Physical and Mental Examinations

Physical and Mental Examinations

Rule 35 is the one discovery device that a party cannot use alone. Depositions, interrogatories, and document requests go out on notice or written request, and the judge appears only if someone objects.¹ A party who wants an opponent examined by a licensed examiner needs a court order, unless the parties agree to the examination.² The rule gives the power to the court: the court where the action is pending may order a party whose mental or physical condition, including blood group, is in controversy to submit to an examination by a suitably licensed or certified examiner, and it has the same authority to order a party to produce for examination a person in the party's custody or under its legal control.³

An examination invades personal privacy more than any other form of discovery, which is why this device alone requires an order.⁴ The need for it is nonetheless real. A defendant sued over an injury will want its own physician, or a neutral one, to find the true extent of the injury.⁵ The order requirement lets the court weigh that need against the intrusion before anyone is examined.

The Supreme Court has settled the rule's validity. Sibbach v. Wilson & Co. held it valid, by a five-to-four vote, and applicable regardless of the law of the state in which the district court sat.⁶ Schlagenhauf v. Holder later held that Rule 35, applied to plaintiffs or defendants, is free of constitutional difficulty and within the scope of the Enabling Act.⁷ The rule's earlier text, as quoted in the case law, already carried the gatekeeping structure. An order could issue only on motion for good cause shown and upon notice to the person to be examined and to all other parties, and it had to specify the time, place, manner, conditions, and scope of the examination and who would perform it.⁸

Three questions organize the rest of the unit: who can be ordered to submit, what the movant must show first, and what the sides must exchange afterward.

Who May Be Examined

Rule 35 reaches two kinds of people: a party whose condition is in controversy, and a person in a party's custody or under its legal control.⁹ No one else qualifies. A deposition, by contrast, can take any person, party or not, and a subpoena compels a nonparty's attendance.¹⁰ The examination's narrower reach follows from its invasiveness. Only a party may be forced to undergo one, and then only if the party's condition is in controversy and the movant shows good cause.¹¹ The Supreme Court has said that the rule means what it says when it authorizes examination only of a party. As amended in 1970, it also allows examination of a person in a party's custody or legal control, but a stranger to the action cannot be examined, however useful the examination might be in deciding the case.¹²

Schlagenhauf shows what party means. Schlagenhauf, a bus driver, was a named defendant, and two codefendants, Contract Carriers and National Lead, petitioned for examinations of him. The question was whether Rule 35 required the movants to have filed a pleading against the person to be examined. The Court said no. Schlagenhauf was a party to the action by virtue of the original complaint, so the rule permitted his examination on his codefendants' petition, provided its other requirements were met.¹³ A pleading requirement, the Court added, would multiply cross-claims and counterclaims and would not fit the liberal, nontechnical application the Rules call for.¹⁴ The rule authorizes examination of either a plaintiff or a defendant, and no requirement exists that the party seeking the examination be opposed to the party examined.¹⁵ A defendant who suspects that a codefendant's health caused an accident therefore need not sue the codefendant merely to qualify for an examination.

Two limits keep the holding in proportion. Party status is only the first gate, and controversy and good cause come next. And the Court left open whether party extends to a real party in interest who is not a named party, so a named plaintiff or defendant clearly qualifies while the unnamed real party remains unresolved.¹⁶

Schlagenhauf's codefendants did not need to be his opponents to seek his examination, while Marsh has a real need and no way to reach Okafor. What separates the two is party status in the action. Marsh is not left without a tool, because the device that does reach strangers is the deposition, and a witness's attendance can be compelled by subpoena.¹⁷

Marital status does not change the analysis. A wife who has not sued is not a party, and her husband's claim does not by itself put her condition in controversy. If she joins the suit to recover for her own loss of consortium or pain and suffering, she becomes a party, and her condition could well be in controversy.¹⁸

The custody clause does its clearest work with children. A minor child may qualify as a person in a parent's custody when the parent is a party and the child's condition or blood type is in controversy, as in a paternity suit.¹⁹ The court then orders the parent, who is a party, to produce the child, who need not be one. The rule was soon held to permit blood tests in a paternity action, and it has not since been doubted that the rule applies to any action.²⁰

