Rule 4010.Physical and Mental Examination of Persons.

Official Note: The examination may include blood or genetic testing.

Official Note: Ordinarily, the facts giving rise to liability are not germane to an examina- tion and the information which the examiner seeks should be limited to facts of liability germane to the issue of damages.

Explanatory Note Prior Rule 4010 has been substantially revised to conform closely to Fed. R.Civ.P. 35. It makes the following changes in the prior practice: (1) The Federal Rule covers a party and also a person in the custody or legal control of a party. This expansion is incorporated in the amendment. (2) The amendment introduces a specific requirement of ‘‘good cause shown’’ and notice to all parties and to the person to be examined. Actually, this makes no change in present practice. Good cause and notice were implicit in the prior Rule, which required a showing that the physical or men- tal condition was in controversy in the action. Good cause and notice are intended to protect parties against undue invasion of their rights to privacy. (3) Subdivision (b)(1) gives the party against whom the order is issued the right to require the examining physician to give him a report of the results of all tests made and his diagnoses and con- clusions, including like reports of all earlier examinations of the same condition to which the exam- ining physician may have had access. This would include the results of X-rays, cardiograms or other tests. If such a report is requested and received, the recipient must reciprocate, on request, and deliver a copy of all prior or later examinations made by his physician. Sanctions are provided for refusal. This follows Fed. R.Civ.P. 35(b)(1). (4) Subdivision (b)(2) provides that if a report is requested and received under subdivision (b)(1) or if the deposition of the examining physician is taken, the party examined waives any privilege he may have concerning the testimony of anyone who may have examined him earlier or thereafter. This follows Fed. R.Civ.P. 35(b)(2). (5) Subdivision (b)(3) provides that examinations made by agreement of the parties may be sub- ject to production under the Rule and that discovery of the report of an examining physician or deposing him under other Rules is not precluded. This follows Fed. R.Civ.P. 35(b)(3) as amended in 1970. In practice, medical reports, as part of the special damages, are routinely submitted during settle- ment discussions, sometimes even before suit is commenced. There was little litigation over prior Rule 4010 and there should be relatively little under the amended Rule.