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Winslow v. Montana Rail Link12/18/2001
ts that she has suffered the type of emotional distress that typically accompanies a severe second degree burn and permanent scarring. In her deposition, she described her mental anguish as feelings of embarrassment and self-consciousness because the scar is ugly and noticeable in public. She is not alleging a permanent mental injury nor any deep seated emotional disturbance or psychiatric problem. Mrs. Coates' mental anguish claim is, therefore, for the emotional pain, torment, and suffering that a plaintiff who has been burned and scarred would experience in all reasonable probability. Compare Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). Further, the record reflects that Mrs. Coates has not sought any type of psychiatric treatment as a result of the incident and, equally important, does not propose to offer psychiatric or psychological testimony to prove her mental anguish at trial.
To permit Drackett to compel a mental examination because Mrs. Coates has claimed mental anguish damages would open the door to involuntary mental examinations in virtually every personal injury suit. Rule 167a was not intended to authorize sweeping probes into a plaintiff's psychological past simply because the plaintiff has been injured and seeks damages for mental anguish as a result of the injury. Plaintiffs should not be subjected to public revelations of the most personal aspects of their private lives just because they seek compensation for mental anguish associated with an injury. Coates, 758 S.W.2d at 751-52.
In Schlagenhauf, the Supreme Court concluded that where a person alleges "mental injury ," that person's mental condition is in controversy and Rule 35 is applicable. Schlagenhauf, 379 U.S. at 119. However, there is no mental injury alleged in this case. "Injury" infers a diagnosis which requires expert opinion and treatment. Plaintiff intends to call no expert witness for purposes of providing a diagnosis and has received no treatment for his mental distress. As in Coates, Winslow alleges mental distress that typically accompanies loss of a job and the inability to find comparable employment. When asked to explain his emotional distress claim, he testified that he is irritable and upset because of lost income, loss of insurance coverage, the inability to make house payments and his inability to find other employment. It doesn't take an expert to evaluate his claim for damages based on these experiences. The reasonableness of his claim is well within the comprehension of the average juror.
The common sense approach taken by the Texas Supreme Court is especially preferable to the majority's opinion in light of the strict constitutional right to privacy found in the Montana Constitution at Article II, Section 10, and our observation in State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 532, 822 P.2d 91, 96, that the "psychiatric examination is particularly invasive of an individual's right to privacy. It is an extraordinary form of discovery which is permitted under Rule 35 only when the plaintiff's mental condition is in controversy, and then only when good cause has been shown." (Emphasis added.)
I would conclude that where damages for mental distress are claimed without an allegation of "mental injury ," good cause has not been established for the invasive process of a psychiatric examination.
The majority infers there is a difference between ordinary claims of mental distress and direct actions for damages based on mental distress when "serious" mental distress must be proven. However, that distinction is irrelevant pursuant to Schlagenhauf and its progeny as pointed out by the Texas Supreme Court. The issue is whether mental injury has be
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