Rule 35.Physical and mental examinations

Rule 35 comes into play when a party's physical or mental condition -- including something as specific as blood group -- is itself a disputed issue in the case, most often in personal injury litigation where the extent of an injury is contested. The court can order that party to submit to an examination by a suitably licensed or certified examiner, and the same authority extends to ordering an examination of someone in that party's custody or under its legal control, such as a minor child. An order like this does not issue automatically just because a party asks; the moving party has to show good cause, and every party along with the person to be examined has to receive notice before the court can act. Once the court is satisfied that good cause exists, the order has to spell out the time, place, manner, conditions, and scope of the examination, and identify who will perform it.

The rest of the rule governs the paper trail the examination produces. The party who moved for the exam has to hand over a copy of the examiner's written report to whoever requests it -- either the party who was examined or the party against whom the order was entered -- along with reports from any earlier examinations of the same condition, and the report has to detail the examiner's findings, diagnoses, conclusions, and test results. Once that first exchange happens, the moving party can turn around and request comparable reports covering earlier or later examinations of the same condition from the other side, though those need not be produced if that party shows it could not obtain them. Requesting and receiving the examiner's report, or deposing the examiner, comes with a real cost: doing either one waives any privilege the examined party might otherwise claim over testimony about every examination of that same condition, in that case or any other case involving the same controversy. If a party refuses to hand over a report it owes, the court can order production on just terms, and if the report never surfaces, the court can bar the examiner from testifying at trial. These reporting and waiver rules apply equally to examinations the parties arranged by agreement, unless their agreement says otherwise, and none of it forecloses getting an examiner's report or deposing the examiner through some other discovery rule.