Chapter 9: Requests For

Federal Rule 35 and similar state rules allow physical, mental, or related examinations of a party who places bodily, health, or emotional condition in controversy — an unusual, invasive, but essential discovery device in tort, employment, product-liability, and parentage cases.

Chapter 9

Mental Examinations

■ ■ ■

Few things are harder to put up with than the annoyance of a good example.

Mark Twain

§ 9.1 Introduction

A distinct form of discovery involves the examination of parties who place their physical or mental status at issue in a case. Some lawyers use this discovery device routinely, while other lawyers never have a need for it because the type of cases they litigate do not involve these issues. These examinations are known as independent medical examinations (IME), adverse exams, or Rule 35 examinations.

Federal Rule 35 and similar state rules allow for the physical, mental, or related examinations of a party under reasonable and restrictive conditions. The party to be examined must place the party’s bodily, health, or emotional condition in controversy, and an examination is authorized by a standard stipulated agreement or by a court order. These examinations are readily available in cases involving: tort claims, plaintiffs suffering personal injuries, accidents causing physical damages, product liability injury claims, employment actions asserting psychological distress, lawsuits entailing wellbeing issues, multi-district prescription drug cases, disputes over parentage or ancestry, and other similar cases.

From the perspective of the party who is to be examined, this process is relatively unusual and invasive. The procedure permits injured parties to be involuntarily examined by a doctor not of their choosing. This can be quite an invasion of privacy. But, a plaintiff who pursues damages or other relief claiming that a defendant caused specific injuries must undergo an adverse examination. The process ensures that the claims and defenses are supported by medical, scientific, or other expert evidence.

§ 9.2 Physical Examination Procedures

In federal cases, before bringing a Rule 35 motion, a party must confer with the opposing party in an effort to seek an agreement regarding the examination. Rules 26 and 37 and local rules require a movant to accompany a motion with a written certification explaining these efforts. Many state courts have similar meet and confer rules. These procedures may be the same for arbitrations and administrative cases where such exams are required or permitted. Even in the absence of these procedural rules, it’s wise for attorneys to discuss any Rule 35 disputes in an effort to mutually agree to an examination without the need for court intervention.

In practice, most examinations occur as a result of an agreement between attorneys. A sample common stipulation is:

[Caption]

[Plaintiff] and [defendant] stipulate and agree, pursuant to Rules 29 and 35 of the Federal Rules of Civil Procedure, as follows:

  1. [Plaintiff/Defendant] will [appear/produce] [name of examinee] for [physical, mental, blood] examination at the request of [plaintiff/defendant] on ___, 20, at [time] __.M.

  2. The examination will be conducted at [location].

  3. The examination will be conducted by [name of expert].

  4. The examination shall include [describe type and scope of examination and tests].

  5. The examinee agrees to answer all proper questions submitted.

  6. The examinee shall be accompanied during the course of examination by [names of any attendees/observers].

  7. Good cause exists for this examination.

  8. The costs of this examination will be borne by [plaintiff/defendant].

  9. The examinee requests a copy of the examination report and [plaintiff/defendant] will supply the report and all other reports of the same condition without any further demand when the report(s) becomes available.

  10. A court may issue an order upon the filing of this stipulation without any notice or hearing.

  11. The order shall take effect upon filing and receipt of the order upon the attorney for examinee.

[Signatures]

The courts are eager to give effect to stipulations and ratify their use with respect to any reasonable examination or for testing such as blood or DNA work.^[1]^ Otherwise, a court order is needed after a showing of good cause for an examination or test.

Rule 35 applies broadly to any case in which there is controversy about the physical, mental, or other condition of the person to be examined. In addition to personal injury and tort actions, other types of disputes that may involve Rule 35 examinations include cases involving inheritance, citizenship, sexual harassment, discrimination, incompetence, and undue influence.^[2]^ These cases may involve issues relating to the health and wellbeing of a party. And while the condition of a dead body may be ascertained through a Rule 34 procedure for the production of tangibles,^[3]^ conceivably Rule 35 also stands as an additional authority allowing a medical examination of a dead person. Now there would be a specialty area of legal practice.

The rule creates three factors to be met in obtaining an adverse examination: the relevant condition of an examinee must be in controversy and good cause must support the examination. The trial court has broad discretion in considering and acting upon a Rule 35 request.^[4]^

Is a particular party subject to examination? Is the party’s physical or mental condition in controversy? Can a significant showing of good cause be made in support of the motion to compel examination? These are all questions that the moving party must answer affirmatively in order to prevail. The United States Supreme Court has stated that the rule prohibits “sweeping examinations . . . automatically ordered merely because the person has been involved in an accident . . . and a general charge of negligence is lodged."^[5]^ The Court does not sanction the “routine” ordering of such examinations but instead requires the trial judge to apply the rule “discriminately.”

