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Whitney v. Franklin General Hospital

United States District Court, Northern District of Iowa, Central Division

December 23, 2014




On the 22nd day of December 2014, this matter came on for telephonic hearing on the Motion to Compel and Request for Extension of Expert Disclosure Deadline (docket number 63) filed by the Defendants on December 1, 2014. Plaintiff was represented by her attorneys, Brooke Timmer and Emily McCarty. Defendants were represented by their attorneys, D. David DeWald and Matthew M. Enenbach.


On August 29, 2013, Plaintiff Nicole Whitney filed a complaint seeking damages for sexual harassment, sex discrimination and retaliation, disability discrimination and retaliation, violations of the Family Medical Leave Act, sexual exploitation, and assault and battery. An amended complaint was filed on September 23, 2013. Defendants filed their answer and affirmative defenses on February 17, 2014.[1]

On January 9, 2014, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. Among other things, the parties agreed to deadlines for disclosing expert witnesses and completing discovery. In reliance on those deadlines, the trial has been scheduled before Judge Mark W. Bennett on June 1, 2015. The deadlines for disclosing expert witnesses, completing discovery, and filing dispositive motions have been extended twice. The deadline for Defendants to disclose their expert witnesses was December 12, 2014, with Plaintiff required to disclose her rebuttal experts, if any, not later than January 12, 2015.

To support her claim for damages, Plaintiff retained Louise F. Fitzgerald, Ph.D. an Emeritus Professor of Psychology and Gender and Women's Studies at the University of Illinois at Urbana-Champaign. As part of the evaluation, Plaintiff submitted to a battery of psychological tests administered by Angela Lawson, Ph.D.[2] Dr. Fitzgerald submitted a detailed 41-page report. Also provided as appendices to Dr. Fitzgerald's report were a description of testing protocols administered and interpreted, a list of documents reviewed, scientific references, Dr. Fitzgerald's curriculum vita, a list of cases in which Dr. Fitzgerald has been involved in the last four years, and her fee schedule.[3]

Defendants have retained Dr. Jane McNaught, a psychologist in Minnesota, to serve as their expert. According to Mr. DeWald, Dr. McNaught was timely identified, but is unable to reach any conclusions until she has reviewed the "raw data" from the psychological tests administered under Dr. Fitzgerald's direction. At the hearing, Mr. DeWald advised the Court that if Dr. Fitzgerald is ordered to produce the raw data, he would then forward the raw data to his expert. Plaintiffs counsel have consistently told Defendants' counsel — and confirmed their position at the hearing — that Plaintiff is willing to have her expert send the raw data directly to Defendants' expert.[4] Defendants' counsel believe, however, that it is necessary for them to personally review the raw data.[5]

On December 1, 2014, Defendants filed the instant motion to compel. Defendants ask that Plaintiff be ordered to produce the raw data generated by Plaintiffs expert during the administration of eight psychological tests. Defendants also ask the Court to extend the deadline for disclosing their expert witnesses until 30 days after the documents are produced or, alternatively, until 30 days after the Court rules on the motion to compel. Plaintiff resists Defendants' motion, arguing that production of the raw data to anyone other than a licensed psychologist violates state law, would require Plaintiffs expert to violate her ethical obligations, and would cause Plaintiffs expert to breach copyrights held by the publishers of the tests.


A party is required to disclose to the other parties the identity of any witness it intends to use to present expert testimony. Fed.R.Civ.P. 26(a)(2)(A). Generally, the disclosure must be accompanied by a written report containing, among other things, "the facts or data considered by the witness" in forming die witness' opinions. Fed.R.Civ.P. 26(a)(2)(B)(ii). Defendants argue that die "data" considered by Dr. Fitzgerald in reaching her opinions includes die raw data generated by the administration of the psychological tests.

In her report, Dr. Fitzgerald describes in some detail her opinions and conclusions, together with die facts underlying those opinions. Starting on page 22 of her report, Dr. Fitzgerald describes die information obtained during an interview with Plaintiff. Starting on page 33, the report identifies the various psychological tests which were administered, mcluding Dr. Fitzgerald's analysis of Plaintiff's scores. Plaintiff and Dr. Fitzgerald assert, however, that production of die raw test data would violate state law.

Except as otherwise provided in this section, a person in possession of psychological test material shall not disclose the material to any other person, including the individual who is a subject of die test. In addition, the test material shall not be disclosed in any administrative, judicial, or legislative proceeding. However, upon the request of an individual who is the subject of a test, all records associated with a psychological test of that individual shall be disclosed to a psychologist licensed pursuant to chapter 154B designated by the individual. An individual's request for the records shall be in writing and shall comply with the requirements of section 228.3, relating to voluntary disclosures of mental health information, except that the individual shall not have the right to inspect the test materials.

Iowa Code § 228.9. The State of Illinois, where Dr. Fitzgerald resides, has a similar statute. See 740 Ill. Comp. Stat. 110/3. Furthermore, in a supporting affidavit, Dr. Fitzgerald asserts that "[t]he ethical requirements of my profession, and the copyright provisions associated with the above-identified instruments, further prohibit me from releasing raw test data or materials to anyone other than a licensed psychologist."[6]

The tension between the disclosure requirements of Rule 26(a)(2)(B), and the statutory and ethical issues raised by the disclosure of raw test data, has been discussed by a handful of courts, with varying results. In Walton v. North Carolina Dept. of Agriculture, 2011 WL 2893622 (E.D.N.C), the court directed the plaintiff to submit to two mental examinations at the defendant's request. The plaintiff later filed a motion to compel, seeking an order requiring the examining expert to produce copies of the psychological testing materials. The defendant did not oppose the motion, but the expert objected, "explain[ing] that she is ethically and legally unable to provide the materials without a court order directing her to disclose them and setting forth specific requirements for their protection." Id. at *1. Finding that production of the ...

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