Physical and Mental Examinations

AuthorAshley S. Lipson
Once in a while civil litigators get an
opportunity to poke and stab
their adversaries.
Chapter 9
Physical and Mental
Table of Contents
§9.10 Basic Training and Strategy
§9.20 Constructing and Timing Your Attack
§9.21 Ordering the Examination
§9.21(a) Notice
§9.21(b) Timing
§9.22 Obtaining the Examiner’s Reports
§9.30 Targets
§9.31 People Subject to Examination
§9.32 Taking Aim at the Examiner’s Reports
§9.40 The Rules That You Need
§9.41 Federal Rules Pertaining to Physical and Mental Examinations
§9.42 State Rules Pertaining to Physical and Mental Examinations
§9.50 Defenses and Countermeasures
§9.51 Compliance—Preparation for the Examination
§9.52 Bringing an Observer
§9.53 Taping the Examination
§9.54 Objecting to the Examination
§9.60 Enforcing Compliance
§9.70 The Forms That You Need
Form 9.1 Notice of Physical and Mental Examination
Form 9.2 Response to Notice for Physical and Mental Examination
Form 9.3 Motion to Compel Physical/Mental Examination
Form 9.4 Plaintiff’s Motion for Sanctions for Improper Testing
§9.10 Guerrilla Discovery 9-2
1 Even the right to examine a personal injury plaintiff should not be taken for granted. Consider Crider v. Sneider, 243 Ga. 642,
256 S.E.2d 335 (1979), a wrongful-death case arising from an auto accident; it featured a defendant who, during discovery,
claimed that he could not recall any of the events surrounding the accident because of “traumatic amnesia.” The plaintiff
moved to require the defendant to submit to mental and physical examinations. The Georgia Supreme Court held that the trial
courts refusal to grant the motion was not an abuse of discretion because plaintiff had failed to “show good cause” since it
appeared that the facts and circumstances of the collision could have been established by other sources of evidence.
In Winters v. Travia, 495 F.2d 839 (2d Cir. 1974), the trial court refused to order a personal injury plaintiff to submit to a phys-
ical or mental examination. The plaintiff, a Christian Scientist, sought damages for forced medication that was administered
during involuntary hospitalization. She claimed that the examinations would violate her right to freedom of religion. The court
ruled that her present condition was not “in controversy” since the plaintiff was willing to abandon the claim that any present or
anticipated disability was caused by the medical treatment upon which the case was based.
2 See §9.30.
§9.10 Basic Training and Strategy
In a purely allegorical sense, I often speak of
physically attacking the enemy litigants and joyfully
pummeling and dismembering them. But, in truth, the
only real physical combat that I have ever observed
occurred during settlement conferences, at times when
I was too young and too dumb to make certain that the
opposing parties stayed in separate rooms while we
lawyers conversed.
The physical examination, however, unlike any
other discovery or litigation device, provides that rare
opportunity for you to poke holes in the opposing party
himself, not just his case. It is an intrusive and insulting
process, to be sure. Moreover, the typical patient does
not enjoy a physical examination designed for his own
benefit and well-being, much less one contrived to assist
an enemy litigant. It has often been the case that the
mere threat of a physical examination would put an end
to litigation involving frivolous or fake injuries.
As you venture further into this chapter, you
are certain to notice a few contrasting features that
will distinguish the examination from other discovery
devices. First, scheduling the examination normally
requires something more than mere notice. While it
is true that in many instances, such as those involving
personal injury plaintiffs, the defendant’s right to an
examination is almost a “given,” even in such cases,
a court order may be required as a matter of course.
Secondly, the physical or mental condition had
better be a “key” issue in the case or invasion of priva-
cy shields may spring up. Rest assured that where an
examination is not facially necessary to resolve some
material issue in the dispute, the court may be quick
to grant a protective order.
Thirdly, the strict “good cause shown” standard,
long since dropped from other discovery devices,
still applies to physical and mental examinations. So
before going off half-loaded, keep in mind that this
weapon is definitely not a “full automatic.”1
Throughout the chapter, you may also notice that
there are some relevant “dual” classification schemes.
One concerns a common reference to both “physical”
and “mental” examinations. Another involves the
“federal and state” distinctions, which are nothing
new at this juncture. But there is a second classifi-
cation or division, which is of unique concern to this
particular weapon. In particular, there are two sets of
rule provisions; the first pertains to the scheduling and
conduct of the examination; the second involves the
medical reports prepared (or failed to be prepared) by
the examining physician, following the examination.
Both sets of rules are important; each applies to a
different party. Rule 35 of the Federal Rules of Civil
Procedure, our model rule for this chapter, and one
followed by most states, neatly divides the two issues
into Rules 35(a), titled “Order for Examination” and
35(b) titled “Report of Examiner.”2
§9.20 Constructing and Timing
Your Attack
The dual nature if this particular device, as
discussed immediately above, suggests that there are
two separate and, indeed opposing audiences—those
seeking to order and conduct the examination and
those seeking the reports of the examining physicians.
Because of the personal and often intrusive nature of
the process, the granting of an order requiring a person
to appear for either a mental or physical examina-

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