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Rule 35 – Physical and Mental Examination of Persons

May 13, 2021 | Civil Procedure, Maine

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a licensed physician or a mental examination by a licensed psychologist, or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
(b) Report of Examining Physician or Psychologist.

(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requestor a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the person against whom the order is made shows that it is unobtainable. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner’s testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.
(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of the deposition of the examiner in accordance with the provision of any other rule.

Me. R. Civ. P. 35

Advisory Committee’s Notes 1993

Rule 35(a) is amended to permit the court to order a mental examination by a “licensed . . . psychologist.” The change, which is in accord with a 1988 Congressional revision of Federal Rule 35(a), reflects the increasing incidence of claims involving mental or emotional condition in civil litigation and the corresponding need for increased resort to psychologists. In Maine, licensed psychologists are those practitioners defined in 32 M.R.S.A. §3811(2) and qualified and licensed as provided in 32 M.R.S.A. § §3831(2), 3832-36. A psychologist from another state satisfies the rule if qualified and licensed under similar provisions of that state’s law.

The amendment also expressly requires that examining physicians be “licensed.” The rule thus requires licensure pursuant to 32 M.R.S.A. § §3270, 3271-3276, for physicians or 32 M.R.S.A. § §2571 – 2573 for osteopathic physicians, or similar provisions in another state.

The amendment does not extend as far as the December 1991 amendment of the federal rule to include any “suitably licensed or certified examiner,” because of the extreme range and variety in licensing provisions and standards.

Rules 35(b)(1) and (3) are amended for conformity with the amendment of Rule 35(a) by using the term “examiner” to refer to either a licensed physician or a licensed psychologist. Cf. Rule 35(b)(2).