Rule 35 case law and practice has evolved over the decades so that lawyers know the issues the Rule covers and what is or what is not permissible. Accordingly, counsel usually stipulate to a reasonable examination without the need for court action. If the Rule’s criteria have been met by allegations of bodily, psychological, or related medical injuries, the injured party will be adversely examined. The claims may involve minor or serious or temporary or permanent injuries. For example, personal injury actions involving an accident and legitimate allegations of specific negligence routinely prompt one or more appropriate Rule 35 examinations.

§ 9.2.1 The Examinee

The person to be examined is the individual who has made an issue of a covered condition. The rule applies to all parties, defendants as well as plaintiffs, and extends examinations to include agents as well as persons under control of the party. An agent of a party is an agent of the party—even a cursory review of agency law will provide that definition. A person under the legal control of the party is less definitive. Nonetheless, some situations are clear. The Federal Advisory Committee states that the rule settles “beyond doubt that a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examination."^[6]^ The rule clearly covers a required DNA or blood examination of minors in cases involving their paternity.^[7]^ The rule may not provide a spouse who seeks damages for injuries to the other spouse with “control” over that spouse for purposes of producing an appearance at an examination.^[8]^

Control also has further limits. The Federal Advisory Committee Notes state that “an order to ‘produce’ the third person imposes only an obligation to use good faith efforts to produce the person."^[9]^ If a person refuses to be examined, that individual may be able to avoid the process, but there may be consequences. A party pursuing relief who refuses to be examined will not be able to recover, and the claim or case will be dismissed.

§ 9.2.2 The Controversy

The controversy at issue involves the physical, mental, or related condition of a party who alleges injuries. As explained, personal injury cases commonly include some condition in controversy. Other types of cases may raise the question of whether the plaintiff or defendant voluntarily has placed a covered condition in issue.^[10]^

One party may attempt to place an opponent’s condition in controversy. A defense based on pre-existing injuries will prompt an examination relating to this issue.^[11]^ A more pronounced showing of actual “controversy” will be required of a party who asserts the dispute concerns the condition of another. Mere conclusory allegations that a condition is in controversy will not support a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) order.

The party seeking an examination must make a showing beyond a mere allegation that the evidence itself places the condition in dispute. For example, the plaintiff in a personal injury case clearly placed her physical condition in controversy by asserting physical injuries to her head and body in the complaint. Defendant argued that plaintiff’s mental condition was also in controversy, contending that the real question was whether plaintiff’s physical condition was affected by her mental condition. This argument was supported by an expert’s adverse medical examination report, which found plaintiff to be minimally injured and predicted that plaintiff’s residual symptoms would disappear when the litigation settled.^[12]^ The court, using its discretion, determined there was a need for a mental exam as well.

In an illustrative and historic case, the plaintiff in a negligence action, which involved the collision of a bus with a tractor-trailer, sought a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) examination of the defendant and the bus driver.^[13]^ The plaintiff contended that the bus driver was “not mentally or physically capable” of driving the bus and sought examinations in internal medicine, ophthalmology, neurology, and psychiatry. The plaintiff supported its motion with affidavits alleging that the rear lights of the trailer were visible for one-half mile and that the driver had been involved in a previous accident. The United States Supreme Court found sufficient controversy for the ophthalmological examination on the basis of one affidavit, but not for the other three examinations.^[14]^ Two Justices dissented, noting that the record supported a finding that the physical and mental condition of the driver were in controversy and the three other examinations would produce highly relevant evidence. The dissenters remarked in a practical and telling observation that such an accident prompts a reasonable person to inquire: “What is the matter with that driver? Is he blind or crazy?(sic)"^[15]^

A creative attorney may be able to formulate a persuasive argument that physical, mental, blood, or DNA condition is in controversy in a type of lawsuit not ordinarily involving Rule 35 examinations. A defamation action involving alleged untrue remarks concerning the plaintiff’s physical, mental, or other condition may justify a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) examination to allow the defendant to establish the defense of truth. The “in controversy” requirement may also be met by a dispute over the right or competence of a party to maintain an action or defense.

A court has authorized a mental examination to determine if the plaintiff was capable of understanding the nature and effect of the lawsuit involved.^[16]^ The court issued the order on the authority of both Rule 35 and Rule 17(c), the rule providing for prosecution of actions by representatives of incompetent persons. The court stated that this type of examination would not be permitted as a routine practice and issued the order subject to certain protective provisions.^[17]^ This precedent is not uniform, however. Another court denied a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion based on similar allegations of controversy.^[18]^

§ 9.2.3 The Good Cause

Rule 35 includes the requirement of “good cause” for compulsory examinations. The standard for determining the question of good cause goes beyond a mere formality, requiring: (1) that the moving party establish that the prospective information meets the relevancy standard of Rule 26 and (2) that the moving party needs such information. Courts impose varying burdens upon parties pursuing Rule 35 orders, but they routinely grant such motions in personal injury actions, where physical or mental condition is usually in controversy and “good cause” is self-evident.

