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Physical and Mental Examinations Under Rule 35: Procedural Challenges and Privacy Issues

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, June 18, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will provide in-depth analysis and practical recommendations for preparing plaintiffs for defense physical or mental examinations taken. Because these examinations will inevitably be allowed, plaintiff’s counsel should engage defense counsel to limit the scope of examination and minimize intrusiveness and overreaching. The panel will discuss all facets of contending with these examinations and the examiners themselves, in discovery and at trial.

Description

When a plaintiff claims physical or mental injury, Federal Rule 35 (and state counterparts) permits defense counsel "for cause" to require that plaintiff submit to a physical or mental exam. Because such examinations are allowed under the Federal Rules, plaintiffs have little to gain by opposing such examinations if they fall within the parameters of the rule. Rather, the wiser course is to focus on making sure that the examinations are reasonable, as non-invasive as possible, and as fair as they can be.

Counsel must set limits on the scope of examinations and clearly define the issues to which they relate. Thorough knowledge of the practitioner who will conduct the examination and of the types of tests to be done is critical. Counsel should also have ready and know when to file a motion for a protective order.

Listen as this stellar panel discusses how to prepare for and defend a defense request under Rule 35 or its typical state analog. The panel will cover such topics as preparing the client from the beginning of the case for such exams, the role of document requests, preparing for cross-examination of the “independent” professional, bias, the use of audio or video examinations, timing and other logistics of the exam, issues regarding the discovery deposition of the examiner, and dealing with the examiner and the examination at trial.

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Outline

  1. Notice vs. order
  2. Pre-examination issues
    1. Limitations and conditions
    2. Preparation of client
  3. Privacy and recordings
  4. Report
  5. Discovery
  6. Trial

Benefits

The panel will review these and other critical questions:

  • What if anything does the language in Rule 35 regarding orders and cause mean?
  • What items can be included and excluded from a Rule 35 examination?
  • Who may participate in preparing the report under the rule?
  • Are there any privacy limitations on the examination?
  • What are the strategies for witness examination and discovery?

Faculty

Fitzpatrick, Robert
Robert B. Fitzpatrick
Founder
Robert B. Fitzpatrick

Mr. Fitzpatrick has over forty years of experience in all aspects of employment law and the resolution of employment...  |  Read More

Stravitz, Eric
Eric Stravitz
Owner
Stravitz Law Firm

Mr. Stravitz handles cases involving personal injuries, car crashes, trucking crashes, medical malpractice, premises...  |  Read More

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