Rule 35 PHYSICAL AND MENTAL EXAMINATION OF PERSONS.

JurisdictionColorado
Rule 35. Physical and Mental Examination of Persons.

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his or her custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(b) Report of Examiner.

(1) If requested by the party against whom an order is made under section (a) of this Rule or the person examined, the party causing the examination to be made shall deliver to said other party a copy of a detailed written report of the examiner setting out his or her findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he or she is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner's testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the person examined waives any privilege he or she may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the person in respect of the same mental or physical condition.

(3) This section (b) applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This section (b) does not preclude discovery of a report of an examiner in accordance with the provisions of any other Rule.

Source: Amended October 8, 1992, effective January 1, 1993.

Cross references: For protective orders concerning discovery, see C.R.C.P. 26(c); for sanctions for failure to comply with order, see C.R.C.P. 37(b).

ANNOTATION

I. General Consideration.

II. Order.

III. Report.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Depositions and Discovery, Rules 26 to 37", see 28 Dicta 375 (1951). For article, "Depositions and Discovery: Rules 26-37", see 23 Rocky Mt. L. Rev. 562 (1951). For article, "Plaintiff's Advantageous Use of Discovery, Pre-Trial and Summary Judgment", see 40 Den. L. Ctr. J. 192 (1963).

C. R.C.P. 26 to 37 must be construed together along with the requirement that the plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plaintiff's right to discovery of defendant's financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Determination of motion lies within the sound discretion of the trial court. In a dependency and neglect proceeding, denying intervenor's motion for mental examination of the mother when evaluation had been updated six months before the hearing was not an abuse of discretion. People ex rel. A.W.R., 17 P.3d 192 (Colo. App. 2000).

There is no absolute quasi-judicial immunity...

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