The psychiatrist should also obtain and review transcripts of the depositions of the plaintiff and key defense witnesses prior to conducting the mental examination, in order to place the plaintiff's account into context.
The psychiatrist also should insist upon having sufficient time and latitude to thoroughly explore the plaintiff's background. Sometimes a plaintiff's attorney will attempt to limit the examination to an hour or two or to restrict the examiner's areas of inquiry to the plaintiff's psychological reaction to the events at issue in the lawsuit. This is unacceptable, as it will make the exploration of possible Axis II issues virtually impossible. The psychiatrist should be prepared to give an affidavit to the court explaining why these restrictions are unworkable.Presentation of Axis II Findings
While an Axis II diagnosis might serve to exculpate the employer in some cases, such a result does not necessarily follow in every employment lawsuit. The specific role played by Axis II pathology should be presented carefully by the psychiatrist in the formulation of the case in deposition or trial testimony. The following are examples of such scenarios.
Plaintiff has a personality disorder that caused them to instigate events of which they now complain. If an employee with BPD or HPD engages in seductive banter or conduct and then complains of sexual harassment when co-workers respond, the personality disorder would be relevant to the defendant's liability, since a plaintiff who welcomes harassing conduct cannot later complain about it.
Plaintiff has a personality disorder that caused them to misinterpret words or actions of co-workers. An employee with BPD may interpret a supervisor's compliment or friendliness as a sexual overture. An employee with PPD may interpret co-workers' inadvertent failure to invite them to lunch as racially discriminatory. In these instances, the allegations of discrimination are a product of the plaintiff's personality disorder, rather than external reality.