Requests for physical and mental examinations

AuthorWilliam M. Audet/Kimberly A. Fanady
request examination task 47
Request Examination
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
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
Form 17 Notice of Physical of Mental Examination

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