Opinion
Civil No. 00-5765 (JBS).
December 11, 2003
Thomas McKay, III, Esquire, W. Scott Magargee, Esquire, COZEN O'CONNOR, Cherry Hill, New Jersey, Attorneys for Plaintiff Joseph Bowen.
Hannah Schwarzschild, Esquire, William L. Bowe, Esquire, Patricia V. Pierce, Esquire, WILLIG WILLIAMS DAVIDSON, Haddonfield, New Jersey, Attorneys for Plaintiff Thomas Del Rosario.
Thomas J. Hagner, Esquire, David Haworth, Esquire, KENNEY KEARNEY, LLP, Cherry Hill, New Jersey, Attorney for Defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton.
OPINION REGARDING MAGISTRATE APPEAL AND MOTIONS FOR RECONSIDERATION
The present case involves the allegations of two plaintiffs that defendants, who were all commissioners or employees of The Parking Authority for the City of Camden in the late 1990s, terminated their employment at the Parking Authority, and then continued to threaten and intimidate them after their termination, as retaliation for their complaints about unethical, illegal, and discriminatory activities at the Parking Authority. The factual history of the case was detailed in a September 18, 2003 Opinion of this Court. See Bowen v. Parking Auth. of City of Camden, Civ. No. 00-5765, 2003 WL 22145814 (D.N.J. Sept. 18, 2003).
Presently before this Court are two pending matters. The first is an appeal filed by defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton of Magistrate Judge Joel B. Rosen's April 4, 2003 decision in which he denied their motion to compel plaintiff Joseph Bowen to submit to a psychiatric examination. The second is a set of three cross-motions for reconsideration, one filed by the same defendants, one filed by plaintiff Joseph Bowen, and one filed by plaintiff Thomas Del Rosario, seeking reconsideration of this Court's September 18, 2003 decision that the conspiracy claims at issue in this lawsuit are not collaterally estopped by a decision that was previously entered in a factually-related action in state court.
The Court has considered the submissions of the parties, including the November 26, 2003 arguments of the parties regarding the magistrate appeal, and has concluded, for the following reasons, that Magistrate Rosen's decision must be affirmed because defendants have not shown that there is good cause for the proposed examination. The Court further finds that reconsideration should be granted on the collateral estoppel decision and that, upon reconsideration, the claims are not collaterally estopped, albeit for different reasons that those articulated in the September 18, 2003 Opinion.
I. BACKGROUND
In a September 18, 2003 Opinion, this Court detailed in length the allegations and factual evidence presented in this lawsuit to support plaintiffs' claims that the defendants terminated their employment and retaliated against them because they "blew the whistle" on illegal and discriminatory practices at the Parking Authority of the City of Camden. See Bowen v. Parking Auth. of City of Camden, Civ. No. 00-5765, 2003 WL 22145814 (D.N.J. Sept. 18, 2003). The Court will not repeat the factual history of this case here, except as it applies to the present matters.
A. Plaintiff Bowen's Mental Condition
In the present magistrate appeal, defendants assert that "plaintiff Bowen has placed his mental state directly in issue" in this case, (Defs. Br. at 1), so that he should be required to submit to a psychological medical examination ("IME") by Dr. David Scasta and to an objective personality assessment (the MMPI — Minnesota Multiphasic Personality Inventory) by Dr. William Campagna. It is undisputed that plaintiff Bowen has made no claims for emotional distress and seeks no damages for emotional harm in this lawsuit. It is also undisputed that plaintiff Bowen asserts that he was unable to report to work at the Authority after June 29, 2000 because he was advised by his physician to stop because the "increase in stress at his job . . . had caused an exacerbation of Mr. Bowen's symptoms of depression." Defendants argue that this was not the actual reason for his failure to report, that he was not "sick," and that they thus had a legitimate reason to discharge him because he had violated the Authority's sick leave policy.
Mr. Bowen initially agreed to undergo an IME and the examination was scheduled with Dr. Scasta for December 4, 2002. (Defs. Br. at 2.) On December 3, 2002, though, Mr. Bowen's attorney, Thomas McKay, Esquire, sent a letter to Magistrate Judge Rosen objecting to the examination, arguing that there was no good cause to require Mr. Bowen to submit to the examination because he has not placed his mental state in controversy in this case. (Haworth Cert., Ex. 3 at Ex. E.) In response, Magistrate Judge Rosen issued an Order on December 3, 2002 compelling plaintiffs Bowen and Del Rosario to submit to Dr. Scasta's and Dr. Campagna's examinations. (Haworth Cert., Ex. 3 at Ex. F.) Plaintiffs' complaint, at that time, included allegations that Bowen and Del Rosario "continue to suffer severe emotional distress [and] mental anguish." (Pl. Br., Ex. B.)
