UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Katherine Gatsas

v. Civil No. 05-cv-315-SM

Manchester School District

O R D E R

 Plaintiff has sued her former employer alleging gender

discrimination, retaliation and wrongful/retaliatory discharge. 

Defendant moves to compel production of plaintiff’s psychological

records (Dr. Hindy records) and for a Rule 35 examination. 

Plaintiff objects alleging that she seeks only “garden variety”

emotional distress damages and that she has not placed her

psychological condition or treatment in issue. 

Discussion

Fed. R. Civ. P. 35(a) provides, in pertinent part: 

When the mental or physical condition . . .

of a party . . . is in controversy, the court

in which the action is pending may order the

party 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 shown

. . . .

The party seeking to compel the evaluation has the burden of

“affirmatively establishing the ‘in controversy’ and ‘good cause’

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requirements.” Ford v. Contra Costa County, 179 F.R.D. 579, 579

(1998) (citing Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964)). 

Applying the Schlagenhauf “in controversy” test, federal

courts have considered whether one or more of five factors are

present: 

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. the

plaintiff’s offer of expert testimony to

support a claim of emotional distress; and/or

5. the plaintiff’s concession that her mental

condition is ‘in controversy’ within the

meaning of Rule 35. 

See O’Sullivan v. State of Minnesota, 176 F.R.D. 325, 328

(D.Minn. 1997); Bethel v. Dixie Homecrafters, Inc., 192 F.R.D.

320, 322 (N.D.Ga. 2000). 

None of the four causes of action set forth in the writ is

an action for intentional or negligent infliction of emotional

distress. The writ does not allege any specific mental or

psychiatric injury or disorder. Furthermore, plaintiff does not

claim any unusually severe emotional distress and will claim only

the ‘garden variety’ mental anguish . . . (and she) does not

propose to offer expert testimony to support her claim of

emotional distress, but merely to testify . . . to his factual

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1If Dr. Hindy is to testify, plaintiff is to set forth in

writing a brief statement on outline of his testimony within the

next thirty (30) days. Defendant may then depose him and may

examine any records of visits upon which the testimony is based. 

Thereafter, a new motion, if appropriate, may be filed. 

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observations of her during that time.” Document no. 10, ¶ 20. 

At first blush this appears to be garden variety emotional

distress but it is less clear when the reference to Dr. Hindy’s

projected testimony is considered. Plaintiff cannot have it both

ways - either Dr. Hindy will testify about observed psychological

conditions or he won’t. It simply is not clear. If plaintiff

clearly waives all but garden variety mental anguish then the

motion should be denied. Based upon the objection it appears

that that is what she is doing. I therefore deny the motion but

without prejudice to renew if plaintiff does not make a written

waiver of all emotional damages except mental anguish.1 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 17, 2006

cc: Leslie H. Johnson, Esq.

 Kathleen C. Peahl, Esq.

Case 1:05-cv-00315-SM Document 11 Filed 05/17/06 Page 3 of 3