Courts also grant Rule 35 requests in cases not ordinarily involving questions of health, emotional, or related conditions, but they impose a higher burden on the party wanting the examination if the proposed examination will be either painful or of dubious probative value. One court declined to order a bone-scan examination because of its questionable value and the potential discomfort to the party to be examined until plaintiff was able to obtain advice on the risks.^[19]^ Although higher standards may be imposed in such cases, courts will order a painful examination or possibly dangerous procedure if appropriate.^[20]^

The determination of good cause involves a balancing approach: weighing the pain, danger, or intrusiveness of the examination against the need for, or usefulness of, the information to be gained. If a party complains about the difficulty and pain involved in an examination, that party could avoid examination by stipulating that no favorable evidence would be introduced at trial based upon that type of examination.^[21]^

Employment discrimination and sexual harassment cases may involve claims of physical injuries and mental distress suffered by the plaintiff, and these claims may permit a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) examination. The defense lawyer may want a broad mental examination, but plaintiff’s lawyer ought to be successful in limiting the examination to the claims and injuries specifically alleged. A defendant will ordinarily need to provide sufficient details regarding the scope and nature of the examination and its procedures to warrant its being granted.^[22]^

Judges prefer to avoid the indiscriminate use of Rule 35 examinations and are open to considering rational and deliberative factors before granting an order for one. An attorney who opposes such an examination may be successful in restricting the scope of an inevitable court order permitting it. As modern medical and testing procedures become more invasive, and hopefully less painful, judges prefer the lawyers to work out reasonable compromises in conducting necessary examinations.

§ 9.3 Number of Examinations

How many examinations must a person undergo under the authority of Rule 35? The rule does not specifically limit the number of examinations and leaves to the lawyers and the courts the resolution of the question within the framework of the “in controversy” and “good cause” analysis. Multiple examinations arise in two contexts: (1) a request for a later examination by the same expert conducting an initial examination or by an expert of the same specialty; and (2) a request to have a person examined by an expert in another specialty.

Rule 35 neither provides for nor prohibits more than one adverse examination. Lawyers and judges routinely allow the parties to conduct examinations as will approximately “balance” the positions of the parties and are even inclined to balance the number and type of examinations. If a plaintiff has been treated or examined by three doctors, all of whom may testify, the defendant most probably will be able to establish good cause to conduct three comparable adverse examinations. If the plaintiff has been treated or examined by a number of specialists, the defendant will likely be able to have the plaintiff examined by doctors in those specialties.

Some courts employ a list of factors in applying a balancing approach to the problem of multiple, subsequent examinations. Four factors to be considered before permitting a second examination include:

  1. The lapse of time since the initial examination;

  2. Any amendments to the pleadings or new information raising other contentions;

  3. Any lack of cooperation during a first examination; and

  4. An incomplete report of the first examination, or an inability of the examiner to testify.^[23]^

Courts prefer to keep the number of examinations to a minimum.^[24]^ Partial examinations by more than one examiner are usually held equivalent to a complete examination by one examiner and are allowed. Multiple examinations may be appropriate. A plaintiff sued for personal injuries, claiming whiplash injuries to the spine and extensive aggravation of a pre-existing heart disability. The court required him to submit to two separate examinations, one by an orthopedic specialist and one by a heart specialist.^[25]^ The number and specialties of physicians treating the examinee may also provide guidance to the court to determine what is fair examination by an adversary. If a change in condition occurs, leaving a party with outdated information, good cause may be found for an additional examination.^[26]^

Multiple medical examinations by the same physician or the same type of specialist require establishing some change of circumstance following the previous examination. The party seeking an additional examination must make a strong showing of the need for it. A second physical examination of a plaintiff was permitted when the defendant could not obtain the trial testimony of the physician conducting the first examination because the doctor resided outside the jurisdiction of the court and refused to appear voluntarily.^[27]^ The passage of two years since plaintiff had been required to undergo a physical examination in an action between the same parties was an adequate basis for requiring a second examination.^[28]^

Most courts permit a second examination shortly before trial, or even during trial, if the case has not reached trial for some time following the initial examination. Experienced judges realize that medical experts frequently are reluctant to testify to the present or future condition unless they have examined the patient recently. Consequently, second examinations generally are permitted, unless testimony concerning the present condition is of little value or the condition at the time of the initial examination has relevance to the issues in the case.