On December 4, 2002, plaintiff Thomas Del Rosario submitted to the examination as ordered. Plaintiff Bowen did not submit to the examination, but instead contested its appropriateness in a December 4, 2002 conference call with Magistrate Judge Rosen. During the call, he agreed to voluntarily dismiss all claims for damages relating to ongoing mental distress, but did not agree to withdraw his intention to produce at trial Dr. Prabhaker Patel, his treating physician who had advised him to stop working at the Authority in June 2000. Defendants asserted that plaintiff's mental condition would be in controversy as long as Dr. Patel was going to testify, so they would continue to seek an IME.
At the conclusion of the December 4, 2002 conference call, Magistrate Judge Rosen decided to stay his Order compelling Mr. Bowen's examination so the defendants could file a formal motion to compel Bowen to submit to a psychiatric IME pursuant to Fed.R.Civ.P. 35. Defendants filed their motion on January 6, 2003, and Judge Rosen heard oral argument on February 21, 2003.
In an Order filed April 4, 2003, plaintiff Bowen officially stipulated to the dismissal of all claims for ongoing emotional distress to "clarify plaintiff, Joseph Bowen's position that he is not asserting any claim for continuing emotional distress, mental anguish or any other mental injury with respect to the causes of action and allegations set forth in his amended Complaint filed in the above-captioned matter." (Pl. Br., Ex. B.) Plaintiff Del Rosario continues to assert such claims and has represented to the Court that he did not contest his IME for this reason.
On April 4, 2003, Magistrate Judge Rosen filed the Opinion and Order that defendants challenge here, in which he denied defendants' motion to compel the psychiatric examination of Bowen. He found that Bowen's mental state is not "in controversy" in this case because he had withdrawn all claims for ongoing emotional distress and was not asserting claims for any "specific psychiatric malady" or "unusually severe emotional distress."See Bowen v. Parking Authority, 214 F.R.D. 188, 194 (D.N.J. 2003). Magistrate Rosen further noted that while he did not need to rule on the issue of good cause because plaintiff's mental state was not in controversy:
the examination planned by the defendants was sweeping in scope. The doctors intend to obtain a full psychological profile of the plaintiff such that Dr. Scasta may opine on the plaintiff's medical condition at any time in his life. (See Scasta Affid. at ¶ 4.) The sweeping scope of the request is a further indication of the impropriety of the examination.Id. at 195 n. 7.
Defendants filed an appeal of the April 4, 2003 decision on May 2, 2003 pursuant to Local Civil Rule 72.1c(1)(A), and the Court heard oral argument on the appeal on November 26, 2003.
The appeal was filed one week after the deadline established for appeals of Magistrate decisions by Local Civil Rule 72.1c(1)(A). Plaintiff Bowen contested the appeal on timeliness grounds, and the Court, in an October 3, 2003 Memorandum Opinion, excused defendants' late filing and allowed the appeal to proceed. (See [Docket Item 266-1]).
B. Conspiracy Allegations
In this Court's September 18, 2003 Opinion, the Court explained the conspiracy allegations of plaintiffs Bowen and Del Rosario and their relation to another lawsuit filed by another Parking Authority employee, Felix Melecio, in the New Jersey Superior Court, Law Division, Camden County. See Bowen, 2003 WL 22145814 at *14. The Court then considered the effect of a partial summary judgment decision as to the conspiracy claims inMelecio case on plaintiffs' conspiracy claims here. InMelecio, the defendants had filed a motion for partial summary judgment as to plaintiff Melecio's claim that the Estate of Scarduzio, Morcate, Jenkins, Otero, Jones, Buckingham and the Parking Authority conspired to obstruct justice based, in part, on an agreement "to obstruct and influence the outcome of the proceedings in the Bowen/Del Rosario lawsuit." Melecio v. The Parking Authority of the City of Camden, et al., Civil No. L-5087-01 (L. Div., Camden County). The motion was heard on October 11, 2002 and the Honorable John A. Fratto, J.S.C. granted the motion, stating:
there is no evidence of an agreement. To the contrary, the evidence is strong for disagreement total — as someone put it, total dissension between the Board and Scarduzio and Morcate. And it was a three way hate-fest.
So there being no evidence of an agreement to accomplish either an unlawful act or a lawful act by unlawful means, the — there was no overt act by anyone unless you look at what Scarduzio did. It's certainly by none of the other people.
And there was no injury proximately caused by any purported unlawful act in furtherance of a conspiracy.Id.
Defendants then filed their motions for summary judgment in this case, arguing that plaintiffs' conspiracy claims that defendants Scarduzio, Morcate, Jenkins, Otero, Jones, Hilerio, Buckingham, and Kellogg conspired to prevent witnesses from testifying in the present lawsuit through the use of "force, intimidation and/or threat," (Amended Complaint, Counts VII, VIII, IX, X), are collaterally estopped by the partial summary judgment decision in the Melecio lawsuit.
The defendants also argued that the conspiracy claims should be dismissed as protected by the litigation privilege and as not supported by factual evidence. Defendants have not sought reconsideration of the Court's conclusions on these issues.
