The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
Counsel for the parties appeared before the undersigned United States Magistrate Judge on February 11, 2000 for a hearing on defendant's Motion for Entry of a Protective Order ("Def.'s Mot.")(Docket No. 14) and Plaintiff's Cross Motion for a Protective Order ("Pl.'s Mot.")(Docket No. 16). The subject of the cross motions for protective order is an independent psychiatric examination of plaintiff ("the examination"). *fn1 Defendant seeks an order precluding plaintiff from having her attorney present and recording the examination. Memorandum of Points and Authorities in Support of Defendant's Motion for the Entry of a Protective Order ("Def.'s Mem.") at 6. By her cross motion, plaintiff seeks an order allowing her counsel to be present at the examination and allowing her to record the examination. Memorandum of Points and Authorities in Support of Plaintiff's Cross Motion for a Protective Order and in Response to Defendant's Motion for a Protective Order ("Pl.'s Mem.") at ¶ 12. Plaintiff also requests the following "additional safeguards": (1) that the examiner be precluded from asking any questions concerning the accident, and restrict his examination to prior and subsequent mental history; (2) that the examiner be required to supply counsel with a copy of any notes the examiner takes during the examination, a typewritten copy of any handwritten notes and the raw data of any tests performed; (3) that the examiner be required to provide copies of tapes if the examiner routinely records examinations for his own use; (4) that the examination be by interview only and that the plaintiff not be required to complete any form, questionnaire or interrogatory; and (5) that the examination be limited to three hours. Pl.'s Mem. at ¶ 13.
Plaintiff is the mother of Tyri Hammond, a six year old boy who died from injuries sustained during an accident on a Metro train on February 5, 1999. Tyri was separated from his mother when he boarded a Metro train and his mother remained on the platform. He attempted to cross between cars to get closer to his mother on the platform and sustained fatal injuries. Plaintiff filed suit against the Washington Metropolitan Area Transit Authority ("WMATA") on July 15, 1999 on her own behalf and as the personal representative of Tyri Hammond. Plaintiff seeks damages for Tyri's pain and suffering (Count I ); loss of consortium (Count II); wrongful death (Count III); a survivor's action (Count IV); and negligent infliction of mental anguish, on a bystander theory of liability (Count V).
Plaintiff concedes that the defendant has the right to conduct the psychiatric examination of plaintiff pursuant to Rule 35 of the Federal Rules of Civil Procedure. Pl.'s Mem. at ¶ 1. In her written memorandum, plaintiff repeatedly maintains that the examination "could easily be transformed into a de facto deposition." Id. at ¶ 5. As the basis of her motion for a protective order, plaintiff states that she is currently pregnant and expecting the delivery of her child in early March. The stress of the accident coupled with her late term pregnancy puts her in a debilitated condition. She is no match for an experienced psychiatrist who may deliberately or inadvertently seek to explore areas not relevant or material to arriving at a diagnosis which could leaf to difficulties for the plaintiff in the on-going litigation. Pl.'s Mem at 5-6.
At the hearing before the undersigned, counsel for the defendant agreed that given plaintiff's condition and the absence of a firm trial date, the examination of the plaintiff could take place after she gives birth. When the undersigned specifically asked counsel for the plaintiff to articulate any need for the accommodations requested other than her pregnancy, counsel stated that defendant "should not have a second opportunity to depose the plaintiff."
In defendant's consolidated Opposition to Plaintiff's Cross-Motion for a Protective Order and Reply to Plaintiff's Response to WMATA's Motion for a Protective Order ("Def.'s Opp'n")(Docket Nos. 18 and 19), defendant asserts that "[t]here is absolutely no basis to support" the allegations that its expert psychiatrist, Dr. Berger, will attempt to take advantage of plaintiff's emotional condition or trick her into making some admission against her interest." Def.'s Opp'n at 1. Plaintiff further asserts that
"[o]ne of the threshold questions regarding her psychiatric claim is the origin ('s) of her condition[,]" and that Dr. Berger like any other physician has a right to take a history from Ms. Abdulwali regarding how she believes the incident occurred and any part she may have played which resulted in the tragic event in order to form his opinion as to the sole or multiple causes of Ms. Abdulwali's present emotional state. Id. at 2.
For the reasons set forth below, the undersigned finds that plaintiff has failed to demonstrate that the protections she seeks are warranted. Accordingly, her motion for protective order will be denied.
The precise issue of the presence of counsel during a psychiatric or medical examination has not been addressed by this Court in any published opinion. Defendant relies upon the Memorandum Order in Cassano v. Washington Metro. Area Transit Auth., Civ. A. No. 92-16285 (Super. Ct. D.C. August 31, 1993)(Burnett, J.), in which the court granted defendant WMATA's motion for a physical examination and denied plaintiff's request to have his counsel present during the examination. The court concluded that
it is this Court's view that allowing [counsel's] observance should not be permitted, except in the rare and exceptional cases. Defense counsel or other observers are not normally present when a plaintiff is examined by his or her own physicians and this Court is of the view that there should be equality of treatment between litigants, barring a showing of exceptional need to depart from this principle. Cassano, Civ. A. No. 92-16285 at 1.
While the federal courts which have considered this issue are divided, the "greater weight of authority favors the exclusion of the Plaintiff's attorney from the conduct of a Rule 35 examination." Tomlin v. Holecek, 150 F.R.D. 628, 631 (D. Minn. 1993)(surveying authority and holding that plaintiff was not entitled to have her counsel present during psychological examination); see also Cline v. Firestone Tire & Rubber Co., 118 F.R.D. 588 (S.D. W. Va. 1988)(holding that plaintiff not allowed to have attorney present during neuropsychological examination); Brandenburg v. El Al Israel Airlines, 79 F.R.D. 543 (S.D.N.Y. 1978)(holding plaintiff not entitled to have her attorney present during psychiatric exam); Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595, 598 (D. Md. 1960)(holding that "[t]he presence of the lawyer for the party to be examined is not ordinarily either necessary or proper; it should be permitted only on application to the court showing good reason therefor"). But see Vreeland v. Ethan Allen, 151 F.R.D. 551 (S.D.N.Y. 1993)(holding that authorizing ...