Rules of Civil Procedure

Rules of Civil Procedure  Civil Procedure Rule 35: Physical and mental examination of persons

Effective Date: 09/01/2023
Updates: Amended June 7, 2023, effective September 1, 2023

Table of Contents

(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 suitably licensed or certified examiner or to produce for examination a 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 examiner

(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 t he requesting party a copy of a detailed written report and findings of the examiner, 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 party is unable to obtain the report and so establishes. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and may exclude from trial the testimony of an examiner who fails or refuses to make a report.

(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 available 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; but the party does not otherwise waive any right to object at the trial to the introduction into evidence of the report or any part thereof.

(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 an examiner's report or the taking of a deposition of an examiner in accordance with the provisions of any other rule.

Reporter's notes

(2023) This amendment responded to the Supreme Judicial Court opinion in Ashe v. Shawmut Woodworking & Supply, Inc., 489 Mass. 529 (2022). In Ashe, the court requested the Standing Advisory Committee on the Rules of Civil Procedure “to consider whether an amendment or other guidance to rule 35 is in order consistent with this opinion” (footnote 9).

At issue in Ashe was whether a Superior Court order to submit to a physical examination by a neuropsychologist satisfied the language of Rule 35, which provided that a court may order a party to submit to a mental or physical examination by a physician upon a showing of good cause. The court held that a neuropsychologist was a “physician” within the meaning of Rule 35, and upheld the order to submit to a physical examination.

The amendment to Rule 35 replaced the word “physician” with the words “suitably licensed or certified examiner.” This amendment is consistent with a 1991 amendment to Rule 35 of the Federal Rules of Civil Procedure adding similar language to the federal rule. The 1991 Notes of the Advisory Committee on the Federal Rules of Civil Procedure are instructive in interpreting the 2023 amendment to the Massachusetts rule:

The requirement that the examiner be suitably licensed or certified is a new requirement. The court is thus expressly authorized to assess the credentials of the examiner to assure that no person is subject to a court-ordered examination by an examiner whose testimony would be of such limited value that it would be unjust to require the person to undergo the invasion of privacy associated with the examination….The revision is intended to encourage the exercise of …discretion, especially with respect to examinations by persons having narrow qualifications.

The title of Rule 35(b) has been revised to reflect the change in the rule.

In addition, stylistic changes have been made to Rule 35 to eliminate references to masculine pronouns. No substantive changes were intended.

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