NOTES TO RULE 35

HISTORY: (Amended July 1, 1970; Aug. 1, 1987; Nov. 18, 1988; Dec. 1, 1991)

AMENDMENTS: 1988. Act Nov. 18, 1988, in subsec. (a), substituted "physical examination by a physician, or mental examination by a physician or psychologist" for "physical or mental examination by a physician"; in subsec.  (b), inserted "or psychologist" in the heading and in paras. (1) and (3) of the text wherever appearing; and added subsec. (c).

Notes of Advisory Committee on Rules.

Physical examination of parties before trial is authorized by statute or rule in a number of states. See Ariz Rev Code Ann (Struckmeyer, 1928) § 4468; Mich Court Rules Ann (Searl, 1933) Rule 41, § 2; 2 NJ Comp Stat (1910), NY CPA (1937) § 306; 1 SD Comp Laws (1929) § 2716A; 3 Wash Rev Stat Ann (Remington, 1932) § 1230-1.

Mental examination of parties is authorized in Iowa. Iowa Code (1935) ch 491-F1. See McCash, The Evolution of the Doctrine of Discovery and Its Present Status in Iowa, 20 Ia L Rev 68 (1934).

The constitutionality of legislation providing for physical examination of parties was sustained in Lyon v Manhattan Railway Co. 142 NY 298, 37 NE 113 (1894), and McGovern v Hope, 63 NJL 76, 42 Atl 830 (1899). In Union Pacific Ry. Co. v Botsford, 141 US 250, 11 S Ct 1000, 35 L Ed 734 (1891), it was held that the court could not order the physical examination of a party in the absence of statutory authority. But in Camden and Suburban Ry. Co. v Stetson, 177 US 172, 20 L Ed 617, 44 L Ed 721 (1900) where there was statutory authority for such examination, derived from a state statute made operative by the conformity act, the practice was sustained. Such authority is now found in the present rule made operative by the Act of June 19, 1934, ch 651, USC, Title 28, former § 723b (now § 2072) (Rules in actions at law; Supreme Court authorized to make) and former § 723c (now § 2072) (Union of equity and action at law rules; power of Supreme Court).

Notes of Advisory Committee on 1970 Amendments to Rules.

Subdivision (a).

Rule 35(a) has hitherto provided only for an order requiring a party to submit to an examination. It is desirable to extend the rule to provide for an order against the party for examination of a person in his custody or under his legal control. As appears from the provisions of amended Rule 37(b)(2) and the comment under that rule, an order to "produce" the third person imposes only an obligation to use good faith efforts to produce the person.

The amendment will settle beyond doubt that a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examination. Further, the amendment expressly includes blood examination within the kinds of examinations that can be ordered under the rule. See Beach v Beach, 114 F2d 479 (DC Cir 1940). Provisions similar to the amendment have been adopted in at least 10 states: Calif Code Civ Proc § 2032; Ida R Civ P 35; Ill S-H Ann c 110A, § 215; Md R P 420; Mich Gen Ct R 311; Minn R Civ P 35; Mo Vern Ann R Civ P 60.01; N Dak R Civ P 35; NY CPL § 3121; Wyo R Civ P 35.

The amendment makes no change in the requirements of Rule 35 that, before a court order may issue, the relevant physical or mental condition must be shown to be "in controversy" and "good cause" must be shown for the examination. Thus, the amendment has no effect on the recent decision of the Supreme Court in Schlagenhauf v Holder, 379 US 104 (1964), stressing the importance of these requirements and applying them to the facts of the case. The amendment makes no reference to employees of a party. Provisions relating to employees in the State statutes and rules cited above appear to have been virtually unused.

Subdivision (b)(1).

This subdivision is amended to correct an imbalance in Rule 35(b)(1) as heretofore written. Under that text, a party causing a Rule 35(a) examination to be made is required to furnish to the party examined, on request, a copy of the examining physicians' report. If he delivers this copy, he is in turn entitled to receive from the party examined reports of all examinations of the same condition previously or later made. But the rule has not in terms entitled the examined party to receive from the party causing the Rule 35(a) examination any reports of earlier examinations of the same condition to which the latter may have access. The amendment cures this defect.  See La Stat Ann, Civ Proc art 1495 (1960); Utah R Civ P 35(c).

The amendment specifies that the written report of the examining physician includes results of all tests made, such as results of X-rays and cardiograms. It also embodies changes required by the broadening of Rule 35(a) to take in persons who are not parties.

Subdivision (b)(3).

This new subdivision removes any possible doubt that reports of examination may be obtained although no order for examination has been made under Rule 35(a). Examinations are very frequently made by agreement, and sometimes before the party examined has an attorney. The courts have uniformly ordered that reports be supplied, see 4 Moore's Federal Practice para.35.06, n 1 (2d ed 1966); 2A Barron & Holtzoff, Federal Practice and Procedure § 823, n 22 (Wright ed 1961), and it appears best to fill the technical gap in the present rule.

The subdivision also makes clear that reports of examining physicians are discoverable not only under Rule 35(b) but under other rules as well. To be sure, if the report is privileged, then discovery is not permissible under any rule other than Rule 35(b) and it is permissible under Rule 35(b) only if the party requests a copy of the report of examination made by the other party's doctor. Sher v De Haven, 199 F2d 777 (DC Cir 1952), cert denied 345 US 936 (1953). But if the report is unprivileged and is subject to discovery under the provisions of rules other than Rule 35(b)--such as Rules 34 or 26(b)(3) or (4)--discovery should not depend upon whether the person examined demands a copy of the report. Although a few cases have suggested the contrary, e.g., Galloway v National Dairy Products Corp. 24 FRD 362 (ED Pa 1959), the better considered district court decisions hold that Rule 35(b) is not preemptive.  E.g., Leszynski v Russ, 29 FRD 10, 12 (D Md 1961) and cases cited. The question was recently given full consideration in Buffington v Wood, 351 F2d 292 (3d Cir 1965), holding that Rule 35(b) is not preemptive.

Notes of Advisory Committee on 1987 Amendments to Rules.

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on December 1991 Amendment of Rule.

The revision authorizes the court to require physical or mental examinations conducted by any person who is suitably licensed or certified.

The rule was revised in 1988 by Congressional enactment to authorize mental examinations by licensed clinical pyschologists. This revision extends that amendment to include other certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute.

The requirement that the examiner be suitably licensed or certified is a new requirement. The court is thus expressly authorized to assess the credentials of the examiner to assure that no person is subjected to a court-ordered examination by an examiner whose testimony would be of such limited value that it would be unjust to require the person to undergo the invasion of privacy associated with the examination. This authority is not wholly new, for under the former rule, the court retained discretion to refuse to order an examination, or to restrict an examination. 8 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2234 (1986 Supp.). The revision is intended to encourage the exercise of this discretion, especially with respect to examinations by persons having narrow qualifications.

The court's responsibility to determine the suitability of the examiner's qualifications applies even to a proposed examination by a physician.  If the proposed examination and testimony calls for an expertise that the proposed examiner does not have, it should not be ordered, even if the proposed examiner is a physician. The rule does not, however, require that the license or certificate be conferred by the jurisdiction in which the examination is conducted.