In the September 2003 Opinion, the Court considered whether theMelecio decision should be given preclusive effect in this lawsuit under the following five-prong test established by New Jersey courts for use in determining whether collateral estoppel bars relitigation of an issue in a subsequent lawsuit:
(1) the issue must be identical;
(2) the issue must have actually been litigated in a prior proceeding;
(3) the prior court must have issued a final judgment on the merits;
(4) the determination of the issue must have been essential to the prior judgment; and
(5) the party against whom collateral estoppel is asserted must have been a party or in privity with a party to the earlier proceeding.Bowen, 2003 WL 22145814 at *34 (citing cases).
This Court found that the conspiracy claims were not collaterally estopped by the Melecio decision because the final judgment requirement was not met. Though the Melecio court had granted partial summary judgment on the conspiracy claims, "partial summary judgment is interlocutory in nature and does not terminate the action as to any of the claims or parties," so is "not entitled to res judicata or collateral estoppel effect in other litigation." Id. at *34-35 (quoting Gallant v. Telebrands Corp., 35 F. Supp. 2d 378, 393 (D.N.J. 1998)).
Because one prong of the collateral estoppel test had not been established, the Court found that the conspiracy claims in this suit were not collaterally estopped and the Court did not need to consider whether the other four prongs of the collateral estoppel test had been established. The Court, however, noted in footnote 59 that:
there is evidence that the other four prongs of the collateral estoppel test have been satisfied. The conspiracy allegations here are the same as those presented in the Melecio lawsuit, namely that Scarduzio tried to "pressure potential witnesses into given false testimony," (see e.g. Amended Complaint ¶¶ 158, 163; Hagner Cert., Ex. 86 at ¶¶ 57, 65), and that when other defendants learned of his actions, they "ratified and adopted his past actions and encouraged similar behavior in the future," (see e.g. Amended Complaint ¶¶ 160, 164, 169; Hagner Cert., Ex. 86 at ¶¶ 57, 66, 70). The conspiracy issue was litigated in the Melecio lawsuit as all parties submitted written papers and Melecio's and the Authority's counsel presented oral argument on the agreement issue. (Hagner Cert., Ex. 87 at 11:8-14:25.) Judge Fratto's partial summary judgment decision focused on whether defendants agreed to obstruct justice and Bowen and Del Rosario were third-party defendants in the Melecio lawsuit. However, because there is no evidence of a final judgment, and because a claim is only collaterally estopped if all prongs of the test are met, this Court will not dismiss the conspiracy claims based on collateral estoppel.Id. at *35 n. 59.
Defendants filed a motion for reconsideration of the Court's collateral estoppel finding on September 26, 2003, [Docket Item 264-1], asserting that the final judgment requirement has now been met in the Melecio lawsuit, so the Court should follow footnote 59 and find that all five prongs of the collateral estoppel test have now been established. Plaintiffs then filed cross-motions for reconsideration of the collateral estoppel decision on October 2 and 3, 2003, [Docket Items 267-1, 268-1], asserting that this Court should reaffirm its decision, but should reexamine the basis for its decision because "collateral estoppel is likewise inappropriate for each and every other element of the test." (Bowen Br. at 1; see also Del Rosario Br. at 2.)
II. DISCUSSION
A. Appeal of Magistrate Judge's Decision Regarding Psychiatric Examination of Plaintiff Bowen
The first matter before the Court is the appeal of the April 4, 2003 decision of the Honorable Joel B. Rosen, United States Magistrate Judge, in which he determined that plaintiff Joseph Bowen is not required to submit to a psychiatric examination under Fed.R.Civ.P. 35. The Court finds that Judge Rosen's decision was proper because good cause does not exist to compel a psychiatric examination of Bowen here.
1. Standard of Review
A United States Magistrate Judge may "hear and determine any [non-dispositive] pretrial matter pending before the court."Cardona v. General Motors Corp., 942 F. Supp. 968, 970 (D.N.J. 1996) (quoting 28 U.S.C. § 636(b)(1)(A)); see also Fed.R.Civ.P. 72(a); L. Civ. R. 72.1a(1). A party objecting to a magistrate judge's order on such a matter may, within ten days of service of the order, serve and file objections with the district judge.See Fed.R.Civ.P. 72(a); L. Civ. R. 72.1c(1)(A).
A district court may only reverse a magistrate judge's determination of a non-dispositive issue if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); accord Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c)(1); see also Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986). Under this standard, the reviewing court cannot reverse the magistrate judge's determination just because the court may have decided the matter differently. See Cardona, 942 F. Supp. at 971 (quoting Toth v. Alice Pearl, Inc., 158 F.R.D. 47, 50 (D.N.J. 1994) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). Instead, while the magistrate judge's legal conclusions are reviewed de novo, the magistrate judge's factual findings are only clearly erroneous if, after review of the entire record, the court "is left with the definite and firm conviction that a mistake has been committed." Lo Bosco v. Kure Engineering Ltd., 891 F. Supp. 1035, 1037 (D.N.J. 1995) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992). In reviewing the factual findings, the district court may not consider any evidence which was not presented to the magistrate judge. Haines, 975 F.2d at 92.
