Chapter §35.6 Analysis

• Jurisdiction: Washington

§35.6 ANALYSIS

CR 35 can be used in many types of litigation to obtain relevant information about the mental or physical condition of a party or a person under a party's legal custody or control. Although the rules require a showing of good cause to obtain an order compelling the examination, like the other discovery rules, CR 35 will be liberally construed in favor of permitting the requested discovery.

(1)Application of rule

The most common use of CR 35 is in personal injury cases, although the rule has also been invoked in support of court-ordered examinations in other settings. These include actions to determine parental fitness, In re Welfare of Green, 14 Wn.App. 939, 943-44, 546 P.2d 1230 (1976); DNA testing to determine the source of bodily fluids in sexual harassment claims, Hargrave v. Brown, 783 So.2d 497, 499, 501 (La. Ct. App. 2001); McGrath v. Nassau Health Care Corp., 209 F.R.D. 55, 59 (E.D.N.Y. 2002); and citizenship proceedings, Dulles v. Quan Yoke Fong, 237 F.2d 496, 498 (9th Cir. 1956). Court-ordered examinations are also becoming a common request in contested custody disputes. See generally Donald L. Enockson, Steven Z. Lange & Kathleen M. Newman, Rule 35: Discovery of a Parent's Mental Health in Custody Cases, 26 Fam. L.Q. 43 (Spring 1992).

Medical examinations of a defendant may also be ordered when the defendant's physical or mental condition is in controversy. See, e.g., Richardson v. Richardson, 124 Colo. 240, 251, 236 P.2d 121 (1951) (allowing court-ordered mental examination of defendant who pleaded insanity as an affirmative defense). Although CR 35 examinations are not limited to personal injury actions, CR 35 is not a mechanism for ordering examinations in civil commitment proceedings governed by Chapter 71.09 RCWto determine whether a person should be committed as a sexually violent predator. See In re Detention of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002).

(2)Discretion of court

The decision to compel a physical or mental examination under CR 35 rests in the sound discretion of the trial court. Beagle v. Beagle, 57 Wn.2d 753, 756, 359 P.2d 808 (1961); Welfare of Green, 14 Wn.App. at 943 (holding the trial judge has discretion to decide whether "good cause" and "in controversy" requirements of CR 35 have been met).

Even when both the "in controversy" and "good cause" elements are met, a court may, in its discretion, deny a requested mental or physical examination when the sought-after information may be obtained through less intrusive means. SeeAcosta v. Tenneco Oil Co., 913 F.2d 205, 209 (5th Cir. 1990) (denying defendant's request to take the vocational examination of plaintiff because defendant already had the information it needed to pursue its defense without a repetitive examination of the plaintiff); Storms v. Lowe's Home Ctrs., Inc., 211 F.R.D. 296,298 (W.D. Va. 2002) (denying defendant's request to take the vocational examination of plaintiff because plaintiff provided Lowe's with a copy of his medical records and all other discoverable material requested by Lowe's, and plaintiff would be deposed on all relevant matters); Shumaker v. West, 196 F.R.D. 454, 457 (S.D. W. Va. 2000) (denying defendant's request to take the psychological/vocational examination of plaintiff because other "ample evidence" is "available from which Defendant can obtain the information he currently seeks"); Pearson v. Norfolk-S. Rwy., 178 F.R.D. 580,582 (M.D. Ala. 1998) (denying defendant's request to take a mental examination of a minor child because the child's written records were available and defendant could interview relatives, friends, and acquaintances concerning the child's intellectual functioning) ;Marroni v. Matey, 82 F.R.D. 371,372 (E.D. Pa. 1979) (denyingplaintiff's request to take the psychological examination of the defendant operator of a boat because less intrusive methods of discovery were available).

(3)"In controversy" requirement

The party seeking a CR 35 examination has the burden of establishing that the condition for which the examination is sought is "in controversy." Generally, a matter is "in controversy" if it is a material issue in the case or is a question that must be resolved by the jury at trial. The moving party must make an affirmative showing "that each condition as to which the examination is sought is really and genuinely in controversy ...." Welfare of Green, 14 Wn.App. at 942 (quoting Schlagenhaufv. Holder, 379 U.S. 104, 118, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964)). Matters are not "in controversy" if they have been admitted or stipulated or if a party abandons or withdraws the issue from litigation. Winters v. Travia, 495 F.2d 839, 841 (2d Cir. 1974).

