By Christopher A. Matheson
Civil Rule 35, which allows for the physical and mental examination of certain persons, lends itself to controversy. In 1891, the U.S. Supreme Court compared a CR 35-style examination to "compulsory stripping and exposure, as by a blow."1
State courts gradually codified rules for these examinations and the federal courts followed suit. But although the general rules are well established, there is a broad disagreement among attorneys as to what constitutes proper practice. This article will examine what litigants typically demand when dealing with CR 35 examinations.
CR 35 allows for the examination of any party, or person in the custody or control of a party, "When the mental or physical condition ... is in controversy...."2 Practitioners who specialize in personal injury work may forget that CR 35 has fairly broad application and is used in paternity suits or if a party's competency is at issue. The party requesting the examination need only show "good cause" that an examinee's mental or physical condition is "in controversy." This is a fairly low hurdle and there are few legitimate objections to a CR 35 exam in personal injury actions.
Assuming that an examinee's mental or physical condition is in controversy, CR 35 imposes only two rules as to how the examination should take place. First, it allows the examinee to have a representative present to "observe but not interfere with or obstruct the examination."3 There is no limitation on who this person may be: It can be a friend, a relative, the examinee's counsel or their treating physician. There also is no guidance on when a representative's behavior crosses the line from mere observation to interference and/or obstruction. In any event, the parties should discuss who the examinee's representative will be in advance of the exam.
CR 35 also allows the examinee to make an audiotape of the examination "in an unobtrusive manner."4 Again, if the examinee intends to make an audio recording, the parties should discuss before the exam the "unobtrusive manner" in which the recording will be made. The parties also should determine how and when copies of the audiotape should be produced, which CR 35 does not discuss.
Finally, CR 35 requires the physician or psychologist to prepare a "detailed written report" of the examination.5 The report must include "the examiner's findings," the "results of all tests made, diagnosis and conclusions," and "like reports of all earlier examinations of the same condition...," and must be delivered within 45 days of the exam.6 The CR 35 report is an exception to the restrictions imposed by CR 26(b)(5) regarding discovery of experts: The CR 35 examiner must produce the report even if he or she will be identified as a non-testifying expert. However, if the examiner fails to prepare a report, the court can exclude the examiner from offering testimony at trial absent a showing of good cause.7
These are the only three issues CR 35 resolves: Everything else is left up to the parties.8 And invariably, the examinee's counsel will seek to impose some condition on the exam that CR 35 does not address. At this point, defense-minded attorneys (and, full disclosure, I work at a defense-minded law firm) might ask themselves, "Why would I agree to anything other than what CR 35 requires?"
This is a valid question. Defense counsel may believe that no variation from the rule is warranted. But taking a hard line against compromise will sabotage any stipulation and likely land you in front of a judge. Both sides need to make good-faith accommodations if they want to avoid wasting the court's time on discovery disputes.
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