Requests for physical and mental examinations

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 249-260

9-1

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

condition. 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); Flores-Febus v. MVM,

Inc., 299 F.R.D. 338 (D.P.R. 2014) (IME

warranted in employment discrimination case

where plaintiff alleged ongoing emotional

injury including depression, anxiety, and

insomnia); 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

controversy); 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 warranted

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 physician);

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 emotional 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 condition 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 introduce 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.

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