A corollary of limiting the number of examinations is limiting the length of a single examination. Courts are usually disinclined to impose limitations that unfairly interfere with the professional needs or judgment of the examiner. A court may only be inclined to impose reasonable restrictions if abuse or oppression may result from an unlimited examination. Similarly, courts will not readily impose other restrictions, such as frequent breaks or the advance disclosure of the questions to be asked.^[29]^

§ 9.4 Examination Attendees

Obviously, the examinee (the party) and the examiner (the expert) will be present. And lawyers may want to be present. The attorney representing the party to be examined, a legal assistant, or the party’s physician or other expert may prefer to be present. A dispute sometimes arises concerning who will be present during the examination. These disputes need to be resolved by the lawyers, or a judge may need to issue a ruling.

The attendance of an attorney or another person may be denied if the presence will delay or create problems during the examination.^[30]^ Some courts view the expert examiner in a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) examination as an “officer of the court” and the exam as not an adversarial process, so there is no need for an attorney.^[31]^ Judges decide these issues on a case-by-case basis.

Courts may impose reasonable limits on examinations. A judge may authorize the presence of an attorney during only a portion of the examination, for example while a doctor takes the case history of the examinee. The party to be examined may obtain protective relief under Rule 26(c) to prevent the examination from becoming a deposition without benefit of counsel. For example, the order for an examination may specifically limit the scope of the examination, may prohibit the use of any non-medical questions, and may even prohibit the introduction of any evidence relating to statements made by the examinee during the exam.^[32]^

Courts have been willing to allow the party to be medically examined to have a physician present during the examination but a state statute mandating this prerogative was struck down by one state supreme court for violating separation of powers.^[33]^ Although some courts have stated that a party has a right to have a doctor present,^[34]^ most courts consider this question a matter of discretion.^[35]^ A party seeking the presence of a physician may need to establish that prejudice or embarrassment would result from the absence of the “friendly” physician.^[36]^ Courts that deny such requests usually approve a consultation between the examining doctor and the patient’s doctor.^[37]^

§ 9.5 Place of Examination

Where does the examiner examine the examinee? Generally, the location is where the case is venued, which is typically where the plaintiff lives. But, the location of the examination may be contested.^[38]^ The party may live in one place, the examiner may work in another, and the attorneys may practice in still another district. The attorneys by agreement or the court by order can determine the situs of examinations for the case or the allocation of travel expenses between the parties. An additional consideration is the availability of the examining expert to provide testimony at trial.

Courts routinely require that a party appear for an examination at the place where the action is pending. The courts require a non-resident plaintiff to appear in that place for the Rule 35 examination on the grounds that the plaintiff selected the forum and cannot complain about having to appear there.^[39]^ A plaintiff may show that attending a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) exam in such a location will be either financially burdensome or medically dangerous, and may convince the court to order the examination held at the plaintiff’s resident city.^[40]^

A plaintiff could attend both a deposition and an examination on the same or consecutive days in the district where the plaintiff commenced the action, minimizing the burden on all concerned. The use of a video recorded deposition provides more flexibility for determining the location of an adverse examination, particularly when a choice of location pivots on the availability of the examiner to provide testimony during the trial.^[41]^

§ 9.6 Drafting the Documents

The motion to obtain an order for a physical, mental, or other examination must be in writing. The notice of motion and motion must be served on all parties to the action, and also on the person to be examined if a non-party. State or local rules may specify that service of the documents must be made at least a fixed period of time before the hearing.

Rule 35(a) specifically requires the order for examination to state the:

  1. Time and date,

  2. Location of the examination,

  3. Manner in which the examination will be conducted,

  4. Conditions restricting or relating to the procedures,

  5. Scope of the examination,

  6. Person(s) to conduct or be present during the examination,

  7. Expert’s golf, or disk golf, handicap.

The moving party will undoubtedly desire to provide the court with this detailed information in the form of a proposed order served and filed with the notice and motion. Opposing counsel may file an alternative proposed order, particularly when the attorney does not contest the examination itself, but only some procedural facets. Proposed orders buttress arguments made during the hearing and provide the judge with reasonable alternatives. Proposed orders can also prevent an examination from being scheduled in the kitchen, by Professor Plum, with a wrench.

An evidentiary hearing rarely is necessary, but the moving party frequently supports the motion for an examination with evidentiary support in the form of an affidavit(s), which is usually required. Good cause for an examination cannot be established by mere arguments, cajoling, or crying; rather it is based on the facts of the individual case and on the nature of the examination sought.

