Rule 35. Physical and Mental Examination of Persons

[kmckenn]

What is the name of your state? Ohio, This is a Federal Case

A former employee for the Defendant is scheduled by the Defendant for deposition, who was terminated by the Defendant for harassment, and workplace violence. There are several documents, relevant to this case, where it states that this former employee was under the care of a (psychiartic/psychological) therapist. I have personally lived with a parent who is bipolar / manic-depressive all my life, so I am familiar with the condition. Behavior patterns of this former employee are very consistent with that or similar/related condition(s).

The question is: What can be done to insure the depostion this non-party, is that of a reasonable, rational person, and not the rantings of a delusional, irrational person?

 

[stephenk]

Who are you in relation to the deponent?

 

[kmckenn]

Victim - Plaintiff.

This gets to be very complicated but... The Deponent is/was my workplace harasser/stalker (co-worker). I had rebuked the Deponents sexual/romantic advances at the workplace, and reported extreme hostility resulting from that, to the Defendant. The Defendant and Deponent then engaged in a retaliatory conspiracy (blaming the victim), and I was terminated for Company Policy/Rule violations. The Deponent was then terminated not for the "sexual harassment" I reported, but for "workplace violence", being an "Overt Threat" to co-worker(s).

 

[stephenk]

There is nothing you or your attorney can do to guarantee the deponent will be rational at the time of his deposition. I think your strategy would be for the deponent to be irrational at his deposition. makes your case stronger.

 

[kmckenn]

Thank-you for your input.

 

[badapple40]

Is this person still employed by the employer? If you can argue that they are in the custody or under the legal control of the employer, then you might be able to obtain an order for them to submit to a mental examination under FRCP 35.


Another option would be to bring this person into the suit as a Defendant, in which case you could then seek the order.

 

[rmet4nzkx]

Is this person still employed by the employer? If you can argue that they are in the custody or under the legal control of the employer, then you might be able to obtain an order for them to submit to a mental examination under FRCP 35.


Another option would be to bring this person into the suit as a Defendant, in which case you could then seek the order.

Accordning to one of OP's posts despondent was terminated, thus he could be included as a defendent, I don't know if he is already as one of the Does?

The Deponent was then terminated not for the "sexual harassment" I reported, but for "workplace violence", being an "Overt Threat" to co-worker(s).

 

[Quaere]

I'm sure you know that irrational ranting will be to your advantage.

Just make sure all of the applicable admonitions are covered before this witness starts to testify. The deponent needs to be completely locked in to his/her testimony.

Some general admonitions are found here:
http://www.fpanet.org/journal/articles/1998_Issues/jfp0898-art14.cfm

Given your deponents problems, you should make sure you cover all aspects of his/her condition and competence to testify. Some suggested questions are:

Do you feel fine physically?

Are you currently under a doctor’s care for any illness?
Does this illness affect your ability to remember or testify completely and accurately?

Are you under any medication right now?
Do any of the medications you are taking affect your ability to remember or testify completely and accurately?
If he/she says some of the meds have a certain side affects, ask if he/she is experiencing any of those symptoms now. *If so, he/she may not be competent to give testimony.
Are you taking ANY other medication?

If he/she insists there are no ill affects of meds or illness that would affect his/her testimony today, ask: So you feel that at the moment you are having no difficulties remembering and that you can testify accurately and completely?

Assuming he/she agrees to the above, ask:

If that should change, if you develop problems concentrating or develop any other symptoms, will you let me know right away?

Have you had any alcohol today?
If so, how much? *Reconsider whether or not to take testimony if witness has had any alcohol.
Is there anything at all preventing you in any way from giving accurate testimony today?

Is your memory working as well today as it usually does?

 

[kmckenn]

Quaere: "Thank you" is inadequate, but it's all this KB allows....