Federal Defense Medical Examinations Governed By Federal Rules

Federal Defense Medical Examinations

Brien Roche

Federal Rule 35 allows for examinations in certain instances. The mental or physical condition of the party must be in controversy. In addition, the motion must demonstrate good cause. Further, the motion must specify the time, place, manner, conditions, and scope of the examination as well as the person to be performing it.

In an early decision from 1964, the U.S. Supreme Court refused to grant a mandamus when the record failed to show that the mental or physical condition of the party was in controversy or that there was good cause to allow the physical or mental examination. Schlagenhauf v. Holder, 85 S.Ct. 234 (1964)

Terms of Examination

In Zabkowicz v. West Bend Co., 585 F. Supp. 635 (E.D.Wis. 1984), the court ordered certain terms for an examination. The plaintiff had brought a civil rights action. There was an allegation of extreme emotional distress. The defendant requested a psychiatric examination. The court ruled that the plaintiff would be entitled to have a third party, including counsel, or a recording device present during the examination.

In DeCrescenzo v. Maersk Container Service Co., 741 F.2d 17 (2nd Cir. 1984), the Court of Appeals overruled a dismissal based upon the plaintiff’s refusal to allow a defense physician to examine his foot. The court ruled that dismissal was too harsh a sanction. In addition, the plaintiff claimed that his foot was too painful to be touched by an examining physician. The court vacated the dismissal and remanded the case for further review by the trial court with the understanding that the examination that had been conducted was probably adequate.

In Gensbauer v. May Department Stores, 184 F.R.D. 552 (E.D.Pa. 1999), on plaintiff’s Motion for Protective Order, the court allowed plaintiff’s counsel to be present at the examination. In that case, the court looked to the state rules on who might be present in the absence of any federal dictate on the issue. In addition in Kuslick v. Roszczewski, 2012 W.L. 899355 (E.D.Mich. 2012), the court ordered an examination and found that plaintiff’s request that the examination be video recorded was not unreasonable.

Second Examinations

Sometimes an issue will arise where the defense requests a second examination. In Jackson v. Entergy Operations, 1998 W.L. 28272 (E.D.La. 1998), the defendant requested both psychological testing and psychiatric examination. Courts have allowed such in instances where more than one specialist must be consulted to determine if there are multiple injuries with different sources. Here such an examination was allowed.

In Moore v. Calavar Corp., 142 F.R.D. 134 (W.D.La. 1992), the defendant requested a second examination of the plaintiff. The court held that second examinations must be governed by several issues. First of all, whether or not there are distinct medical injuries calling for distinct medical specialties. Also, does the physician require the assistance of some other consultant? Was the first examination simply not adequate or complete? Finally has there been a substantial time lag between the initial examination and trial? In this case the court concluded that there was a lack of showing of good cause.

In a well-reasoned decision from the D.C. Superior Court on the plaintiff’s Motion for a Protective Order, the court authorized a court reporter to be present for the examination. Or in the alternative that the examination could be recorded by audio or video. Moore v. Washington Hospital Center, Civil Action 95-798 (Judge Kennedy).