2. Analysis
A federal court has discretion pursuant to Fed.R.Civ.P. 35(a) to require a party to submit to a psychiatric examination, but only if (1) the party has placed his mental condition in controversy, and (2) good cause for the examination is shown. Schlagenhauf v. Holder, 379 U.S. 104 (1964). Here, Judge Rosen appropriately found that plaintiff Bowen need not submit to such an examination. The Court will affirm his decision, finding that defendants have not established good cause for an examination here.
Fed.R.Civ.P. 35(a) provides, in pertinent part:
When the mental . . . condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a . . . mental examination by a suitably licensed or certified examiner. . . . The order may be made only on motion for good cause shown . . .
(emphasis added).
(a) The "in controversy" requirement
The "in controversy" requirement of Rule 35(a) is intended to balance the "plaintiff's right to avoid the invasion of a mental examination . . . against the defendant's right to a fair trial" and to ensure that "requests for mental examinations [are not used] as a tool for harassment, intimidation or delay."Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649, 651 (D. Kan. 2003); see also Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298 (E.D. Pa. 1983). A mental condition is not "in controversy" simply because it is relevant to the case or because the party claimed that he suffered emotional distress; instead, the party seeking the examination must make an "affirmative showing . . . that each condition as to which the examination is sought is really and genuinely in controversy."Schlagenhauf, 379 U.S. at 118; see also Turner v. Imperial Stores, 161 F.R.D. 89, 97-98 (S.D. Cal. 1995). To make the necessary showing, though, the "moving party need not prove its case on the merits." Id. at 119. The "decision as to whether such showing was made, and thus that an examination is warranted, ultimately lies in the sound discretion of the trial court."Gattegno v. Pricewaterhousecoopers, LLP, 204 F.R.D. 228, 230 (D. Conn. 2001) (citing Stinchcomb v. United States, 132 F.R.D. 29, 30 (E.D. Pa. 1990)).
As explained by Judge Rosen, the "in controversy" requirement has "led to a considerable divergence of opinion among courts."Bowen, 214 F.R.D. at 193 (citing Ziemann v. Burlington County Bridge Comm., 155 F.R.D. 497, 501 (D.N.J. 1994); Bridges v. Eastman Kodak Co., 850 F. Supp. 216, 222 (S.D.N.Y. 1994)). Most courts, though, agree that for a plaintiff's mental status to be "in controversy," the lawsuit must present "more than `garden variety' emotional distress allegations that are part and parcel of the plaintiff's underlying claim." See, e.g., Greenhorn, 216 F.R.D. at 651; Gattegno, 204 F.R.D. at 232; Turner, 161 F.R.D. at 97-98; Smith v. J.I. Case Corp., 163 F.R.D. 229, 231 (E.D. Pa. 1995); Bridges, 850 F. Supp. at 220-22; Sabree v. United Broth. of Carpenters Joiners, 126 F.R.D. 422, 426 (D. Mass. 1989); Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 531 (M.D. Fla. 1988).
Generally, courts have found that a plaintiff's mental status is "in controversy" where the cases involve, in addition to a claim of emotional distress, one or more of the following:
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 emotional distress; and/or
5) plaintiff's concession that his or her mental condition is "in controversy" within the meaning of Rule 35(a).Turner, 161 F.R.D. at 95; see also O'Sullivan v. State of Minnesota, 176 F.R.D. 325, 328 (D. Minn. 1997); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 131 (E.D. Pa. 1997).
Here, it is undisputed that plaintiff has not asserted a claim for negligent or intentional infliction of emotional distress or for ongoing mental distress, and has not conceded that his mental state is in controversy. (Pl. Ex. B, Bowen Stipulation.) Defendants argue, though, based on an August 9, 2000 letter from plaintiff's physician, Dr. Patel, that the other three justifications exist here.
Dr. Patel's August 9, 2000 letter states:
Joseph Bowen was seen in my office on 7/10/00 for a follow-up visit. At that time he reported an increase in stress at his job with the Parking Authority of the City of Camden. This increase in stress had caused an exacerbation of Mr. Bowen's symptoms of depression; i.e. decreased concentration, insomnia, and helplessness.
Due to his symptom exacerbation, Mr. Bowen's medication regimen was adjusted and I recommended that he not go to work at his job with the Parking Authority beginning 7/10/2000 for an unspecified amount of time. He was not restricted medically from visiting his ice cream shop.
(Pl. Ex. C) (emphasis added).
