Fired Attorney Suing Law Firm
Fired Attorney Suing Law Firm For Sexual Harassment and Emotional Distress Ordered To Undergo Psychiatric Examination.
By Hugh W. Cuthbertson
It is good to know that even lawyers are not above the law. Thus, for example, when a lawyer sues someone, he or she becomes a plaintiff in a case and, like any other plaintiff, is subject to the rules of discovery. Accordingly, when that lawyer places his or her mental condition in issue, the defendant has a right to examine and analyze the lawyer’s claim by gathering information through discovery about the lawyer’s mental condition. One of the tools of discovery in such instances is a psychiatric examination.
In a recent case on point, a female attorney was fired by her employer and sued her ex-firm in New York state court for sexual harassment, retaliatory discharge and intentional infliction of emotional distress. The lawyer alleged that her former firm caused her to suffer, among other things, “extreme mental and physical anguish” and “severe anxiety” and sought to recover $15 million for emotional distress damages.
Although the lawyer denied that her ex-employer’s actions caused any diagnosed psychiatric condition and she did not anticipate calling an expert of her own in support of her emotional distress claims, she did testify at her deposition that her emotional distress included her experiencing eczema all over her body, hair pulling, anxiety, depression and suicidal feelings.
Because of this, her former law firm decided to request the attorney to undergo a psychiatric examination. Under New York practice, any party to a lawsuit may serve a notice on another party to submit to a mental examination, if the party to be examined has placed his or her mental condition “in controversy.” NY CPLR § 3121(a). The party whose examination is requested may then object to the request and require the party seeking the examination to obtain a court order.
The lawyer objected to her former law firm’s request on the ground that such an examination would be unduly intrusive into private matters which were no one’s business but her own. The law firm, however, moved to compel its former employee to submit to the exam. Although the attorney could have proposed conditions on the requested examination or sought a protective order limiting the scope or extent of the exam, she did not do so.
Under these circumstances, the trial court granted the law firm’s motion to compel, requiring the examination to go forward. The lawyer appealed, but the Appellate Division of the New York Supreme Court affirmed the trial court’s ruling on the ground that the lawyer had in fact placed her mental condition “in controversy” by alleging unusually severe emotional distress, such that a mental examination was warranted so that the law firm could rebut its former employee’s emotional distress claims. Clark v. Allen & Overy, LLP, 2015 WL 648348 (Feb. 17, 2015).
The standard and procedure in Connecticut for requiring a party to submit to a mental examination is similar in some respects, but different in others. In Connecticut, a party may seek a mental examination where the mental condition of the other party is “material” to the prosecution or defense of a civil action. Under this circumstance, a party in a personal injury action has the right to have the other party submit to a mental exam, if a request for the exam is filed and the party sought to be examined does not object within ten days. If the party sought to be examined timely objects, the court must rule on the request. In a non-personal injury case, a party must always seek a court order and show good cause for the examination. Connecticut Practice Book § 13-11.
Because emotional injuries are so routinely claimed as damages in civil litigation, a party seeking recovery for them should carefully consider the very real possibility that he or she may be required to submit to a psychiatric examination as part of the process for proving and valuing such an injury. Given the unpredictable nature of litigation, at least this is one way to reduce some of the surprises inherent in that process.