Chapter 4 - § 4.3 • PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS

• Jurisdiction: Colorado

§ 4.3 • PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS

Under Rule 35, the court may order a physical or mental examination when the physical or mental condition of a party is in controversy and there is good cause for the examination.

§ 4.3.1—In Controversy Requirement

Physical and mental examinations are only available when the physical or mental condition of a party (or someone in custody of a party) is in controversy. See C.R.C.P. 35(a). The pleadings are usually enough to determine whether a party's physical or mental condition is in controversy. For example, when a plaintiff alleges damages for personal injuries, the plaintiff has placed his or her condition in controversy. See Braxton v. Luff, 558 P.2d 444, 445 (Colo. App. 1976). Allegations of past mental suffering, however, are not considered "mental injuries" within the meaning of Rule 35, so they do not place a party's mental condition in controversy. See Borquez v. Robert C. Ozer, P.C., 923 P.2d 166, 176 (Colo. App. 1995), aff'd in part, rev'd in part, 940 P.2d 371 (Colo. 1997). Moreover, a party's mental condition is not put in controversy solely because it may bear on his or her credibility as a witness. Tyler v. Dist. Ct., 561 P.2d 1260, 1262-63 (Colo. 1977) ("Were that proposition correct, every party, and indeed every witness, would be equally subject to mental examination in every case").

A parent's mental stability may be in controversy in a child custody case. Kane v. Kane, 391 P.2d 361, 364 (Colo. 1964). And the same holds true in the employment discrimination context. Herrera v. Lufkin Indus., 474 F.3d 675, 689-90 (10th Cir. 2007).

§ 4.3.2—Good Cause Requirement

Good cause is presumed in personal injury cases. See Braxton, 558 P.2d at 445. In other cases, good cause is easy to show if the "in controversy" requirement has been met. This is because a party's physical or mental condition is so personal and known to that party that fairness to the opposing party requires, when the condition is in controversy, that there be some way to discover contrary evidence. Thus, courts usually find good cause for an examination if the in controversy requirement has been met and the information sought is not available from other sources.

§ 4.3.3—Order of Examination

Under Rule 35, a physical or mental examination is only allowed upon order of the court or agreement of the parties. The order must specify the time, place, manner, conditions, and scope of the examination, and the person or persons who will...