Defendants assert that this letter shows that plaintiff has "alleg[ed] a specific mental or psychiatric injury or disorder" and has claimed "unusually severe emotional distress" because the letter is being presented to show that he had to "stop coming to work at the Authority without prior notice" because he suffered from clinical depression. (Defs. Br. at 8-9.) Defendants also assert that plaintiff is planning to offer expert testimony regarding his emotional distress because he intends to produce Dr. Patel for testimony at trial. (Id.) With this appeal, they seek to obtain an expert report about plaintiff's psychiatric condition that is broad enough that an expert today could speculate from it about plaintiff's condition in June 2000, and thus could contradict Dr. Patel's opinion that plaintiff was not capable of working in June 2000 due to job-related stress. (Defs. Br. at 4.) Plaintiff has represented that he will not move to have Dr. Patel offer expert testimony, but that he does intend to call him as a fact witness to testify about his knowledge of the events surrounding plaintiff's decision to stop working in June 2000.
In his April 4, 2003 Opinion, Judge Rosen considered these arguments, but found that they did not establish that plaintiff's mental condition was "in controversy" for purposes of Rule 35. First, he found that plaintiff had not alleged any "specific psychiatric malady," any "claim of unusually severe emotional distress," any "ongoing mental injury," or any "psychiatric disorder." Bowen, 214 F.R.D. at 194-95. Second, he found that the "plaintiff has specifically represented that he does not intend to offer expert testimony to support his claim of emotional distress." Bowen, 214 F.R.D. at 194. Though the defendants asserted that the plaintiff's doctor would testify as an expert that plaintiff was "so severely mentally disabled that he was unable to return to work," Judge Rosen found that he had "no such information before [him]." Id. at 194-95. Instead, plaintiff's counsel had represented to the Court that Dr. Patel would testify only as a treating physician, and not as an expert, and that he would testify only that plaintiff "suffered from symptoms of depression" which were "exacerbated by his attendance at the Parking Authority, but not at his independent ice cream shop business," not that plaintiff was "severely mentally disabled" or was completely "unable to work." Id. at 195. Therefore, Judge Rosen found that plaintiff Bowen has not placed his mental status "in controversy" in this lawsuit. Id. at 195.
This Court agrees that plaintiff has not placed his mental state "in controversy" in this suit. He has unequivocally represented to the Court that he does not seek to recover for emotional injury and that he will not offer expert testimony to establish that he suffers, or has suffered from, any severe emotional condition. Courts have found that these representations, coupled with an absence of a cause of action for emotional distress, is sufficient to show that mental condition is not "in controversy" for purposes of Rule 35. See, e.g. Gattegno, 204 F.R.D. at 233 (finding condition in controversy "until the plaintiff conclusively waives all rights to assert claims of emotional distress); O'Sullivan v. State of Minnesota, 176 F.R.D. 325, 328 (D. Minn. 1997) (finding representation that plaintiff would not present testimony asserting a clinically diagnosable psychological condition removed mental state from controversy).
The issue about whether plaintiff's medical condition is "in controversy" in this case would be a close one were it not for plaintiff's disavowal of any assertion that he had some significant mental condition, and for his dismissal of his claim for damages for emotional distress. Plaintiff's reason for his failure to appear at work in June 2000 and defendants' asserted reason for plaintiff's termination are all intertwined with plaintiff's assertion that job-related stress exacerbated his depression and forced him to take sick leave. The parties agree that it is impossible to eliminate from this case Dr. Patel's note, as it directly relates to plaintiff's asserted reason for leaving work in June 2000. This dispute, though it does not concern a mental "condition," does concern a historical fact of whether plaintiff Bowen was unable to work at the Parking Authority only, and on certain relevant dates only, because he was "sick." Judge Rosen did not err in concluding that the facts of this case do not show that plaintiff's mental state is in controversy as it is plaintiff's reason for leaving work that is in controversy, not his mental state.
The Court has chosen to consider the good cause prong of the test here, even if it were assumed that the "in controversy" requirement of Rule 35 could embrace the allegations of this case. Here, it is the good cause prong that makes it clear that, even if plaintiff's mental condition were in controversy, Judge Rosen's decision must still be affirmed because defendants have not shown "good cause" for the psychiatric examination and administration of the MMPI.
(b) The "good cause" requirement
In addition to showing that plaintiff's mental condition is in controversy, defendants bear the burden of showing that "good cause" exists for the mental examination. See, e.g. In re Chambers Development Co., 148 F.3d 214, 228 (3d Cir. 1998);Ziemann v. Burlington County Bridge Comm'n, 155 F.R.D. 497, 501 (D.N.J. 1994); Pearson v. Norfolk-Southern Railway Co., 178 F.R.D. 580, 582 (M.D. Ala. 1998). "Good cause requires a showing that the examination could adduce specific facts relevant to the cause of action and is necessary to the defendant's case."Womack v. Stevens Transport, Inc., 205 F.R.D. 445, 447 (E.D. Pa. 2001). The in controversy and good cause requirements are "necessarily related," so that good cause is generally present if the condition is in controversy and not present if the condition is not in controversy, but there may be situations where good cause is lacking, even if the party's mental condition is in controversy, and the examination must be denied. See, e.g. Pearson, 178 F.R.D. at 582. The benchmark for the good cause determination, therefore, is not whether the condition is in controversy, but whether the examination will produce relevant information for which there is a need. See Womack, 205 F.R.D. at 447; Pearson, 178 F.R.D. at 582.
