Rule 35 Evaluations

One of the plaintiffs in this case (Kelly) was injured in a car wreck and had “soft tissue” injuries. The defense sought and was granted a Rule 35 examination by a doctor of its chosing. The doctor opined that the plaintiff “was magnifying her symptoms and neuropsychological testing/MMPI should be considered to assist in determining the level of symptom magnification.”

The defense asked for a neuropsych evaluation and the court granted it over plaintiff’s objection. Plaintiffs were permitted an interlocutory appeal.

Rule 35 examinations may be ordered for good cause shown when physical or mental condition has been put in controvery. The plaintiffs argued that the defendant “failed to affirmatively show that [the subject plaintiff] has put her mental condition in controversy and that [the defendant] has good cause for requesting her to undergo neuropsychological testing.”

The Court of Appeals noted that “plaintiffs can be ordered to undergo mental examinations where the cases involve, in addition to a claim of emotional distress, one or more of the following: (1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff’s concession that his or her mental condition is in controversy in the meaning of Rule 35.”

The defendant argued that plaintiff’s claim of emotional injury and the Rule 35 examiner’s suggestion that she was a malinger was sufficient to trigger the “in controversy” requirement.

The Court said this: “We fail to see how the [plaintiffs’] Amended Complaint comprising the standard request for pain and suffering and emotional distress in a personal injury claim without more would put Kelly’s mental condition in controversy, warranting a compelled neuropsychological examination under T.R. 35. The evidence indicates that the Stuffs do not allege a specific cause of action for emotional distress, nor do they intend to offer expert psychological testimony to address the general emotional component of Kelly’s injury. Dr. Nukes’ broad conclusion that Kelly is magnifying her symptoms because of the minimal physical and neurologic exam findings was reached after a one-hour exam. We do not find that Dr. Nukes’ general conclusion without any specificity or other indications that Kelly has a severe mental disorder raises to a level that puts Kelly’s mental condition in controversy.”

And this: “Based on the evidence before us, we conclude that a mere routine allegation of damages for emotional distress does not place the party’s mental condition in controversy. The plaintiff must assert or defendant must show a mental injury that exceeds the common emotional reaction to an injury or loss. To permit Simmons to compel a mental examination in the instant case because the Stuffs make a garden-variety claim of damages for emotional distress would open the door to involuntary mental examinations in virtually every soft tissue injury case. We do not believe T.R. 35 was intended to authorize sweeping probes into a plaintiff’s psychological past merely because she has been injured and makes a claim for emotional distress damages without more. Accordingly, we find that the trial court’s decision ordering Kelly to submit to neuropsychological testing to be against the facts and circumstances of the case.”

Read the entire opinion here.

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