Plaintiff’s Claim of Damages for Pain and Suffering Do Not Open Door to a Rule 35 Psychological Examination

The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim.

In Lewis v. 8th Judicial District,  OP 12-0401 (Mont. S. C. Sept. 11, 2012) Lewis brought a claim for damages arising after she hit by a car while crossing the street as a pedestrian.  Lewis did not claim damages for any mental or psychological disorder or injury due to the accident, nor did she claim that a pre-existing mental condition was exacerbated by the accident or assert an independent tort claim for negligent infliction of emotional distress. Rather, she made only a general claim for "emotional pain, suffering and anxiety" associated with her physical injuries from the accident.

Lewis maintained that the motor vehicle/pedestrian accident is solely responsible for her current and continuing issues with pain. However, a physician who examined Lewis on behalf of State Farm questioned whether her chronic pain may be caused or exacerbated by her preexisting mental health issues.

Lewis’ uninsured motorist carrier, State Farm, sought and received a court-ordered Rule 35 psychological examination.  Lewis sought appellate court review of the trial court’s order,  

The Montana Supreme Court held that "constitutionally-based privacy concerns [under the Constitution of the State of Montana] require that Rule 35 examinations be ordered only when the party to be examined has put his or her physical or mental condition at issue, and when there is good cause for the examination."  The court then followed the of the federal courts interpreting a similar provision, saying as follows:

In applying Fed. R. Civ. P. 35, “[m]ost cases in which courts have ordered mental examinations pursuant  to Rule 35(a) involve something more than just a claim of emotional distress.” Turner v.  Imperial Stores, 161 F.R.D. 89, 93 (S.D. Ca. 1995). The majority of federal courts  “recognize that a mental exam is warranted when one or more of the following factors are  present: (1) a tort claim is asserted for intentional or negligent infliction of emotional  distress; (2) an allegation of a specific mental or psychiatric injury or disorder is made; (3) a  claim of unusually severe emotional distress is made; (4) plaintiff intends to offer expert  testimony in support of [a] claim for emotional distress damages; and/or (5) plaintiff concedes that her mental condition is in controversy within the meaning of Rule 35.”  Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 554 (N.D. Ga. 2001).

Under the circumstances set forth above, the court concluded that a Rule 35 psychological examination was not appropriate and ordered the trial court to set aside its order.