Here, defendants have not shown good cause for a mental examination and MMPI testing of plaintiff Bowen, and to do so would produce a psychiatric invasion unjustified by the dispute about plaintiff's stress in 2000. First, defendants have not established that the examination will produce relevant information. It has long been recognized that an examination in a case where the plaintiff has alleged solely past emotional disturbance "would be useless since it would not show the extent of the injury he had suffered in the past from which he had wholly recovered." See Coca-Cola Bottling Co. v. Torres, 225 F.2d 149, 153 (1st Cir. 1958); see also Winters v. Travia, 495 F.2d 839, 840-41 (2d Cir. 1974). Where a plaintiff has suffered a discrete condition in the past and has fully recovered, an examination of his present condition simply cannot shed light on his past condition. This is the situation here. Plaintiff has not alleged that he still suffers any mental distress. Instead, he has focused all his complaints of mental distress on the time he spent at the Authority. Even at that time, he and his doctor agreed that he could work elsewhere because the stressor was the Authority, not work itself. Under these circumstances, where plaintiff has not worked in the stressful environment that exacerbated his symptoms for over three years, where he has not alleged any ongoing mental distress from his time there, and where he has not sought damages for an ongoing inability to work because of mental distress, an examination of his present mental condition will not produce relevant information about his past mental condition. An examination today simply cannot show whether or not he was sick, and thus whether or not he abused his sick leave, in 2000.
On the other hand, if the plaintiff seeks damages for a past condition, but alleges that he still suffers from the condition, or that he is still unable to work because of it, then the court may find that good cause warrants the examination.See Womack, 205 F.R.D. at 447 (allowing examination because plaintiff's ongoing psychological issues may be reason for inability to work instead of physical injuries as alleged);Ziemann, 155 F.R.D. at 501 (permitting examination because plaintiff was still not working allegedly because of condition);Hodges v. Keane, 145 F.R.D. 332, 335 (S.D.N.Y. 1993) (finding examination warranted because there was evidence that the "plaintiff may still suffer from the condition" which may have caused his damages).
The Court has considered defendants' argument that any arguments that an IME which analyzes plaintiff's present condition cannot provide information about his past condition should be the subject of a Daubert hearing about the IME's methodology, rather than of a Rule 35 hearing prior to the IME. However, the Court finds that the examination's relevance is an appropriate pre-examination consideration under the good cause prong of the Rule 35 test. Though defendants seek an examination asserting that an expert may be able to speculate about plaintiff's mental condition in 2000 from data obtained in 2003, the Court has not seen anything which indicates how such an exam could provide relevant, probative evidence for the issues in this case. Therefore, this examination must be denied before plaintiff is subjected to its invasion of privacy.
Second, defendants have not shown that this mental examination is necessary for their case. Defendants seek this examination to show that plaintiff, who said that he did not report to work because of job-related stress, actually chose not to report to work for other reasons which justified their decision to terminate his employment. It is true that plaintiff has a note from his treating physician, Dr. Patel, which supports his claim that he was stressed by his Authority employment in June 2000, apparently based on plaintiff's own report to his doctor. However, defendants have not established why they need a medical expert's testimony to counter this doctor's note. Plaintiff has specifically agreed that Dr. Patel will only testify as a fact witness to explain why he concluded that plaintiff was stressed by his work at the Authority. Defendants will be able to cross-examine plaintiff and Dr. Patel about their reasons for concluding that plaintiff could no longer report to work, they will be able to present evidence that plaintiff was able to work elsewhere, and they will be able to produce witnesses or other evidence to support their position that plaintiff's condition did not prevent him from working. In the end, it will be the jury's function to determine whether plaintiff's assertion of job-related stress at that specific time, limited to the Parking Authority job, is credible in light of all the evidence in the case. This is not a case where defendants need to be placed on "equal footing." See Gattegno, 204 F.R.D. at 233. Instead, this is a case where the parties are already on "equal footing" as neither side will be presenting expert testimony regarding plaintiff's mental condition in June 2000, and defendants made their decision to termination plaintiff at that time without the need for an examination.
Third, a psychiatric examination and an MMPI are overly intrusive for the very limited issue at stake. A plaintiff should not be subjected to such an intrusion to reveal aspects of plaintiff's personality that may be unrelated to the claims and defenses at stake, but would be useful in an unfair way to the defense. Who would not want to have a current psychological profile of a plaintiff before cross-examining him or using other litigation tactics? The "for cause" requirement of Rule 35(a) assures that this potentially intimate knowledge about a plaintiff becomes available to the adversary only when it would be probative of the plaintiff's mental condition in controversy.