Pleadings alone may be sufficient to show good cause in a personal injury lawsuit, but in some cases an affidavit or declaration of counsel or a person with relevant information is necessary to support the need for the examination. An affidavit by the examining expert may also be necessary involving an examination that could be intrusive, painful, controversial, or dangerous. Such an affidavit can explain: the nature of the procedures to be ordered; the need for them; why less intrusive, painful, or dangerous tests are not satisfactory; and any other information which might assist the judge in making a decision. It may even be advisable to supply an affidavit from an expert who is not going to administer the test to establish that the tests are reasonable and required. This independent declaration may persuade a judge in a close case that the tests sought are appropriate.

LLMs can help ensure that motions for physical or mental examinations comply with Rule 35, generating well-structured documents that include all required elements, such as time, location, scope, and conditions of the examination. GenAI can also assist in drafting affidavits or declarations that establish good cause, summarizing case facts and expert opinions to support the necessity of the examination. Additionally, LLM-backed tools can anticipate potential objections by analyzing case law and prior rulings, suggesting counterarguments or alternative proposed orders. When expert affidavits are needed, GenAI can draft language to explain why the requested tests are reasonable, ensuring that the motion is both legally sound and strategically persuasive.

§ 9.7 Selecting the Examiner

The most important thing to remember in selecting an examiner to conduct the examination is that, in addition to selecting an expert, that individual will also be a trial witness. And so, it is wise to select someone whose examination and testimony will be deemed credible and persuasive. For example, a defense attorney should avoid selecting a physician with a notorious reputation as a biased defense doctor. Testimony from such an expert, indicating a patient’s lost finger will soon grow back, may be music to the defense attorney’s ears, but an incredible aria to the jury. The shadow cast by testimony from a suspect expert may fall over the entire case, reducing the credibility of otherwise believable witnesses.

The second most important thing to remember is that the court, not the attorney, selects and appoints the examiner. Courts usually appoint the expert proposed by the moving party, but judges are quite willing to exercise their power to select someone qualified not chosen by counsel. This power will be exercised when counsel cannot agree on an individual to conduct the examination.^[42]^ Some judges honor strenuous objections by opposing counsel to the choice of an examiner and appoint another person to conduct the examination.^[43]^ Other judges refuse to excuse a party from an exam by a particular examining expert merely because of an alleged conflict between the party and that individual.^[44]^ This power of the court encourages counsel to select an examining expert whose credentials and professional qualifications are not subject to serious criticism and who is acceptable to the opponent.

The kind of examiner selected depends on the matter in controversy, the nature of the exam, and the availability of experts in the field. The typical Rule 35 expert comes in all varieties. For example, is a general practitioner rather than a specialist preferred? An internist, a podiatrist, or a surgeon? Dr. House? Dr. Gallo? Dr. Hawkins? This decision also turns on the type of examiner chosen by the opponent. An expert may need to be selected who matches the qualifications or specialties of the opposing examiner.^[45]^

§ 9.8 Preparing for the Examination

The lawyer requesting the examination and the expert performing the examination must prepare to have a thorough and proper exam completed. Both must be well versed in the relevant causation and damage issues of the case. A comprehensive understanding of these relevant matters ensures that the examiner will conduct all the tests needed as evidence to support defenses or claims at trial.

The expert must be educated on the legal relevance of anything the examination may reveal. The examiner must also be presented with the patient’s complete relevant history, every report, all records, and anything that relates to the condition of the person to be examined. This helps the expert prepare, and also ensures that the eventual report and testimony are not deficient because of incorrect or incomplete data.

Fee arrangements with the expert must be made in advance of the examination. A fee dispute might cause the report to be held up, create friction in the relationship with the expert, or cause unneeded trouble for both the expert and counsel. The fee ordinarily is an hourly rate or a flat fee for the exam and report. The examiner’s fee cannot be contingent on the outcome of the exam or the case. The Model Rules of Professional Conduct prohibit such an arrangement,^[46]^ and the professional’s credibility would be impaired at trial.

§ 9.9 Responding to a Request for an Exam

A reasonable option is not to oppose a request or a motion for an examination. When physical or mental conditions are in controversy, all parties will want to know the legitimacy and extent of the alleged injuries. Further, the court will usually order such an examination, so there is no reason to object, unless some proposed conditions are unacceptable.

The information from the exam is crucial to an evaluation of the causation and damage issues. Reasonable objections to an exam may be limited to the scope of the examination, its procedures, or the expert selected. A protective order under Rule 26(c) or a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) order can properly limit the examination. See § 5.11.

Parties may be protected based upon reasons discussed earlier in this Chapter, including an exam involving intrusive, dangerous, untried, bizarre, or painful procedures. An order may be sought allowing an attorney or another expert to be present during the examination. If the examiner selected by the moving party is opposed, a counter-motion for the appointment of a well-qualified and neutral expert may be submitted.

