and the denial of adequate mental health treatment led to aggravation of

existing mental illnesses and development of new, likely permanent, psychological

injuries, as well as frequent acts of self-harm and suicide attempts.

The parties dispute the nature and extent of the mental health conditions of

each named Plaintiff, any exacerbation of those conditions, and any causal

connections asserted by Plaintiffs.

III. The Motions

The Corrections Defendants seek to have an expert in psychology, Ryan

Quirk, Ph.D., conduct a comprehensive and individual mental health examination

of the five named Plaintiffs. (ECF No. 118). Plaintiffs generally are not

challenging this request. (ECF No. 127).

That said, Plaintiffs have moved for a protective order (ECF No. 125) asking

the Court to allow (1) Plaintiffs’ counsel to be present during the video examinations

and (2) the examinations to be audio and video recorded. The Corrections

Defendants oppose both requests. (ECF No. 131). They have submitted a

declaration from their expert psychologist, Dr. Ryan Quirk, outlining why a request

for the presence of a third party is inappropriate. (ECF No. 118-1). The Corrections

Defendants also state that Dr. Quirk does not consent to being recorded. (ECF No.

131). Alternatively, the Corrections Defendants argue that if Plaintiffs’ counsel is

permitted to be present, defense counsel also must be permitted to be present, an

argument Plaintiffs do not oppose. Co-Defendant Dr. Peter Saavedra has joined in

the Corrections Defendants’ opposition to Plaintiffs’ motion for a protective order

and also requests that if the Court permits Plaintiffs’ attorneys to observe the

examinations, then the Court also permit Dr. Saavedra’s attorney to observe. (ECF

No. 132).

IV. Legal Standards

A. Physical and Mental Examinations

Federal Rule of Civil Procedure 35(a) governs physical or mental

examinations of parties. It grants courts discretionary authority to 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.” Fed.R.Civ.P.

35(a)(1). Courts will order an examination “for good cause shown.” The burden of

demonstrating good cause rests with the moving party. Once the right to take a

Rule 35 examination has been established, the burden then shifts to the party

seeking the participation of an observer at the examination to demonstrate “good

cause,” or special circumstances, for the third party’s presence.

B. Protective Orders

Federal Rule of Civil Procedure 26(c)(1) permits a party from whom discovery

is sought to move for a protective order. The court may, for good cause shown, issue

an order to protect a party from annoyance, embarrassment, oppression, or undue

burden or expense, including designating the persons who may be present while the

discovery is conducted. Fed.R.Civ.P. 26(c)(1). The court has almost complete

discretion in determining what constitutes “good cause,” and such determinations

are rarely disturbed on appeal. In general, a court should balance the need of the

party seeking the discovery against the burden on the party responding. The party

seeking the protective order has the burden of showing that good cause exists by

stating particular and specific facts.

V. Discussion

A. The Corrections Defendants’ Motion for Mental Examination

The Corrections Defendants seek to have an expert conduct psychological

examinations of the five named Plaintiffs. The examinations would be in a one-on-

one, face-to-face setting through virtual means and would last up to four hours.

There is no dispute that Plaintiffs’ mental health conditions are “in

controversy” and Plaintiffs’ counsel does not dispute the appropriateness of a Rule

35 psychological examination. Rather, Plaintiffs seek to impose certain conditions

on the examinations, which requests are addressed below. The Court finds that the

Corrections Defendants have established good cause. The burden now shifts to

Plaintiffs to show “good cause,” or special circumstances, for counsel to be present

during the examinations and for the examinations to be recorded.

B. Plaintiffs’ Motion for Protective Order

While Plaintiffs generally agree to the examinations, they have asked the

Court to exercise its discretion and regulate two procedural aspects of the

psychological examinations of the Plaintiffs: (1) to allow Plaintiffs’ counsel to be

present during the examinations and (2) to allow the examinations to be recorded.

At the outset, the Court notes there is no controlling precedent in the Third

Circuit on either of these requests. Further, none of the cases cited by the parties

involve a situation akin to what is at issue – i.e., the examinations of incarcerated

individuals.2

Plaintiffs argue that because Rule 35 is silent on the presence of counsel, the

Court should look to Pennsylvania Rule of Civil Procedure 4010 for guidance, the

2 T. Montano Bell is currently housed in the Intensive Management Unit at

SCI Phoenix, Ronnie Johnson is currently housed in general population at SCI

Houtzdale, Angel Maldonado is currently housed in general population at SCI

Camp Hill, and Xavier Pagan is currently housed in general population at SCI

Fayette. Kareem Mazyk was released from DOC custody on December 23, 2022.

All five named plaintiffs were incarcerated in the STGMU at SCI Fayette when the

initial complaint here was filed. (ECF No. 131, pp.1-2).

state counterpart to Federal Rule 35, which permits counsel for a party to attend a

mental examination.3 The Court finds this argument to be unpersuasive.4 At least

three courts within the Third Circuit have declined to follow Pennsylvania Rule

4010 in favor of the prevailing federal practice under Rule 35 of excluding third

party observers. See, e.g., Smolko v. Unimark v. Lowboy Trans., LLC, 327 F.R.D.

