Requests for physical and mental examinations

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 243-254

9-239

request examination task 47

TASK 47

Request Examination

I. WHAT AND WHY

A. In appropriate cases, you may want another party,

or person under a party’s control or custody, to

submit to a mental or physical examination by a

suitably licensed or certified examiner to assess

any testimony or reports regarding the party’s con-

dition. For example, request an exam when a party:

1. Claims physical or mental injuries caused by

your client. See Schlagenhauf v. Holder, 379

U.S. 104 (1964);Gavin v. Hilton Worldwide,

Inc., 291 F.R.D. 161 (N.D. Cal. 2013) (IME

warranted where plaintiff alleged claims for

failure to accommodate chronic depression

and intentional infliction of emotional distress

and asserted that employer’s conduct caused

ongoing emotional distress, suicide attempt,

and hospitalization); Ornelas v. Southern Tire

Mart, LLC, 292 F.R.D. 388 (S.D. Tex 2013)

(plaintiff’s physical injury assertions entitled

defendant to examinations by orthopedic

surgeon and vocational rehabilitation expert;

plaintiff’s physical capabilities, employability,

and extent of his injures squarely in contro-

versy); Nguyen v. Qualcomm Inc., 119 BNA

Fed. Empl. Cases 76 (S.D. Cal. 2013) (where

plaintiff claimed ongoing psychological injury,

IME warranted to ascertain preexisting causes

of plaintiff’s injuries and assess nature and

amount of claimed damages); Diaz v, Con-

Way Truckload, Inc., 279 F.R.D. 412 (S.D.

Tex. 2012) (IME by defense experts war-

ranted where plaintiff alleged ongoing brain

and eye injuries); York v. Union Pacific R.

Co., 74 Fed. R. Serv. 3d 1419 (D. Neb. 2009)

(where plaintiff alleged knee and hip injuries

arising from employer’s failure to provide

proper ergonomics, defendant granted leave

for Rule 35 examination by orthopedic physi-

cian); Benham v. Rice, 238 F.R.D. 15 (D.D.C.

2006) (court acknowledged majority rule that

“garden variety” emotional distress claims

do not create grounds for IME, but held that

employee seeking compensation for emotional

distress arising out of employer’s actions had

placed mental state in controversy); compare

Ornelas v. Southern Tire Mart, LLC, 292

F.R.D. 388 (S.D. Tex 2013) (ordinary emo-

tional distress claim does not place plaintiff’s

mental state in controversy, defendant not

entitled to IME); Bowen v. Parking Authority

of the City of Camden, 214 F.R.D. 188 (D.N.J.

2003) (same); Ricks v. Abbott Laboratories,

198 F.R.D. 647 (D. Md. 2001) (mental condi-

tion not in controversy when plaintiff included

emotional distress as element of damages but

did not allege cause of action for infliction of

emotional distress and did not intend to intro-

duce expert psychiatric evidence at trial; mere

relevancy of plaintiff’s mental state did not

meet Rule 35(a) standard).

2. Suffers from mental or physical problems that

may affect his or her testimony.

3. Asserts a defense based on a mental or physi-

cal impairment.

B. Parties may stipulate to a physical or mental

examination. FRCP 35(b)(6). However, you may

file a motion to order a party to submit to an

examination when the party will not stipulate.

FRCP 35(a). In Newman v. San Joaquin Delta

Community College Dist., 84 Fed. Rules Serv. 3d

1314 (E.D. Cal. 2011), the parties stipulated to

CHAPTER 9: REQUESTS FOR PHYSICAL AND

MENTAL EXAMINATIONS

TASKS

Task 47 Request Examination

Task 48 Oppose Examination Request

Task 49 Prepare Client for Examination

Task 50 Request Examination Reports

Task 51 Produce Examination Reports

FORMS

Form 17 Notice of Physical of Mental Examination