Physical and Mental Examinations
From LegalLanding
(Created page with 'As allowed by FRCP Rule 35, this is the only discovery tool for which stipulation or advance court approval is necessary. When the party’s condition is “in controver…') |
|||
| Line 5: | Line 5: | ||
Some people think [[deposition]]s are the most expensive discovery tool because of the time involved, but a Rule 35 exam requires a motion (which will probably be fought) by the party seeking discovery. The party must show that the condition is in controversy, and must show good cause, and must use facts to show these things. Controversy can be established if the condition is made an issue in the pleadings, such as in ''Davis v. Ross'' (1985). Good cause can be shown by arguing that the discovery cannot be found in any other way. | Some people think [[deposition]]s are the most expensive discovery tool because of the time involved, but a Rule 35 exam requires a motion (which will probably be fought) by the party seeking discovery. The party must show that the condition is in controversy, and must show good cause, and must use facts to show these things. Controversy can be established if the condition is made an issue in the pleadings, such as in ''Davis v. Ross'' (1985). Good cause can be shown by arguing that the discovery cannot be found in any other way. | ||
| - | A party can also use a [[subpoena | + | A party can also use a [[subpoena duces tecum]] or deposition to get the information. If a [[plaintiff]] in a civil case alleges physical/mental damages, then the doctor-patient privilege is waived, but courts are not as eager to find a waiver where psychological therapy is concerned. |
[[Category:Legal Terms]] | [[Category:Legal Terms]] | ||
[[Category:Federal Rules of Civil Procedure]] | [[Category:Federal Rules of Civil Procedure]] | ||
Latest revision as of 20:46, 4 November 2010
As allowed by FRCP Rule 35, this is the only discovery tool for which stipulation or advance court approval is necessary. When the party’s condition is “in controversy,” court may order, but “only on motion for good cause shown.” This requires more than conclusory allegations or mere relevance to the case – there must be an affirmative showing that each condition is really and genuinely in controversy (Schlagenhauf v. Holder (1964)).
Counsel for the party being examined is normally not allowed to attend. Attending might make him a witness and thereby require his withdrawal as counsel.
Some people think depositions are the most expensive discovery tool because of the time involved, but a Rule 35 exam requires a motion (which will probably be fought) by the party seeking discovery. The party must show that the condition is in controversy, and must show good cause, and must use facts to show these things. Controversy can be established if the condition is made an issue in the pleadings, such as in Davis v. Ross (1985). Good cause can be shown by arguing that the discovery cannot be found in any other way.
A party can also use a subpoena duces tecum or deposition to get the information. If a plaintiff in a civil case alleges physical/mental damages, then the doctor-patient privilege is waived, but courts are not as eager to find a waiver where psychological therapy is concerned.