Controversy and Good Cause

A qualifying person is only the first gate. The movant must also satisfy two predicates: the person's condition must be in controversy, and good cause must support the examination. The rule permits an order only on motion for good cause and on notice to all parties and the person to be examined.²² The notice lets the examinee respond before the court acts, which suits the device that intrudes most and alone requires a judge's approval in advance.²³

Both predicates demand more than relevance. Relevance to a claim or defense already defines the general scope of discovery, and Rule 35's condition-in-controversy requirement operates as a narrower substitute for that scope.²⁴ Conclusory allegations in the pleadings do not satisfy the predicates, and neither does mere relevance. The movant must affirmatively show that each condition for which examination is sought is genuinely in controversy and that good cause exists for each particular examination.²⁵ The word each matters, because good cause for one kind of examination may be absent for another.²⁶

The showing is not heavy in every case. The movant need not prove the merits, and an evidentiary hearing is not required in all cases. Affidavits or other usual methods can carry the showing, so long as the judge has enough information to perform the function the rule assigns.²⁷

When the examinee's own pleading puts the condition at issue, the pleading supplies both predicates. A plaintiff in a negligence action who asserts mental or physical injury places that injury clearly in controversy and gives the defendant good cause to examine its existence and extent. The same holds for a defendant who asserts a mental or physical condition as a defense, as when insanity is raised against a divorce claim.²⁸ The party chose to make the condition central, so little remains for the movant to prove. A malpractice plaintiff's condition after the operation is plainly in controversy, and the defendant may have a physician examine it. A breach-of-contract plaintiff has put no mental condition at issue, and a defendant who merely suspects the plaintiff invented the incident would probably be refused a mental examination for signs of delusion.²⁹

Schlagenhauf supplies the converse. The bus driver had not asserted his own condition in support of or in defense of any claim, so his codefendants had to carry the whole showing.³⁰ Their pleadings alleged in general terms that he was not mentally or physically capable of driving the bus, one cross-claim added a narrower allegation that his eyes and vision were impaired, and an attorney's affidavit described his conduct before the collision. The trial court ordered one examination in each of four specialties: internal medicine, ophthalmology, neurology, and psychiatry. The Supreme Court held that the record could not support even that corrected order. Nothing in the pleadings or the affidavit gave a basis for believing he suffered from a mental or neurological illness warranting wide-ranging psychiatric or neurological examinations, and nothing justified the broad internal medicine examination.³¹

The Court's reason was that an accident and a general charge of negligence do not automatically justify sweeping examinations of a party who has not put his own condition in issue. Otherwise such examinations could be ordered routinely in automobile accident cases, and the Court required a discriminating application of the rule's limits.³² That reasoning leaves room for a narrow examination matched to a specific, supported allegation, such as the one about the driver's vision, while a general assertion of incapacity supports none.

A movant who clears both predicates receives an order only as broad as the showing. The order must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.³³ Schlagenhauf shows the reason. The movants there had requested some half dozen examinations in the alternative, and the trial court approved them all instead of choosing among them. The Supreme Court called that a clear abuse and emphasized that the order must fit the scope of the examination to the condition in controversy.³⁴

Sacramona v. Bridgestone/Firestone, Inc., a magistrate judge's decision that illustrates the standard without controlling it, shows both predicates under pressure. The defendants learned in discovery that the plaintiff was a former intravenous drug user who had shared needles, that he reported unprotected sexual activity, and that his treating physician had urged him to take an HIV test, which he never took.³⁵ They moved to compel a blood test on the theory that a claim for future damages puts life expectancy in issue. The court refused to order the test. It read condition in controversy narrowly, to mean only a condition for which the plaintiff seeks recovery, because this form of discovery is more invasive of personal privacy than any other.³⁶ Treating a future-damages claim as enough would expose every such claimant to testing.

