August 30, 2019 Practice Points

Excessiveness: A Discretionary Factor in the Ordering of Physical and Mental Examinations

Once the elements are satisfied, any further considerations are left to the discretion of the court.

By Angela S. Fetcher and Aaron Vance

In Moore v. City and County of San Francisco, Case No. 18-cv-00634-SI (N.D. Cal. Feb. 27, 2019), the District Court for the Northern District of California exercised its discretion and decided that ample medical records would not preclude a party from having to submit to a mental examination under Federal Rule of Civil Procedure 35.

After violating a restraining order, Sean Moore, the plaintiff, was shot twice by the police after retreating into his home and refusing to speak with them. In the course of litigation, the City and County of San Francisco, the defendants, sought a medical examination under Federal Rule of Civil Procedure 35. The exam was sought given the plaintiff’s diagnosis of schizophrenia and his conduct in his prior deposition. The plaintiff opposed the exam, alleging that it would be superfluous.

Under Rule 35, courts have authority to order a party to submit to a physical or mental examination to comply with a discovery request. The party moving for the examination must show that (1) the physical or mental condition of the party is “in controversy” and (2) “good cause” for examination exists. Upon the showing of both of these elements, it still remains within the district court’s “broad discretion” to require an examination.

In Moore, the district court judge held that the plaintiff’s mental state was “in controversy” for multiple reasons. Because the plaintiff claimed intentional infliction of emotional distress, his mental state was at the core of that claim. Furthermore, the plaintiff’s mental state was at issue because of his behavior on the morning of the incident and at his deposition. While controversy and good cause had been indicated, the plaintiff argued that the exam was unnecessary on discretionary grounds.

Moore argued that existing medical documents were sufficient to detail his condition and diagnosis. The court, in its discretion, disagreed that the existence of medical records precluded a possible medical examination. While they should be reviewed by the examiner, and might limit the scope of the examination, they are not replacements for a comprehensive psychiatric exam. Therefore, the court ordered the exam.

The takeaway from this case is to remember that once the elements are satisfied, any further considerations, such as excessiveness, are left to the discretion of the court. As was the case in Moore, just because documents provided during discovery provided similar information to an exam, they could not preclude an exam because they are not a substitute.

Angela S. Fetcher is a member of Stoll Keenon Ogden PLLC in Louisville, Kentucky. Aaron Vance is a summer associate with the firm, and a 2020 J.D. candidate at Indiana University Maurer School of Law.


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