§35.5 Purpose and Procedure

• Jurisdiction: Washington

§35.5PURPOSE AND PROCEDURE

The purpose of and procedures under CR 35 and Fed. R. Civ. P. 35 are discussed below.

(1) Purpose

CR 35 is designed to permit discovery concerning the mental or physical condition of a party or a person in the custody or under the legal control of a party when that person's mental or physical condition is "in controversy." The rule does not require that the party's mental or physical condition be "at issue"—only that the party's condition is a substantial point in dispute. See 3 Karl B. Tegland, Washington Practice: Rules Practice, CR 35 (7th ed. 2013). The rule attempts to provide a "level playing field" for determining a party's mental or physical condition when that condition is relevant to the litigation. O'Sullivan v. Minnesota, 176 F.R.D. 325 (D. Minn. 1997). Although an order for a CR 35 examination invades the privacy of the party against whom it is entered, such examinations are authorized in most states on the grounds that they promote truth and justice. See Richard J. Barnet, Compulsory Medical Examination Under the Federal Rules, 41 Va. L. Rev. 1059, 1064 n.25 (1955); see also RCW 5.60.060(4)(b) (providing that a plaintiff in a personal injury or wrongful death action waives the physician-patient privilege 90 days after filing a complaint). Thus, like the other discovery rules, CR 35 is to be broadly and liberally construed. See Schlagenhauf v. Holder, 379 U.S. 104, 114-15, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964).

CR 35(a)(1) allows for the physical or mental examination of a party or a person who is in the custody of or under the legal control of a party. The term "party" refers to both plaintiffs and defendants, and examinations under this rule are not limited to personal injury actions. For example, a respondent in a child custody dispute may be required to submit to a psychological examination to determine parental fitness. See In re Welfare of Green, 14 Wn.App. 939, 943-44, 546 P.2d 1230 (1976) (describing the psychological evaluation of mother ordered in child deprivation proceeding). Similarly, a defendant asserting a claim or defense that assumes a particular physical capability (such as eyesight, hearing, or strength) could also be required to undergo a physical examination. See Harabedian v. Superior Court, 195 Cal. App. 2d26,31-32,15 Cal. Rptr. 420 (Cal. App. 1961) (explaining that when the defendant-driver admitted a congenital defect and "blurring," the court properly found that the...