Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—S.D. Ohio: Aerospace contractor can depose VA psychiatrist over emotional distress in retaliation suit, (Aug 17, 2026)

By Mandavi Singh, LL.M.

The psychiatrist’s testimony was relevant to claimed emotional-distress damages and the VA failed to show that a narrow virtual deposition would impose an undue burden.

An aerospace and defense contractor may depose a VA psychiatrist identified as a hybrid fact and expert witness in an employee’s underlying Title VII retaliation suit, an Ohio federal court has found. Granting the contractor’s motion to compel, the court set aside the VA’s refusal to permit the deposition and enforced the subpoena. The psychiatrist’s decade-long treatment relationship with the employee made her testimony particularly significant to the employee’s claimed emotional distress, while the limited scope and virtual format of the deposition reduced the burden on the psychiatrist and the agency (Gipson v. Vertex Aerospace, LLC (V2X), No. 1:26-mc-11 (S.D. Ohio Aug. 11, 2026)).

Retaliation suit. The discovery dispute arose from a lawsuit pending in Maryland in which an employee alleged that the aerospace contractor retaliated against her because of a prior lawsuit against her former employer. She asserted Title VII retaliation and intentional infliction of emotional distress claims.

According to the employee, the contractor’s alleged conduct forced her to accept a markedly lower-paying job than the position for which she applied. She claimed resulting psychological harm, including anxiety, stress, humiliation, and other emotional and physical ailments.

To support those allegations, the employee identified her treating psychiatrist as a hybrid fact and expert witness. The psychiatrist, who works for a VA medical center, had treated the employee for nearly 10 years. The employee’s expert disclosures indicated that the psychiatrist would testify regarding the progression and intensification of her symptoms and their correlation with the period during which the contractor allegedly denied her employment.

VA refuses deposition. The contractor served the psychiatrist with a subpoena seeking a virtual deposition and informed the VA of its request. The agency refused to permit the testimony under 38 C.F.R. § 14.808. The VA instead offered a declaration in which the psychiatrist stated that she treated eight to nine patients each day, supervised graduate medical students, did not recall details of the employee’s treatment beyond those contained in her medical records, and had no expert testimony to provide concerning the subjects identified in the employee’s Rule 26(a)(2) disclosures.

The contractor declined the proposed substitute and moved to compel the deposition, contending that a declaration and medical records could not provide an adequate opportunity to examine the psychiatrist's treatment, opinions, methodology, or the basis for any conclusions.

Touhy regulations. The court first considered the standard governing the VA’s refusal to permit the psychiatrist’s testimony under its Touhy regulations. While some courts review such agency decisions under the APA, others apply the Federal Rules of Civil Procedure. Because the Sixth Circuit had not resolved the issue, the court followed decisions in the district applying Rules 26 and 45, an approach it found consistent with In re Bankers Trust Co., 61 F.3d 465 (6th Cir. 1995). It therefore considered relevance, need, scope, particularity, and burden.

Relevant testimony. The contractor readily satisfied its initial burden of establishing relevance. The employee attributed emotional distress to the contractor’s alleged retaliatory conduct, and her treating psychiatrist was expected to address the progression of those symptoms. The psychiatrist’s lengthy treatment relationship with the employee made her testimony “particularly significant” to the emotional-distress allegations. Her testimony could also bear directly on whether the contractor’s alleged conduct caused the distress for which the employee sought damages. Because the VA did not meaningfully contest relevance, the court found the contractor met its initial burden, shifting the inquiry to whether the requested discovery imposed an undue burden.

Deposition needed. The need for testimony also favored the contractor. No other identified witness could replicate the psychiatrist’s nearly decade-long treatment relationship with the employee, and the medical records did not necessarily reveal the full basis or scope of her opinions.

The psychiatrist’s status as a hybrid witness was particularly important. She was expected to provide both firsthand information arising from treatment and opinion testimony based on that treatment. Because a hybrid witness need not provide the same written expert report required of a retained expert, the contractor needed a deposition to test the substance, foundation, and scope of the anticipated testimony. The VA argued that the psychiatrist remembered nothing beyond the medical records. But the court found that her fact and expert testimony would be “most fairly provided through a deposition rather than a written declaration.”

Narrow request. The remaining discovery factors also favored enforcement. The subpoena sought only one virtual deposition of an identified witness and did not demand extensive additional discovery. Citing Johnson v. Gallia County Commissioners, No. 2:20-CV-65, 2021 WL 716621 (S.D. Ohio Feb. 24, 2021), the court found the request sufficiently narrow.

Its temporal scope was similarly limited. The contractor did not seek testimony about the employee’s entire decade-long treatment history but only treatment relevant to the period surrounding the alleged retaliation and resulting emotional distress.

Further, the subpoena identified the witness and anticipated subjects with sufficient specificity. Under Pan v. Kohl’s Department Stores, Inc., No. 2:12-CV-1063, 2015 WL 4346218 (S.D. Ohio July 15, 2015), particularity turns in part on whether the recipient has reasonable notice of what is sought. The subpoena satisfied that requirement.

VA burden. The closest issue was the burden imposed on the psychiatrist and the VA. The agency pointed to the psychiatrist’s substantial patient caseload and supervisory responsibilities and argued that diverting government medical personnel into private litigation could interfere with agency operations.

The VA also relied on Section 14.808, which generally restricts VA personnel from providing opinion or expert testimony concerning official VA information, subjects, or activities except on behalf of the United States or a DOJ-represented party.

The court recognized the VA’s legitimate institutional interest in managing demands placed on its employees. But Section 14.808 did not impose a categorical prohibition against testimony by a VA treating physician. Moreover, the contractor had sought a virtual deposition, limited its subject matter, and offered scheduling accommodations to reduce disruption.

Most importantly, the employee herself had identified the psychiatrist as a witness whose testimony could substantially affect the damages inquiry. A critical issue was whether the contractor’s conduct caused the emotional distress for which the psychiatrist treated her. In those circumstances, a written declaration was not an adequate substitute for the contractor’s opportunity to examine the witness.

Relying on OhioHealth Corp. v. U.S. Department of Veterans Affairs, No. 2:14-CV-292, 2014 WL 4660092 (S.D. Ohio Sept. 17, 2014), the court found the contractor’s need to defend itself and resolve important factual discrepancies outweighed the “minor burden” imposed on the psychiatrist and the VA.

Subpoena enforced. Weighing the relevance, need, narrow scope, limited time period, particularity, and scheduling accommodations against the asserted burden, the court concluded that the VA failed to establish undue burden. It therefore granted the motion to compel, set aside the VA’s denial of testimony, enforced the subpoena, and ordered the psychiatrist to appear for a virtual deposition at a mutually agreed time.

The case is No. 1:26-mc-00011-MWM.

Judge: McFarland, M.

Attorneys: Tesha Gipson, pro se. Colleen M. Koehler (Littler Mendelson) for Vertex Aerospace, LLC. Linda Mindrutiu, U.S. Attorney's Office, for the United States. Vertex Aerospace, LLC

Cases: EvidenceDiscovery Retaliation RemediesDamages OhioNews