59, 63 (M.D. Pa. 2018); King v. Mansfield Univ. of Pennsylvania, No. 1:11-CV-1112,

2014 WL 563323, at *3 n. 1 (M.D. Pa. Feb. 11, 2014); M.S. v. Cedar Bridge Acad.,

No. 1:08-CV-2271, 2011 WL 1838885, at *4 (M.D. Pa. May 13, 2011). The Court

finds the reasoning of these sister courts to be sound and will likewise decline to

follow Pennsylvania Rule of Civil Procedure 4010.

The Court now turns to Plaintiffs’ arguments that special circumstances and

good cause exist for the granting of their request for a Protective Order.

3 Rule 4010(4)(i) provides “The person to be examined shall have the right to

have counsel or other representative present during the examination” and

subsection 5(i) provides “[t]he party who is being examined . . . may have made

upon reasonable notice and at the party’s expense a stenographic or audio recording

of the examination.”

4 In support of this argument, Plaintiff’s rely on Gensbauer v. May Depart.

Stores Co., 184 F.R.D. 552 (E.D. Pa. 1999) (finding Rule 4010 persuasive authority

for the proposition that counsel should be present at these examinations). (ECF No.

127). An important distinction, however, exists between Gensbauer and the instant

case. Gensbauer was a diversity case and plaintiff’s cause of action arose purely

under state law. Here, this case is federal question case, not a diversity case, and

Plaintiffs’ causes of action arise purely from allegations of constitutional violations

and violations of federal statutes.

A. The Request of Plaintiffs’ Counsel to Attend the Examinations

While the Court of Appeals for the Third Circuit has not weighed in on this

issue, the “majority rule” adopted by federal courts, including those in the Third

Circuit, is that the court may, and often should, exclude third-party observers,

including counsel, from medical or psychiatric evaluations, absent special

circumstances.5 See King v. Mansfield Univ. of Pennsylvania, Civil No.: 1:11-cv-

1112, 2014 WL 563323, at *3 (M.D. Pa. 2014) (“While Rule 35 does not, by its terms,

specify who may attend such a psychiatric examination, the majority rule adopted

by federal courts, including those in the Third Circuit, is that the court should

exclude third-party observers, including counsel, from medical or psychiatric

evaluations.” ).

Courts have declined to permit a third-party observer or recording device

where the requester’s argument is based on the inherently adversarial nature of the

examination, the fact that the examiner was selected by opposing counsel, or the

fear that the examination will become a de facto deposition. Cato v. Twp. of

Andover, Civil Act. No. 16-4605, 2018 WL 1639692, *3 (D.N.J. 2018). Courts have

further declined requests where the argument is based on the theoretical potential

for misconduct, id., and the desire to obtain an accurate account. Cato, 2018 WL

1639692, *4.

5 Special circumstances have been found where the examinee is a minor, does

not speak the relevant language, or suffers from a disability that might impair his

or her ability to communicate to counsel what occurs during the examination. In re

UV Logistics, LLC, 682 S.W.3d 612, 623 (Tex. App. 2023) (collecting cases).

Plaintiffs argue special circumstances and good cause exists to allow

counsel’s presence at the depositions because:

(1) counsel’s presence is necessary due to the

adversarial nature of the examinations and Plaintiffs’

histories of mental illness and prolonged solitary

confinement. Memo. at 5 (ECF No. 127);6 and

(2) counsel’s presence will not interfere with the

examinations as counsel will be “passive observers” with

both their cameras and microphones turned off and

counsel will not interfere during the examination.

The Corrections Defendants respond that litigation is “inherently

adversarial” and “[i]t is clear that Plaintiffs’ counsel intends to take some sort of

participatory role in the evaluation, which undermines the private nature of the

evaluation and inserts adversity into what is supposed to be a controlled evaluation

by a licensed psychologist.” Defs’ resp. at 6.

Starting with the presumption against the presence of third persons at

psychological examinations, and after considering Plaintiffs’ arguments that special

circumstances and good cause exists, and balancing the needs of the Defendants in

seeking these depositions against the burden on Plaintiffs, see M.S. v. Cedar Bridge

Military Acad., Civil Act. No. 1:08-cv-2271, 2011 WL 1838885 (M.D. Pa. May 13,

2011) (collecting cases), the Court will follow the majority rule adopted by federal

courts, including those in the Third Circuit:

6 Plaintiffs argue that counsel’s presence is essential “in light of Plaintiffs’

prolonged periods of incarceration, years of solitary confinement and mental health

conditions, all of which present serious challenges to their trusting and

meaningfully participating in evaluations conducted by an expert in the employ of

Defendants.” (ECF No. 128); see also Reply Brief (ECF No. 137).