§ 9.10 The Examination and Report

As mentioned earlier, a typical examination involves the examinee and the examining expert. The examination itself is a proceeding in which lawyers, if allowed to attend at all, should play bit parts.^[47]^ The examiner conducts the examination,^[48]^ the party being examined responds to questions, and the lawyers do not actively participate. Counsel requesting the examination must avoid the appearance that the exam is essentially a partisan rather than a neutral exam, and the attorney representing the party being examined must not appear to be overly protective.

Examinations are typically not recorded. The presence of a camera or video recording equipment, especially in psychiatric or personal examinations, may affect the quality of the examination. A party who wants an exam recorded has the burden to overcome to be allowed to record an examination.^[49]^ Circumstances may support and permit a video record.

The examiner ordinarily prepares a report of the examination. This formal document should be a detailed statement of the expert’s exam, specific findings, and overall conclusions. A pre-examination conference between the attorney and the examiner may have established other types of information the report should contain. A copy of this report is ordinarily forwarded to the party examined and to any other parties. Rule 35(b) requires such an exchange if requested by the party examined.

The defendant will also want to discover other relevant reports previously completed on the party by other experts. An example of a discovery request follows:

Demand to Produce Medical Reports or Medical Report Authorizations

To: Plaintiff and Plaintiff’s attorney.

Pursuant to Rule 35 of the Federal Rules of Civil Procedure, Defendant requests that you produce within [number] days:

  1. Copies of all medical reports previously or subsequently made by any treating or examining medical expert; and

  2. Written authority signed by the plaintiff to permit the inspection of all hospital and other medical records concerning the plaintiff’s physical, mental, or blood condition.

Attorney for Defendant

The request triggers the exchange; the rule itself does not “automatically” require exchange. The demand by the examinee for a copy of the report usually entitles the party seeking the exam under Rule 35(b) to receive copies of all reports from any examination of the examinee for the same condition. An unsolicited sending of the report does not entitle the party obtaining the exam to previous records.^[50]^

The scope of this reciprocity appears limited to similar examinations of the same conditions. For example, if an ophthalmologist’s report were completed, the examinee would be required to exchange any ophthalmological reports, but not other types of examinations, like neurological or psychiatric reports. A court may order an expert to submit a report if no report has previously been made. An examiner who fails or refuses to make a full report may have testimony excluded if offered at the trial.^[51]^ The examination reports will be, more likely than not, offered as evidence at the trial, and should be prepared with that potential eventuality in mind.

§ 9.11 Waiver and Deposition

The party involved in a case concerning a physical, medical, mental, or health condition ordinarily has waived any privilege, based on state or federal law, that the party may have had in the pending action or any other involving the same controversy.^[52]^ The most common privilege is the doctor-patient privilege. [Rule 35(b)(4)](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) specifies that requesting and obtaining a report of an exam or the taking of the deposition of an examiner also acts as a privilege waiver. This rule anticipates that the party examined may decide to conduct a deposition of the examiner to obtain information about the exam and an explanation of the report.

Subdivision (b)(6) of the same rule makes it clear that Rule 35 does not preclude discovery of a report of an examining expert or the taking of a deposition of the expert in accord with the provisions of any other discovery rule. The operation of Rule 35 causes a party to lose privileges but also ensures that the same party has sufficient access to discovery devices to obtain information relevant to the privileged examination.^[53]^ At the same time, Rule 26 protects the examined party from unnecessary disclosures of privileged information.

§ 9.12 Effect of Exam and Report

A [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) adverse examination may be all it takes to settle a case. The opinion of the reporting expert may prompt the examined party to seriously consider negotiating a resolution. Some expert reports will be expected and not have a major influence on a settlement. A defense expert may issue a report highly favorable for the defendant and have little impact on the plaintiff, which will come as no surprise since the defense selected and retained that expert. A neutral and impartial expert report may be more of an incentive for an injured plaintiff to reconsider the extent of the damage claims. The results and timing of Rule 35 examinations commonly influence both plaintiff and defendant to seriously discuss a compromise outcome. The reality is that the vast majority of cases settle without the need for a trial, and a [Rule 35](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) procedure may be a vital factor in the settlement process.

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

  1. Prepare to discuss in class or online the conditions required by Federal Rule 35 for a physical or mental or other examination of a party.

  2. Prepare to discuss in class or online the procedures required by Federal Rule 35 for a physical or mental or other examination of a party.

  3. Prepare to discuss in class or online the required court documents and their contents required by Federal Rule 35 for an examination.

  4. Research the differences and similarities between Federal Rule 35 and the state court rules regarding examinations applicable in the state of your law school. Prepare to discuss in class or online these differences and similarities.

  5. Plan a motion for a physical examination of the opposing party in Burris v. Warner (Case K) by a physician of your choice:

(a) You represent the plaintiff.

