The opinion of the court was delivered by: Joel B. Rosen, United States Magistrate Judge
Presently before the court is the motion of Laura D. Ruccolo, Esquire, counsel for Defendants The Parking Authority of the City of Camden, Carlos M. Morcate, Carmen Otero, Linda R. Jones, Thomas Buckingham, Charles Kellogg, Israel Hilerio, and Judy E. Fulton (collectively herein referred to as "the City defendants"), to compel the psychiatric examination of Plaintiff Joseph Bowen, pursuant to Fed.R.Civ.P. 35. After careful consideration of the parties' submissions, and after further consideration of the oral argument conducted on the record on February 21, 2003, the City defendants' motion to compel a psychiatric examination of Plaintiff Joseph Bowen shall be denied.
FACTUAL AND PROCEDURAL BACKGROUND
As the background of this case was reviewed in some detail in the order dated October 24, 2001, the court shall focus only on those facts and the procedural background most pertinent to this motion.
Plaintiff Joseph Bowen began working at the Parking Authority in May 1997 as a Property Manager. Beginning in the spring of 1998 and continuing throughout his employment with the Parking Authority, Bowen alleges that he noticed conduct at the Parking Authority that violated various laws, rules, and regulations as well as conduct that could be considered discriminatory. (See, e.g., Amended Complaint ¶¶ 22-45, 107). Bowen further alleges that after bringing this conduct to the attention of his supervisors, certain individuals at the Parking Authority harassed and threatened him. (See, e.g., Amended Complaint ¶¶ 44-56, 77). Bowen complained to then Executive Director Scarduzio, Defendant Morcate, and others about the allegedly harassing conduct. (See, e.g., id. at ¶¶ 57-59). Bowen asserts that, following these complaints, he was retaliated against. (See, e.g., id. at ¶¶ 60-65, 130-131).
Bowen contends that the harassment by certain Parking Authority officials caused him "stress and emotional problems" for which he sought treatment. (See id. at ¶ 126). On June 29, 2000, Bowen left work and did not return "at the explicit direction of [his] treating physician." (Id. at ¶ 127). The Parking Authority terminated Bowen's employment, based on Bowen's failure to report to work. (See Defendants' Moving Brief at 2). On August 11, 2000, the Parking Authority held a termination hearing. Bowen asserts that he was precluded from presenting evidence of retaliation at that termination hearing. The Authority, however, did allow Bowen to present evidence by his treating physician that he "was unable to return to his position at the Parking Authority at that time [June 2000] due to his medical condition." (Id. at ¶ 136). Bowen specifically alleges in connection with his complaint that "[a]bsence due to illness was not grounds for terminating his employment contract." (Id. at ¶ 137). Plaintiffs Joseph Bowen and Thomas Del Rosario*fn1 filed a complaint in the Superior Court of New Jersey asserting violations of the New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1, et seq. (CEPA) and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. (NJLAD). On November 22, 2000, the defendants removed the action to this court.
Plaintiff Joseph Bowen has consistently represented to this court that he intends to produce his treating physician, Dr. Prabhaker Patel, as a fact witness at trial to testify as to Bowen's mental condition in the summer of 2000. Most recently, Bowen's counsel has stated that "Mr. Bowen  intends to offer Dr. Prabhaker Patel as a fact witness at trial to offer testimony about [Bowen's] past work-related stress in order to explain why he did not return to work after June 2000." (Letter of Thomas McKay, III, Esquire, dated 3/11/03, at 1-2). Counsel further explained: "Mr. Bowen's allegations of mental stress are generalized claims for damages stemming from past harm he suffered as a result of the Parking Authority's improper conduct." (Id. at 2). This statement conflicts with the plaintiff's amended complaint which avers that Bowen "continues to suffer severe emotional distress." Specifically, Count I (CEPA), Count III (NJLAD), and Count V (§ 1983) each contain the following statement:
As a direct natural and proximate result of the actions
described above by each and every defendant, the
Plaintiff has suffered and continues to suffer severe
emotional distress, mental anguish, pain, suffering and
humiliation and has been unable to attend to the normal
activities of his daily life including but not limited
to an inability to attend his duties in the workplace.