Caveat: Withdrawing a particular injury claim does not guarantee that the underlying condition will not continue to be "in controversy." See Pozefsky v. Baxter Healthcare Corp., 194 F.R.D. 438, 439 (N.D.N.Y. 2000) (granting defendant's motion for psychiatric examination even though plaintiff had withdrawn her emotional injury claim because the plaintiff's psychiatric condition may have been the source of her physical problems).

The "in controversy" requirement is not synonymous with the relevancy rule of other discovery provisions. Use of the special "in controversy" language in CR 35 indicates that there must be a greater showing than that of ordinary relevance under CR 26 before the conditions of the rule are satisfied. As the United States Supreme Court explained in Schlagenhauf, the "in controversy" requirement is not met "by mere conclusory allegations of the pleadings—nor by mere relevance to the case ...."379 U.S. at 118. The mental or physical condition must be directly at issue in the litigation before that condition will be considered "in controversy." Welfare of Green, 14 Wn.App. at 942 (mother's mental condition "in controversy" in deprivation hearing); see also Sacramona v. Bridgestone I Firestone, 152 F.R.D. 428,431 (D. Mass. 1993) (denying a blood test to diagnose HIV/AIDS as too attenuated when "defendants are asking this court to take extraordinary measures because plaintiff's admitted lifestyle is relevant to the possibility that plaintiff might be infected with AIDS, which is relevant to plaintiff's life expectancy, which is relevant to future damages in plaintiff's underlying cause of action").

A few federal courts have compelled a DNAtest under Fed. R. Civ. P. 35 upon the plaintiff's showing that the defendant's DNA was "in controversy." In D'Angelo v. Potter, 224 F.R.D. 300, 302 (D. Mass. 2004), the plaintiff alleged she was raped by her male supervisor, who denied having any sexual relationship with the plaintiff, consensual or otherwise. Holding that plaintiff had satisfied Fed. R. Civ. P. 35's "in controversy" and "good cause" requirements, the court compelled the supervisor to submit to a DNAtest to determine if he was the source of a semen sample found in the location in which plaintiff alleged she was raped. InHargrave v. Brown, 783 So.2d 497, the plaintiff sought a DNA test of defendant to prove he was the source of a semen stain on plaintiff's skirt, which allegedly resulted from an act of sexual harassment. The Hargrave court held that a defendant could be compelled to provide a DNA sample if the plaintiff first makes "a prima facie showing of the reasonable possibility of a match ...." Id. at 500-01.

In the context of psychiatric examinations, courts have considered various factors to determine whether the plaintiff's psychiatric or mental condition is truly in controversy. The majority of federal courts have held that plaintiffs do not place their mental condition in controversy merely by claiming damages for mental anguish or "garden variety" emotional distress. Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 553 (N.D. Ga. 2001).

A similar majority ... also recognize that a mental exam is warranted when one or more of the following factors are present: (1) a tort claim is asserted for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder is made; (3) a claim of unusually severe emotional distress is made; (4) plaintiffintends to offer expert testimony in support of claim for emotional distress damages; and/or (5) plaintiff concedes that her mental condition is in controversy within the meaning of Rule 35.

Id. at 554.

There are also a few courts that find the "in controversy" requirement met whenever the plaintiff raises any allegation of emotional injury. For example, in Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1232 (N.D. Cal. 1993), the plaintiff brought a wrongful termination suit, and the defendant moved for a psychological examination. By the time of the motion, the plaintiff had withdrawn her claims for negligent and intentional infliction of emotional distress; she made no demand for psychiatric care expenses; she planned to offer no expert testimony; and she agreed to present evidence of only "normal" emotional distress at trial. Nevertheless, the court ordered her to undergo a psychological examination. SeeAli v. Wang Labs., Inc., 162 F.R.D. 165, 168 (M.D. Fla. 1995); Shepherd v. Am. Broadcasting Cos., 151 F.R.D. 194, 212-13 (D.D.C. 1993), rev'd in part on other grounds, 62 F.3d 1469 (D.C. Cir. 1995) (explaining that a complaint that goes beyond a mere assertion of emotional distress is sufficient to put the plaintiff's mental condition "in controversy," even without a claim of intentional or negligent infliction of emotional distress).

(4) Good cause requirement

Although the "in controversy" and "good cause" requirements are necessarily related, a showing of good cause is nevertheless a separate and distinct prerequisite for an order under CR 35. See Schlagenhauf, 379 U.S. at 118-19 (interpreting the federal rule). To demonstrate good cause, the moving party must make a showing of...