(b) You represent the defendant.

  1. Draft a proposed order for a physical examination of the opposing party in Burris v. Warner (Case K).

(a) You represent the plaintiff.

(b) You represent the defendant.

  1. In Vasquez v. Hot Dog Enterprises (Case F), the plaintiff seeks damages for emotional distress.

(a) You represent the defendant. Prepare arguments in support of a motion for a mental examination of Juanita Vasquez.

(b) You represent the plaintiff. Prepare arguments to oppose the taking of this examination.

  1. In a case assigned by your professor:

(a) Plan a motion for a physical, mental, or other examination of an opposing party.

(b) Plan to meet and confer with a student classmate representing the party to be examined to discuss the details of the proposed exam.

(c) Draft a motion for a physical, mental, or other examination.

(d) Draft a proposed order for a physical, mental, or other exam.

  1. In Tymons v. Allgoods and Razzle (Case M), the plaintiffs retain you to represent them. They ask whether they can recover for the psychological and emotional distress they have suffered as a result of the actions by Allgoods, Razzle, and Jerzy. They also inquire into whether their witness protection status affects that potential recovery. Advise them on how they may proceed, and whether and how they would be subject to Rule 35 exams.

  2. Prepare to discuss in class or online the requirements, disclosures, and procedures relating to the examination conducted and the report issued by an expert performing an examination under Federal Rule 35.

  3. You have been asked by the Supreme Court Advisory Rules Committee in the state where your law school is located to submit proposed changes to the provisions and procedures of the state rules of civil procedure applicable to physical and mental and related examinations.

(a) Plan to discuss those proposed changes.

(b) Outline the revisions you would propose to make.