(See Count I ¶ 191, Count III ¶ 205, Count V ¶ 220). At oral argument before this court, Bowen's counsel represented that Bowen was not pursuing claims for present or ongoing mental or emotional distress.*fn2
This language in the amended complaint as well as the planned testimony of Dr. Patel were the impetus for the defendants' request for a psychiatric examination of Bowen. With respect to the complaint, the defendants direct the court to Bowen's assertion that he was disparately treated. Bowen alleges that when Director Scarduzio suffered work-related stress allegedly because of workplace harassment by certain commissioners, he was granted a leave of absence. Bowen asserted that his absence was also grounded in workplace harassment by these same commissioners, but that he was not extended the same accommodation. (See Amended Complaint, ¶¶ 48, 49; and Defs.' Moving Brief at 2). Rather, he contends, the Authority retaliated against him by instituting termination proceedings.
With respect to Dr. Patel's testimony, the defendants proffer certain testimony that Dr. Patel presented to the Authority at Bowen's August 2000 termination hearing, as well as documents they have obtained during discovery. The documents consist of prescriptions for medication and certain treatment notes.*fn3 (See Certification of Laura D. Ruccolo, Esquire, filed 1/6/03 ("Ruccolo Cert."), Ex. A). Included in this body of medical prescriptions and notes is a letter which Bowen presented at his termination hearing from Dr. Patel to Bowen's then-counsel which 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
(Letter of P.S. Patel, M.D., dated 8/9/00, attached as Ex. C to Ruccolo Cert.; see also Defs.' Moving Brief at 2). Based on this evidence, the defendants contend that Dr. Patel acted not only as the plaintiff's treating physician, but also as an expert for the plaintiff "because he prepared various written diagnoses regarding plaintiff's mental infirmity for plaintiff's use at his termination hearing and opined that in his professional opinion plaintiff was so severely mentally disabled that he was unable to return to work." (Defs.' Reply Brief at 3). On review, the court could find no statement by Dr. Patel that "in his professional opinion plaintiff was so severely mentally disabled that he was unable to return to work." The closest document to a professional opinion or to a statement that Bowen was mentally disabled was the letter of August 9, 2000, quoted in full above. The defendants contend that in denying the defendants a psychiatric examination, Bowen is attempting to "morph [Dr.] Patel's opinions regarding Bowen's inability to work into a medically incontestable fact[.]" (Defs.' Reply at 3).
In opposition, Bowen asserts that the defendants are not entitled to a psychiatric examination because he "has not alleged a separate emotional distress claim, a specific mental or psychiatric injury or disorder or a claim of unusually severe emotional distress." (Pl.'s Opp. at 6). Bowen further states that he has "certainly never conceded that his mental condition is `in controversy' within the meaning of Rule 35(a)." (Id. n. 2).
The psychiatric examination of Bowen was first scheduled for July 9, 2002. At first, Bowen consented to an examination.*fn4 It was not until December 2002 that Bowen first objected to any psychiatric examination, although the deposition date was postponed for several reasons not relevant to this application until December 4, 2002. Some time in November 2002 Bowen's counsel objected to the examination. The court was consulted for assistance and on December 3, 2002, the court entered an order requiring both Bowen and Plaintiff Thomas Del Rosario to appear for two psychiatric examinations, one by Dr. Scasta and one by Dr. William Campagna. See Order of the Honorable Joel B. Rosen.
Dr. Campagna's examination would consist of the Minnesota Multiphasic Personality Inventory ("MMPI"), a personality assessment test. The defendants have represented that this examination is required by Dr. Scasta for his examination. (See Defs.' Moving Brief at 5). Indeed, Dr. Scasta provided this court with an affidavit explaining that he plans to conduct a "comprehensive psychological examination" which examination will include review of the MMPI, which he describes as "an objective study designed to elucidate information regarding a person's personality." (Affidavit of Dr. David Scasta, undated with no original signature, ¶¶ 2-3, filed on April 2, 2003). Dr. Scasta concluded that "[f]ollowing [his] comprehensive examination and the MMPI, it is [his] belief that [he] shall have the necessary foundation to offer an opinion within a reasonable degree of psychiatric certainty concerning Bowen's mental status in or about June 2000 and if relevant, prior to and beyond that date." (Id. at ¶ 4). On December 4, 2002, counsel for Bowen objected again to the examination. This court stayed its December 2nd order pending a formal motion.