For these reasons, this Court finds that defendants have not met their burden of showing that plaintiff Bowen's mental condition is in controversy or that there is good cause for a mental examination. Thus, this Court finds that Judge Rosen appropriately exercised his discretion in denying defendants' motion for a psychiatric examination pursuant to Fed.R.Civ.P. 35, and will affirm his April 4, 2003 decision.
B. Cross-Motions for Reconsideration of this Court's September 18, 2003 Collateral Estoppel Decision
Next before the Court are the parties' cross-motions for reconsideration of the Court's finding that plaintiffs' conspiracy claims are not collaterally estopped by the conspiracy decision in a state lawsuit, Melecio v. The Parking Authority of the City of Camden, et al., Civil No. L-5087-01 (L. Div., Camden County).
The Court based its finding that the claims are not collaterally estopped on the final judgment prong of New Jersey's five prong collateral estoppel test, because the Melecio court had not entered final judgment in the Melecio case, as required. Defendants now seek reconsideration of this finding because, on June 20, 2003, summary judgment was entered as to all claims in Melecio. (Hagner Cert., Ex. 2.) Plaintiffs do not dispute that summary judgment was entered as to Melecio inMelecio, but ask the Court to reconsider all prongs of the collateral estoppel test here, arguing that no prong of the test is satisfied.
The Court agrees that reconsideration of the Court's collateral estoppel decision is appropriate here, and finds, for the following reasons, that the conspiracy claims here are not collaterally estopped.
1. Standard for Reconsideration
Local Civil Rule 7.1(g) requires that a motion for reargument be served within 10 days of the entry of the order or judgment on which reargument is sought. Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "A party seeking reconsideration must show more than a disagreement with the court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)).
A judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Pelham v. United States, 661 F. Supp 1063, 1065 (D.N.J. 1987)). Where no facts or cases were overlooked, the motion will be denied. Egloff v. N.J. Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts Int'l v. Greate Bay Hotel Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). A "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). Indeed, the Court is "in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts, 830 F. Supp. at 831 n. 3 (emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion. Panna, 760 F. Supp. at 435.
2. Analysis
The Court finds that reconsideration of its prior decision regarding collateral estoppel is appropriate here based on the recent developments in the related Melecio state court case. The Court also finds, upon reconsideration, that collateral estoppel does not bar the litigation of the present conspiracy claims, though for slightly different reasons than those expressed in the Court's September 18, 2003 Opinion.
As the Court explained in its previous Opinion, the doctrine of collateral estoppel "prevents relitigation of the same issues in a later case" if:
(1) the issue is identical to the issue in the prior proceeding;
(2) the issue was actually litigated in the prior proceeding;
(3) the prior court issued a final judgment on the merits;
(4) the determination of the issue was essential to the prior judgment; and
(5) the party against whom collateral estoppel is asserted was a party or in privity with a party to the earlier proceeding.Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 572-73 (3d Cir. 2002) (citing In re Estate of Dawson, 136 N.J. 1 (1994)).
In the Court's September 18, 2003 Opinion, the Court found that collateral estoppel did not bar litigation of the conspiracy claims here because final judgment had not been entered inMelecio. Bowen, 2003 WL 22145814 at *34. Partial summary judgment had been entered, but it was not sufficient to establish that a final judgment was entered for collateral estoppel purposes. Id. Defendants have now presented evidence that summary judgment has been granted as to all claim in theMelecio case and that the time for appealing the granting of summary judgment has passed without any appeal being filed. (Hagner Cert., Ex. 2.) The Court finds, though, that this new circumstance does not change the ultimate result here.
N.J. Court Rule 2:4-1(a) provides that:
Appeals from final judgments of courts, final judgments or orders of judges sitting as statutory agents and final judgments of the Division of Workers' Compensation shall be taken within 45 days of their entry.
Here, Judge Fratto's Order was entered on June 20, 2003, so the time for appeal in Melecio has passed.
In the Court's September 18, 2003 Opinion, the Court, which based its decision on the lack of evidence of a final judgment, included footnote 59 which noted that there was evidence that the other four prongs of the collateral estoppel test had been established here. Upon reconsideration, though, the Court finds that these additional prongs have not been met here, and that this action is not collaterally estopped.
