FOR PUBLICATION


ATTORNEYS FOR APPELLANTS:                    ATTORNEYS FOR APPELLEES:

DAVID J. CUTSHAW                             JAMES L. HOUGH
GABRIEL ADAM HAWKINS                         AMI ANDERSON NOREN
KELLEY J. JOHNSON                            Spangler, Jennings & Dougherty, P.C.
TaKEENA M. THOMPSON                          Merrillville, Indiana
Cohen & Malad, LLC

                                                                         FILED
Indianapolis, Indiana

                                                                      Oct 12 2012, 8:40 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                 CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




JEFFREY RIGGS and MARK ASHMANN,              )
                                             )
     Appellants-Plaintiffs,                  )
                                             )
            vs.                              )       No. 45A03-1109-CT-394
                                             )
MARK S. WEINBERGER, M.D.,                    )
MARK WEINBERGER, M.D., P.C.,                 )
MERRILLVILLE CENTER FOR                      )
ADVANCED SURGERY, LLC, and                   )
NOSE AND SINUS CENTER, LLC,                  )
                                             )
     Appellees-Defendants.                   )



                    APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Jeffery A. Dywan, Judge
                  Cause No. 45D11-1011-CT-0210; 45D11-1009-CT-0175



                                  October 12, 2012

                              OPINION ON REHEARING

BAKER, Judge
       This case comes before us on rehearing. In this interlocutory appeal, appellants-

plaintiffs Mark Ashmann and Jeffrey Riggs appealed the trial court’s grant of a Motion

for a Trial Rule 35 Psychological Examination filed by appellees-defendants Mark S.

Weinberger, M.D.; Mark S. Weinberger, M.D., P.C.; Merrillville Center for Advanced

Surgery, LLC; and Nose and Sinus Center, LLC (collectively, the Weinberger Entities).

Ashmann and Riggs contended that the Weinberger Entities did not show that Ashmann

and Riggs placed their mental condition in controversy. Moreover, Ashmann and Riggs

asserted that the Weinberger Entities did not have good cause for requesting the

examinations.

       In our memorandum decision, we affirmed the trial court’s decision and remanded

this cause for further proceedings. Riggs v. Weinberger, M.D., No. 45A03-1109-CT-394

Ind. Ct. App. May 31, 2012). Ashmann and Riggs now petition for rehearing, requesting

that we clarify whether we determined “that a trial court ‘may’ or ‘must’ order an

involuntary psychiatric examination when confronted with the facts and circumstances of

this case.” Appellants’ Petition for Rehearing p. 2. We grant rehearing for the limited

purpose of clarifying our original opinion.




                                              2
                                              FACTS

       In resolving the question that Riggs and Ashmann present on rehearing, we

incorporate below the relevant facts and discussion set forth in our original memorandum

decision.1

       Ashmann and Riggs filed their respective medical malpractice complaints
       against the Weinberger Entities on September 16, 2010, and November 24,
       2010. Ashmann alleged that he became Weinberger’s patient on April 3,
       2003. Ashmann further alleged that Weinberger failed to comply with the
       applicable standards of care and that as a direct and proximate result of
       Weinberger’s acts and omissions, Ashmann had suffered and would
       continue to suffer in the future “great pain, emotional distress and mental
       trauma.” Appellants’ App. p. 165. Ashmann described his emotional
       injuries as follows in his Reply Submission to the Medical Review Panel:


               Emotional injuries are also clearly relevant to this discussion.
               It is not unreasonable for Dr. Weinberger’s patients, after
               Weinberger fled the country and appeared on “America’s
               Most Wanted,” after learning that Dr. Weinberger drilled
               holes in their maxillary sinuses in the wrong place, and after
               hearing that Dr. Weinberger did not do the surgeries that he
               said he would do, to be emotionally distraught and injured
               with feelings of being “duped.” Emotional damages are
               particularly relevant in a case such as this, where Dr.
               Weinberger disappeared while actively treating [Ashmann].
               Most recently, Dr. Weinberger’s former patients, including
               [Ashmann], have had to relive the nightmare of his
               disappearance as news broke that Dr. Weinberger was found
               living in a tent on the side of the mountain in Italy in the
               middle of winter and, upon arrest, that he tried to harm
               himself to avoid extradition to the United States.

       Appellants’ App. p. 211-12.



1
  In light of our decision to incorporate the relevant portions of our unpublished memorandum decision
into this published opinion on rehearing, we deny the Weinberger Entities’ motion to publish as moot.
                                                  3
       Riggs alleged that he became Weinberger’s patient on January 30,
2003. Like Ashmann, Riggs further alleged that Weinberger failed to
comply with the applicable standards of care and that as a direct and
proximate result of Weinberger’s acts and omissions, Riggs had suffered
and would continue to suffer in the future “great pain, emotional distress
and mental trauma . . . .” Appellants’ App. p. 4. Also like Ashmann, Riggs
described his emotional injuries as follows in his Reply Submission to the
Medical Review Panel:

      Emotional injuries are also clearly relevant to this discussion.
      It is not unreasonable for Dr. Weinberger’s patients, after
      Weinberger fled the country and appeared on “American’s
      Most Wanted,” after learning that Dr. Weinberger drilled
      holes in their maxillary sinuses in the wrong place, and after
      learning that Dr. Weinberger did not do the surgeries that he
      said he would do, to be emotionally distraught and injured
      with feelings of being “duped.”

Appellants’ App. p. 215.

