RULE 35. PHYSICAL AND MENTAL EXAMINATIONS
(a) Order for an Examination.
If the mental or physical condition (including the blood group) of a party, or 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 the party's 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 must specify the time, place,
manner, conditions, and scope of the examination and the person or persons by whom it is
to be made.
(1) In General. The court where the action is pending may order a party whose mental or physical condition including blood group is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under it legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
(b) Examiner's Report
(1) If requested by the party against whom an order is made under Rule 35(a) or
examined, the party causing the examination to be made shall deliver to the requestor a copy
of a detailed written report of the examiner setting out the examiner's 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 is
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 inability 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.
(1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against who the examination order was issued or by the person examined.
(2) Contents. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.
(3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request and is entitled to receive from the party against who the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.
(2) By requesting and obtaining a report of the examination so ordered or by taking
deposition of the examiner, the party examined waives any privilege the party 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 him in respect of the same mental
or physical condition.
(4) Waiver of Privilege. By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have in that action or any other action involving the same controversy concerning testimony about all examinations of the same condition.
(5) Failure to Deliver a Report. The court on motion may order on just terms that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.
(3) This subdivision applies to examinations made by agreement of the parties,
agreement expressly provides otherwise. This subdivision does not preclude discovery of a
report of an examiner or the taking of a deposition of the examiner in accordance with the
provisions of any other rule.
(6) This subdivision (b) applies also to an examination made by the parties' stipulation, unless the stipulation states otherwise. This subdivision does not preclude obtaining an examiner's report or deposing an examiner under other rules.
Rule 35 was amended, effective March 1, 1990; March 1, 1994; _______________.
This rule is
identical to Rule derived from Fed.R.Civ.P.
35 , FRCivP, except for style
Rule 35 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 35 was amended, effective March 1, 1994, to track the 1991 federal amendment, by authorizing the court to require a physical or mental examination conducted by any person who is suitably licensed or certified such as a dentist, occupational therapist or clinical psychologist. The requirement that the examiner be "suitably licensed or certified" authorizes the court to assess the credentials of the examiner to assure that no person is subject to a court ordered examination by an examiner whose testimony would be of such limited value that it would be unjust to require the person to undergo the invasion of privacy associated with the examination.
Rule 35 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee Minutes of ____________________; October
1992, page 10; April 20, 1989, page 2; December 3, 1987, page 11; November 29-30, 1979,
Rule Fed.R.Civ.P. 35 , FRCivP.
Rules N.D.R.Civ.P. 26 (General Provisions
Governing Discovery), and
N.D.R.Civ.P. 29 (Stipulations Regarding Discovery Procedure) ,
N.D.R.Ev. 503 (Physician and Psychotherapist-Patient Privilege) and N.D.R.Ev.
Appointed Experts ), N.D.R.Ev.