Upon reconsideration, it has become clear that the issue in this lawsuit is not identical to the issue in the Melecio suit and was not litigated in the Melecio suit. The Court was correct in noting in its September Opinion that the conspiracy allegations in the Melecio lawsuit include similar allegations to those here, namely that "Scarduzio tried to `pressure potential witnesses into giving false testimony,' and that when other defendants learned of his actions, they `ratified and adopted his past actions and encouraged similar behavior in the future.'" Bowen, 2003 WL 22145814 at *35 n. 59 (internal citations omitted). However, it is now clear that the conspiracy allegations in the present lawsuit are much more expansive than the conspiracy allegations in Melecio. Plaintiffs Bowen and Del Rosario allege that the conspiracy to thwart their whistle-blowing efforts and to retaliate against them began while they were employed at the Authority and extended to "all potential witnesses." (Amended Complaint ¶¶ 152-185.) Importantly, the plaintiffs have alleged in the present lawsuit that the defendants conspired to end their continued employment and to thwart their termination proceedings, the State Attorney General's investigation, and this lawsuit. (See, e.g. id. ¶¶ 152, 154.) The conspiracy's overt acts allegedly included "pressuring employees of the Authority to give false statements," "offering Authority employees reward for giving false statements," "creating false and misleading documents," and "concealing documents that were favorable to Bowen and Del Rosario." (See, e.g. id. ¶ 152.) Its acts also extended to actual violence against Bowen "on July 9, 2001 [when] Scarduzio sought out Bowen, shot him several times and beat him about the head with a wooden object . . . to silence Bowen and prevent him from testifying in his Federal lawsuit and to retaliate against him for testifying truthfully at his deposition as well as cooperating with law enforcement." (Id. ¶ 185.)
The conspiracy alleged in Melecio, on the other hand, is one which began just prior to Bowen's termination hearing and is one which focuses on Mr. Melecio. The Melecio Complaint alleges that Scarduzio had tried to "coerce Mr. Melecio into giving a different statement" at Bowen's termination hearing, and that, when he did not, "Scarduzio conducted intense and intimidating questioning of Mr. Melecio." (Hagner Supp. Cert., Ex. A at ¶ 56.) From that point on, Mr. Melecio alleges that Scarduzio retaliated against him by "increas[ing] work demands on Mr. Melecio and attempt[ing] to falsify documents that he was not performing adequately," by not appointing him to the position of Director of Operations, and by denying him the job of Meter Foreman, (Id. ¶¶ 56, 60, 80.) The Melecio Complaint includes the allegation that "Scarduzio shot Bowen in an effort to silence him," but again focuses its allegation on Mr. Melecio personally by providing that the shooting was "in an effort to . . . terrorize and intimidate others . . . including Mr. Melecio." (Id. ¶ 97.)
The issue in the Melecio case, therefore, was whether there was a conspiracy to retaliate against Mr. Melecio because he "refused to participate in obstruction of justice." (See id. ¶ 80.) The issue in the present case is much broader, encompassing whether there was a conspiracy to terminate plaintiffs' employment and to thwart the present lawsuit and the State Attorney General's investigation. These broader allegations were not part of the Melecio lawsuit and were, therefore, not "actually litigated" by the Melecio court or "essential to the prior judgment" of the Melecio court. The conspiracy allegations here, therefore, are not collaterally estopped by theMelecio decision.
Because these three prongs of the test have clearly not been met, the Court need not determine whether the other two prongs of the test have been. Plaintiffs argue that the Melecio summary judgment does not satisfy the final judgment test because it was not "sufficiently firm" because it was granted in a brief oral opinion, and that they were not parties to the Melecio proceeding in "all practical and equitable respects," even though they were third-party defendants. These are closer issues and the Court will refrain from considering them here because it is clear that the Melecio decision does not estop the present suit based on the disparity of issues presented in the two cases.
III. CONCLUSION
For the foregoing reasons, this Court finds that Judge Rosen's April 4, 2003 Opinion must be affirmed and that the Court's September 18, 2003 decision that the conspiracy claims are not collaterally estopped must be reaffirmed on reconsideration.
The accompanying Order is entered.
ORDER
This matter having come before the Court on the appeal of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton of Magistrate Judge Joel B. Rosen's April 4, 2003 decision in which he denied their motion to compel plaintiff Joseph Bowen to submit to a psychiatric examination, [Docket Item 257-1], and on the motion of defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton, [Docket Item 264-1], and cross-motions of plaintiffs Joseph Bowen, [Docket Item 267-1], and Thomas Del Rosario, [Docket Item 268-1], for reconsideration of the collateral estoppel finding contained in this Court's September 18, 2003 Opinion and Order; this Court having considered the submissions of the parties as well as their November 26, 2003 oral arguments on the issues presented in the appeal of Judge Rosen's decision, for the reasons expressed in an Opinion of today's date and for good cause,
IT IS this ____ day of December, 2003, hereby
ORDERED that the appeal filed by defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton of Judge Rosen's April 4, 2003 Order, [Docket Item 257-1], be, and hereby is DENIED, and Judge Rosen's Order denying defendants' motion to compel plaintiff Bowen to submit to a psychiatric examination is AFFIRMED ; and
IT IS FURTHER ORDERED that the motions for reconsideration of this Court's September 18, 2003 collateral estoppel finding filed by defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Ismael Hilerio, Charles Kellogg, and Judy E. Fulton, [Docket Item 264-1], plaintiff Joseph Bowen, [Docket Item 267-1], and plaintiff Thomas Del Rosario, [Docket Item 268-1], be, and hereby are, GRANTED ; and
IT IS FURTHER ORDERED that this Court's September 18, 2003 decision that the conspiracy allegations in this lawsuit are not collaterally estopped be, and hereby is, AFFIRMED.