Physical and Mental Examinations

• Author: Ashley S. Lipson
• Pages: 673-696

Once in a while civil litigators get an

opportunity to poke and stab

their adversaries.

Chapter 9

Physical and Mental

Examinations

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-