Good cause turned on a balance of interests, and the same facts can balance differently depending on the tool. Had the plaintiff already been tested and held the results, the device would have been a Rule 34 request, and the balance might have swung toward disclosure, because producing an existing record intrudes less than ordering a new invasive test.³⁷

The ordinary case looks different. Painter sues Toyota for injuries from an alleged product defect, and Toyota would want its own physician, or a neutral one, to find the true extent of his injuries. Rule 35 authorizes the examination, but because the examination is invasive, the rule also requires a court order absent agreement. In most personal-injury cases the plaintiff, conceding the inevitable, stipulates.³⁸ A claim of substantial injuries will almost always justify an order anyway, so the parties often arrange the examination without one.³⁹ The scope still tracks the pleading. If Painter seeks damages only for physical injuries, Toyota presumably cannot obtain a mental examination, but if he adds a claim for emotional distress, he arguably places his mental condition in controversy.⁴⁰

Reports and Waiver

The examination sets off an exchange of reports that runs in a fixed order. On request by the party against whom the order issued, or by the person examined, the movant must deliver a copy of the examiner's report together with like reports of all earlier examinations of the same condition (Rule 35(b)(1)).⁴² Nothing moves until the examined side asks.

The report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests (Rule 35(b)(2)).⁴³ The detail matters because the reports preview the medical testimony for both sides and give each side a basis for deposing the other's medical witnesses.⁴⁴

The exchange then runs the other way. After delivering its reports, the movant may request, and is entitled to receive, like reports of all earlier or later examinations of the same condition from the party against whom the order issued. A party with custody or control of the person examined need not deliver those reports if it shows that it could not obtain them (Rule 35(b)(3)).⁴⁵ The coverage differs slightly: the movant's own duty reaches earlier examinations, while the examinee's reaches both earlier and later ones.

The sequence in that scene is the one the rule sets, with Hollis's request opening the exchange and Brandt's demand arriving only after Brandt has delivered. The same request carries a second consequence. By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have, in that action or any other action involving the same controversy, concerning testimony about all examinations of the same condition (Rule 35(b)(4)).⁴⁶ The privilege at stake is typically the doctor-patient privilege.⁴⁷ The rule fixes the waiver's trigger, subject, and reach. The trigger is the examinee's own choice, either to request and obtain the report or to depose the examiner. The subject is testimony about all examinations of the same condition, whoever performed them. The reach extends to any other action involving the same controversy. The logic is reciprocity: an examinee who obtains the other side's medical findings opens the examinee's own doctors' findings on the same condition.

An examinee who does nothing triggers nothing. The waiver arises only from requesting and obtaining the report or deposing the examiner, so an examinee who does neither has waived nothing under Rule 35(b)(4).⁴⁸ The movant's right to like reports also arises only after the movant has delivered its own, so the movant gets no reciprocal reports from an examinee who never asked for any.⁴⁹ The silent examinee keeps the protection and forgoes the preview.

The duty to deliver has enforcement behind it. An earlier version of the rule, quoted in Buffington v. Wood, let the court order delivery on just terms if the examined party refused, and it let the court exclude a physician's testimony at trial if the physician failed or refused to make a report.⁵⁰ The exclusion remedy gives the duty its force, because an examiner could otherwise testify without ever committing findings to paper for the other side.

Rule 35(b) also applies to an examination made by the parties' agreement, unless the agreement states otherwise, and it does not preclude obtaining an examiner's report or deposing an examiner under other rules.⁵¹ The first clause matters because the parties often arrange an examination without a court order.⁵² If the exchange covered only ordered examinations, it would vanish in the setting where examinations most often occur. The second clause means that the reciprocal exchange is not the only route to medical reports. A footnote in Buffington v. Wood observes that a number of district courts, in cases both with and without an examination by the adversary, have recognized procedures other than Rule 35(b)(1) for medical-report exchange, and it declines to approve a contrary view.⁵³ The results of a Rule 35 examination are also almost always admissible at trial in the same proceeding, so the exchange previews evidence that will probably be used.⁵⁴