Physical and Mental Examinations Under Rule 35: Procedural Challenges and Privacy Issues

When a plaintiff claims physical or mental injury, Federal Rule 35 (and state counterparts) permits defense counsel "for cause" to require that plaintiff submit to a physical or mental exam. Because such examinations are allowed under the Federal Rules, plaintiffs have little to gain by opposing such examinations if they fall within the parameters of the rule. Rather, the wiser course is to focus on making sure that the examinations are reasonable, as non-invasive as possible, and as fair as they can be.

Counsel must set limits on the scope of examinations and clearly define the issues to which they relate. Thorough knowledge of the practitioner who will conduct the examination and of the types of tests to be done is critical. Counsel should also have ready and know when to file a motion for a protective order.

Listen as this stellar panel discusses how to prepare for and defend a defense request under Rule 35 or its typical state analog. The panel will cover such topics as preparing the client from the beginning of the case for such exams, the role of document requests, preparing for cross-examination of the “independent” professional, bias, the use of audio or video examinations, timing and other logistics of the exam, issues regarding the discovery deposition of the examiner, and dealing with the examiner and the examination at trial.