[T]he need for effective psychiatric examinations militates

against allowing an observer who could potentially

distract the examining psychiatrist and exam[] thereby

compromising the results of the examination. Moreover,

the presence of the observer interjects an adversarial,

partisan atmosphere into what should be otherwise a

wholly objective inquiry. See Jacob v. Chaplin, 625 N.E.2d

486, 492 (Ind. App. 1993). Additionally, it is recognized

that psychological examinations necessitate an

unimpeded, one-on-one exchange between the doctor and

the patient. Tomlin v. Holecek et al., 150 F.R.D. 628, 632

(D. Minn. 1993); Cline v. Firestone, 118 F.R.D. 588, 589

(S.D.W. Va. 1988); Brandenberg v. El Al Israel Airlines,

79 F.R.D. 543, 544 (S.D.N.Y. 1978); Swift v. Swift, 64

F.R.D. 440, 443 (E.D.N.Y. 1974). The Court finds that the

presence of an observer would lend a degree of artificiality

to the examination that would be inconsistent with the

applicable professional standard.

Smolko v. Unimark Lowboy Trans., LLC, 327 F.R.D. 59, 61-62 (M.D. Pa. 2018)

(quoting Shirsat v. Mutual Pharm. Co., 169 F.R.D. 68, 71 (E.D. Pa. 1996)). See also

Cato v. Twp. of Andover, Civil Act. No. 16-4605, 2018 WL 1639692, *3 (D.N.J. 2018);

R.D. v. Shohola Camp Ground and Resort, Civil No. 3:16-cv-1056, 2017 WL

1036475, *1 (M.D. Pa. Mar. 17, 2017). The Court finds that there are sufficient

safeguards to ensure fairness and validity: the individual plaintiffs will have

personal knowledge of how the examinations were conducted, the examiner is

required to provide an expert report to Plaintiffs’ counsel, Plaintiffs’ counsel will

have the opportunity to depose the examiner and cross-examine the examiner at

trial, and Plaintiffs have the opportunity to arrange for psychological examinations

by their own expert(s) and can submit contrary evidence. See Cristino v. Berkshire

Life Ins. Co. of Am., Civil Action No. 10-3506, 2011 WL 13151979, at *2 (D.N.J.

2011) (noting that “many federal courts have held that the presence of a third party

or recording device . . . subverts the purpose of Rule 35” because each party is on

equal footing since they can conduct their own evaluation without interference from

the other.).

Thus, Plaintiff’s request for counsel to be present during the psychological

examinations will be denied.

B. The Request for the Examinations To Be Recorded

Plaintiffs make two arguments in support of their request that the

examinations be video and audio recorded: (1) psychological exams rely on physical

observations that can be verified only through video and (2) there is no additional

cost for video recording. The Corrections Defendants respond that Plaintiffs have

not shown that a specific need exists for recording and recording places undue

burdens on Corrections Defendants. Corr. Defs’ Response at 10 (ECF No. 131).7

The Court finds that Plaintiffs have not met their burden to show special

circumstances or good cause exists for the recording of the examinations. “Trust

between examiner and examinee is one of the essential underpinnings of valid and

reliable testing.” Matchett v. Nelson-Hughes, Civil No. 2022-43, 2024 WL 1994046,

at *4 (D.V.I. May 6, 2024). The Court finds that the recording of the examinations

will be distracting and impede the one-on-one communication between Plaintiffs

and the examiner. Again, counsel will receive a copy of the expert report and will

7 The Court notes that to the extent the Corrections Defendants’ arguments

presume that all class members will be examined, the class has not been certified

yet and the only examinations at issue presently are the examinations of the five

named Plaintiffs.

have the opportunity to challenge any alleged gaps in integrity and accuracy.

Further, Plaintiffs may seek to exclude all or part of the expert’s report, and will

have the opportunity to introduce contrary expert evidence. Thus, Plaintiff’s request

for the examinations to be recorded will be denied.

For all these reasons, the Motion for Mental Examination will be granted and

the Motion for Protective Order will be denied. An appropriate Order follows.

ORDER

AND NOW, this 5th day of August, 2024, it is hereby ORDERED as follows:

1. The Corrections Defendants’ Motion for Mental Examination is

GRANTED. Defendants’ expert psychologist is permitted to perform individual

mental examinations of Plaintiffs Bell, Johnson, Maldonado, Mazyck, and Pagan,

consistent with Federal Rule of Civil Procedure 35.

The examination will be conducted via a face-to-face virtual interview, and

containing questions within the usual scope of medical practice for the purpose of

assessing Plaintiffs’ overall mental health. Each examination shall not exceed four

(4) hours.

2. Plaintiffs’ Motion for Protective Order is DENIED. No counsel are

permitted to be present for the examinations and the examinations shall not be

audio or video recorded.

BY THE COURT:

s/Christopher B. Brown

Christopher B. Brown

United States Magistrate Judge