## Facts

- Patricia Thompson sued The Haskell Company and an individual supervisor/co-worker (often identified as Zona), alleging sexual harassment and retaliatory discharge.
- Thompson alleged the harassment caused severe emotional harm, including a “severely depressed emotional state,” and that she was terminated on June 5, 1992 after she did not acquiesce to sexual advances.
- Ten days later, on June 15, 1992, Thompson met once with psychologist Dr. Laura (sometimes transcribed as “Lauren”) Lucas.
- Dr. Lucas was retained by Thompson’s prior counsel to conduct a diagnostic review and personality profile in anticipation of litigation, and she prepared a report for counsel.
- Dr. Lucas was not presented as a treating provider for ongoing therapy, and Thompson represented that Dr. Lucas was not expected to testify at trial.
- During discovery, defendants sought production of Dr. Lucas’s report and related materials.
- Thompson moved for a protective order, arguing the materials were protected from discovery as facts and opinions of a non-testifying expert retained in anticipation of litigation under Federal Rule of Civil Procedure 26(b)(4).

## Issues

1. Whether a psychological evaluation and report prepared before suit by a non-testifying expert retained for litigation is shielded from discovery under Rule 26(b)(4) absent a showing of “exceptional circumstances.”
2. Whether the defendants showed exceptional circumstances because the June 15, 1992 examination captured Thompson’s condition close in time to the alleged harassment and firing, and comparable information could not be obtained through other means (including a later Rule 35 examination).

## Decision

- The court denied Thompson’s motion for a protective order.
- The court ordered production of Dr. Lucas’s report and related materials.
- The court found exceptional circumstances because the examination occurred shortly after the termination and could contain information about Thompson’s mental condition at that time that could not be recreated through later examinations or other discovery.

## Legal Principles

- Under Federal Rule of Civil Procedure 26(b)(4), facts and opinions held by an expert retained in anticipation of litigation and not expected to testify are generally protected from discovery.
- Rule 26(b)(4) allows discovery from such a consulting expert when the party seeking discovery shows “exceptional circumstances” making it impracticable to obtain facts or opinions on the same subject by other means.
- When a plaintiff claims emotional distress as a component of damages, a mental-health evaluation performed close in time to the alleged injury may carry substantial evidentiary value on the nature and extent of the claimed condition.
- A later independent examination (including a Rule 35 exam) may not provide comparable information when it cannot capture the plaintiff’s mental state as it existed at the earlier, disputed point in time.
- In deciding whether exceptional circumstances exist, courts may consider the value of the requested material and whether equivalent information is realistically available through alternative discovery.

## Conclusion

In *Thompson v. The Haskell Co.*, the Middle District of Florida denied the plaintiff’s request to block discovery of a consulting psychologist’s pre-suit report, holding that although Rule 26(b)(4) generally protects non-testifying experts’ opinions, the defendants showed exceptional circumstances because the psychologist examined Thompson only ten days after the alleged retaliatory firing and no later examination or discovery method could provide the same information about her condition at that time.


Thompson v. The Haskell Co., 65 F. Empl. Prac. Cas. (BNA) 1088 (1994)