Requests for physical and mental examinations

AuthorWilliam M. Audet/Kimberly A. Fanady
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
condition. For example, request an exam when a
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.
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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