       In June and July 2011, the Weinberger Entities filed respective
Motions for Trial Rule 35 Psychological Examinations asking the trial court
to compel Ashmann and Riggs to attend psychological examinations. On
July 14, 2011, the trial court granted the Weinberger Entities’ motion as to
Riggs. The trial court’s order provides in relevant part as follows:

      The Plaintiff’s claims of emotional distress in this case
      exceed those of the typical Plaintiff who claims emotional
      injuries arising from physical trauma as a result of another’s
      negligent conduct. The emotional distress claim in this case
      arises not only from the date of the surgery at issue, but from
      a Defendant’s alleged activities long after the surgery was
      concluded. The nature of the emotional distress is more akin
      to negligent infliction of emotional distress, and is not the
      typical claim for emotional injuries which is evaluated by a
      jury without the assistance of expert testimony. The Court
      therefore finds that Plaintiff’s claim of emotional distress in
      this case is more complicated than that presented by the usual
      injury claim and that the Defendants’ request for a
      psychological examination to evaluate that claim has
      demonstrated good cause for the evaluation.

                                     4
Appellants’ App. p. 29.

       On July 18, 2011, the trial court also granted the Weinberger
Entities’ motion as to Ashmann. That order provides in relevant part as
follows:

      The circumstances in this case are quite similar to those
      addressed by this Court’s order . . . in . . . [Riggs’s] case. The
      Court has also been made aware that a different decision on
      this issue has been entered in a different case in another
      Room of the Superior Court. . . .

      Each plaintiff’s claim must be evaluated separately. As was
      the situation in the prior case before this Court, the Plaintiff’s
      claims of emotional distress in this case exceed those of the
      typical Plaintiff who claims emotional injuries arising from
      physical trauma as a result of another’s negligent conduct.
      The emotional distress claim in this case arises not only from
      the surgery at issue, but from Defendant Weinberger’s alleged
      activities sometime after the surgery was concluded. The
      nature of the emotional distress is more akin to negligent
      infliction of emotional distress, and is not the common claim
      for emotional injuries that is evaluated by a jury without the
      assistance of expert testimony. The Court therefore finds that
      the Plaintiff’s claim of emotional distress in this case is more
      complicated than that presented by the usual injury claim and
      that the Defendants’ request for a psychological examination
      to evaluate that claim has demonstrated good cause for the
      evaluation.

Appellants’ App. p. 193.




                                      5
                                DISCUSSION AND DECISION

          On appeal, we addressed the issue of whether the trial court erred in compelling

Ashmann and Riggs to submit to psychological examinations in accordance with Indiana

Trial Rule 35.2

          We concluded that Ashmann and Riggs put their mental condition in controversy

and that the Weinberger Entities established “good cause” for requesting the

examinations. Slip op. at 10. More particularly, we pointed out that

          Ashmann and Riggs both alleged past and future pain, emotional distress,
          and mental trauma. Further, their replies to the Medical Review Panel
          emphasized the uniqueness of their emotional distress and injuries where
          Dr. Weinberger allegedly did not do the surgeries that he said he would do,
          fled the country, appeared on ‘America’s Most Wanted’ and was found
          more than five years later living in a tent on the side of a mountain in Italy.

Id. at 9-10. As a result, we determined that based on such claims of unusually severe

emotional distress, the trial court did not abuse its discretion in finding that Ashmann and

Riggs put their mental condition in controversy. Id.




2
    Indiana Trial Rule 35 provides that

          [w]hen the mental or physical condition (including the blood group) of a party, or of a
          person in the custody or under the legal control of a party, is in controversy, the court in
          which the action is pending may order the party to submit to a physical or mental
          examination by a suitably licensed or certified examiner or to produce for examination
          the person in his custody or legal control. The order may be made only on motion for
          good cause shown and upon notice to the person to be examined and to all parties and
          shall specify the time, place, manner, conditions, and scope of the examination and the
          person or persons by whom it is to be made. (Emphases added).


                                                       6
       Similarly, we determined that the trial court did not abuse its discretion in

concluding that the Weinberger Entities established good cause for requesting the mental

examination. We reached that result because

       the plaintiffs allege[d] on-going mental trauma that began over eight years
       ago and is related to Dr. Weinberger allegedly drilling holes in the wrong
       places in their sinuses, fleeing the country, appearing on “America’s Most
       Wanted,” being found living in a tent on the side of a mountain in Italy, and
       attempting to commit suicide when apprehended, a mental examination is
       relevant to emotional damages issues that are genuinely in controversy in
       the case. In addition, the Weinberger Entities have shown a reasonable
       nexus between the Plaintiffs’ emotional distress and damages and the
       mental examination. Lastly, because the information obtained has to be
       properly processed and evaluated by a professional, the Weinberger Entities
       have demonstrated that it is not possible to obtain the desired information
       through means that are less intrusive than a compelled examination.

Slip op. at 10-11. In light of the above, we concluded that the trial court did not abuse its

discretion in granting the Weinberger Entities’ Motions for Trial Rule 35 Psychological

Evaluations. Id. at 11.

       At this juncture, we clarify our holding, yet reaffirm our conclusion that the trial

court properly exercised its discretion in this matter. An abuse of discretion occurs when

a decision is clearly against the logic and effects of the facts and circumstances of the

case. Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 742 (Ind. Ct. App. 2006).

That said, we in no way intimate that a trial court must compel an involuntary psychiatric

examination anytime that a plaintiff alleges that he or she has suffered “great pain,

emotional distress, and mental trauma” and that there is something “unique” about the

case. Indeed there are unique facts in every case.         In short, when a trial court is


                                             7
confronted with facts and circumstances like those before us, it may compel an

involuntary psychiatric examination in accordance with Indiana Trial Rule 35. There is

no requirement that it must do so.

       Having granted rehearing and provided clarification of our holding, we reaffirm

our original opinion in all respects.

BRADFORD, J., and DARDEN, S.J., concur.




                                          8
