A party whose mental or physical condition–is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner

Rule 35. Physical and Mental Examinations

Interesting study is to remember that many State laws have their origin (or are ‘patterned after’) a Federal law. A quick google search on the subject yields the following:

Like the California rule that was patterned on it, rule 35 requires that physical or mental condition be "in controversy" before an examination is appropriate.

As we read section 2032, and rule 35 of the Federal Rules of Civil Procedure from which section 2032 was taken, the section covers all reports of an examining physician's findings and conclusions.

As section 2032 was substantially based upon rule 35 of the Federal Rules of Civil Procedure (28 U.S.C.) as originally executed, ( Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 375 [ 15 Cal.Rptr. 90, 364 P.2d 266]), we note a further rule of construction: "`When legislation has been judicially construed and a subsequent statute on the same or an analogous subject is framed in the identical language, it will ordinarily be presumed that the Legislature intended that the language as used in the later enactment would be given a like interpretation. This rule is applicable to state statutes which are patterned after federal statutes.

Rule 35. Physical and Mental Examinations

(a) Order for an Examination.

(1) In General.

The court where the action is pending may order a party whose mental or physical condition including blood group is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

(2) Motion and Notice; Contents of the Order.

The order:

(A) maybe made only on motion for good cause and on notice to all parties and the person to be examined; and

(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

(b) Examiner’s Report.

(1) Request by the Party or Person Examined.

The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.

(2) Contents.

The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.

(3) Request by the Moving Party.

After delivering the reports, the party who moved for the examination may request and is entitled to receive from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.

(4) Waiver of Privilege.

By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have in that action or any other action involving the same controversy -- concerning testimony about all examinations of the same condition.

(5) Failure to Deliver a Report.

The court on motion may order on just terms that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.

(6) Scope.

This subdivision (b) applies also to an examination made by the parties' agreement unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner's report or deposing an examiner under other rules.

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MICHAEL HAIBY, RN

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Michael Haiby, RN provides the service of defense medical examination observer to plaintiff attorneys. Plaintiff individuals may ask their attorney's office to have their attorney’s office make contact with Michael Haiby, RN for more information on scheduling our DME observer attendance services--only an attorney can give legal advice—CONSULT YOUR ATTORNEY.