  1. See **[Ashby v. Mortimer, ](https://www.westlaw.com/Document/I48e5a8601f3c11e9a573b12ad1dad226/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I48e5a8601f3c11e9a573b12ad1dad226/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[329 F.R.D. 650 (D.Idaho 2019)](https://www.westlaw.com/Document/I48e5a8601f3c11e9a573b12ad1dad226/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I48e5a8601f3c11e9a573b12ad1dad226/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); [Herrera v. Lufkin Indus., ](https://www.westlaw.com/Document/I686defdfa18111dbb29ecfd71e79cb92/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I686defdfa18111dbb29ecfd71e79cb92/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[474 F.3d 675 (10th Cir. 2007)](https://www.westlaw.com/Document/I686defdfa18111dbb29ecfd71e79cb92/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I686defdfa18111dbb29ecfd71e79cb92/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). See also discussion in § 5.11. ↑
  2. See **[Caban ex rel. Crespo v. 600 E. 21st St. Co., ](https://www.westlaw.com/Document/Ie7d66ef453e011d9b17ee4cdc604a702/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie7d66ef453e011d9b17ee4cdc604a702/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[200 F.R.D. 176 (E.D.N.Y. 2001)](https://www.westlaw.com/Document/Ie7d66ef453e011d9b17ee4cdc604a702/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie7d66ef453e011d9b17ee4cdc604a702/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  3. See **[Wilstein v. San Tropai Condo. Master Ass’n, ](https://www.westlaw.com/Document/I3cf053dd569111d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3cf053dd569111d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[189 F.R.D. 371 (N.D. Ill. 2000)](https://www.westlaw.com/Document/I3cf053dd569111d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3cf053dd569111d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  4. See **[Smith v. Cafe Asia, ](https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[724 F. Supp. 2d 125 (D.D.C. 2010)](https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  5. [Schlagenhauf v. Holder, ](https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_121" \o “https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_121)[379 U.S. 104, 121 (1964)](https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_121" \o “https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_121). ↑
  6. [Fed. R. Civ. P. 35(a)](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), Note of Advisory Comm. ↑
  7. [Fed. R. Civ. P. 35(a)](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), Note of Advisory Comm. ↑
  8. 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2233. ↑
  9. [Fed. R. Civ. P. 35(a)](https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8B2B3610B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), Note of Advisory Comm. ↑
  10. Robinson v. De Niro, 2023 WL 1210772 (S.D.N.Y.). ↑
  11. [DeVargas v. United States,](https://www.westlaw.com/Document/I618713e0e6f111e990f2fe58d44ebc3e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I618713e0e6f111e990f2fe58d44ebc3e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 401 F. Supp. 3d 346 (E.D.N.Y. 2018)](https://www.westlaw.com/Document/I618713e0e6f111e990f2fe58d44ebc3e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I618713e0e6f111e990f2fe58d44ebc3e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  13. [Schlagenhauf v. Holder, ](https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[379 U.S. 104 (1964)](https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0a487f949bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  14. 379 U.S. at 120–21. ↑
  15. 379 U.S. at 123. ↑
  16. See, e.g., *Bodnar v. Bodnar, *441 F.2d 1103 (5th Cir. 1971). ↑
  19. Holland v. Virginia Bridge and Structures, Inc., 394 S.E.2d 867 (Va. Ct. App. 1990).* * ↑
  22. [Smith v. Café Asia,](https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 2010 WL 2867427 (D.D.C.)](https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I176a5f05963e11df86c1ad798a0ca1c1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  23. [Vopelak v. Williams,](https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 42 F.R.D. 387 (N.D. Ohio 1967)](https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  26. [Miksis v. Howard, ](https://www.westlaw.com/Document/I6813e739941111d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6813e739941111d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[106 F.3d 754 (7th Cir. 1997)](https://www.westlaw.com/Document/I6813e739941111d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I6813e739941111d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  27. [Vopelak v. Williams,](https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 42 F.R.D. 387 (N.D. Ohio 1967)](https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0dcd417554cb11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  28. [Lewis v. Neighbors Constr. Co., ](https://www.westlaw.com/Document/I626d6e00550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I626d6e00550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[49 F.R.D. 308 (W.D. Mo. 1969)](https://www.westlaw.com/Document/I626d6e00550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I626d6e00550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  34. [Warrick v. Brode, ](https://www.westlaw.com/Document/I3601ab2654f511d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3601ab2654f511d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[46 F.R.D. 427 (D. Del. 1969)](https://www.westlaw.com/Document/I3601ab2654f511d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3601ab2654f511d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  35. [Sanden v. Mayo Clinic, ](https://www.westlaw.com/Document/I030fdc8c904311d98e8fb00d6c6a02dd/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I030fdc8c904311d98e8fb00d6c6a02dd/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[495 F.2d 221 (8th Cir. 1974)](https://www.westlaw.com/Document/I030fdc8c904311d98e8fb00d6c6a02dd/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I030fdc8c904311d98e8fb00d6c6a02dd/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  37. [Swift v. Swift,](https://www.westlaw.com/Document/I19fcf20b551211d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I19fcf20b551211d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 64 F.R.D. 440 (E.D.N.Y. 1974)](https://www.westlaw.com/Document/I19fcf20b551211d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I19fcf20b551211d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  41. For a discussion of the use of video depositions, *see *Section 6.3.4 of this text. ↑
    • **The **Italia, *27 F. Supp. 785 (E.D.N.Y. 1939) (still quite good law). ↑
  45. Although the internet and other sources exist which may help in locating a specialist (see, e.g., http://imeexams.com/physicians.html), these sources do not help in determining whether particular physicians will be objective, credible, and cooperative witnesses. Experienced lawyers can be consulted for this information. ↑
  46. ABA Model Rules of Professional Conduct, Rule 1.5. ↑
    • See* discussion in § 9.4 regarding who may attend an examination. ↑
  49. [Abdulwali v. Washington Metro Area Transit Auth., ](https://www.westlaw.com/Document/Ide2ec0ad53cc11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ide2ec0ad53cc11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[193 F.R.D. 10 (D.D.C. 2002)](https://www.westlaw.com/Document/Ide2ec0ad53cc11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ide2ec0ad53cc11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  50. [Hardy v. Riser,](https://www.westlaw.com/Document/I626ef4a1550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I626ef4a1550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 309 F. Supp. 1234 (N.D. Miss. 1970)](https://www.westlaw.com/Document/I626ef4a1550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I626ef4a1550011d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  51. [Sher v. De Haven,](https://www.westlaw.com/Document/I5bd863287fbb11d9ac1ffa9f33b6c3b0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5bd863287fbb11d9ac1ffa9f33b6c3b0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 199 F.2d 777 (D.C. Cir. 1952)](https://www.westlaw.com/Document/I5bd863287fbb11d9ac1ffa9f33b6c3b0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5bd863287fbb11d9ac1ffa9f33b6c3b0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (still precedential). ↑
  52. [Fritsch v. City of Chula Vista](https://www.westlaw.com/Document/I0cd7ff88568d11d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0cd7ff88568d11d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 187 F.R.D. 614 (S.D. Cal. 2000)](https://www.westlaw.com/Document/I0cd7ff88568d11d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0cd7ff88568d11d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  53. [Laudicina v. City of Crystal Lake](https://www.westlaw.com/Document/I29c12810dc0211e88f4d8d23fc0d7c2b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I29c12810dc0211e88f4d8d23fc0d7c2b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 328 F.R.D. 510 (N.D. Ill. 2018)](https://www.westlaw.com/Document/I29c12810dc0211e88f4d8d23fc0d7c2b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I29c12810dc0211e88f4d8d23fc0d7c2b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