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Federal Rules of Civil Procedure
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Federal Rule of Civil Procedure 35 governs court-ordered physical and mental examinations when a condition is in controversy and good cause exists. This article explains examination scope, examiner reports, privilege waiver, Rule 26 disclosures, Rule 702 admissibility, Rule 37 sanctions, and practical considerations for expert testimony.
Federal Rule of Civil Procedure 35 allows a federal court to order a party whose physical or mental condition is in controversy to submit to an examination. The court may also order a party to produce for examination a person in that party's custody or legal control. For a court-ordered examination under Rule 35(a), the moving party must show good cause and obtain an order specifying the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. Rule 35(b) also applies to examinations conducted by agreement unless the agreement provides otherwise.
Rule 35 may be particularly relevant when litigation involves disputed physical injuries, psychological conditions, cognitive functioning, disability, or other health-related issues. If the examiner may later provide expert testimony, counsel must also consider Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702.
This guide explains when Rule 35 applies, what the examination and report may involve, and how the rule relates to expert disclosure and testimony.
Rule 35 allows the court where the action is pending to order a party whose physical or mental condition is in controversy to submit to an examination by a suitably licensed or certified examiner. The court may also order a party to produce for examination a person in that party's custody or legal control.
An examination order may be entered only:
On motion.
For good cause.
After notice to all parties and the person to be examined.
The order must identify the time, place, manner, conditions, and scope of the examination and the person or persons who will conduct it.
Federal Rule of Civil Procedure 35 allows a federal court to order a party whose physical or mental condition is in controversy to submit to an examination. The court may also order a party to produce for examination a person in that party's custody or legal control. For a court-ordered examination under Rule 35(a), the moving party must show good cause and obtain an order specifying the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. Rule 35(b) also applies to examinations conducted by agreement unless the agreement provides otherwise.
Rule 35 may be particularly relevant when litigation involves disputed physical injuries, psychological conditions, cognitive functioning, disability, or other health-related issues. If the examiner may later provide expert testimony, counsel must also consider Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 702.
This guide explains when Rule 35 applies, what the examination and report may involve, and how the rule relates to expert disclosure and testimony.
Rule 35 allows the court where the action is pending to order a party whose physical or mental condition is in controversy to submit to an examination by a suitably licensed or certified examiner. The court may also order a party to produce for examination a person in that party's custody or legal control.
An examination order may be entered only:
On motion.
For good cause.
After notice to all parties and the person to be examined.
The order must identify the time, place, manner, conditions, and scope of the examination and the person or persons who will conduct it.
The party requesting a Rule 35 examination must show that the condition is genuinely in controversy and that good cause exists for the particular examination.
The Supreme Court addressed these requirements in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The Court held that relevance or conclusory allegations alone are insufficient. The requesting party must establish both requirements.
In some circumstances, the pleadings themselves can establish the Rule 35 requirements. In Schlagenhauf, the Supreme Court explained that a plaintiff in a negligence action who asserts a mental or physical injury places that injury in controversy and provides the defendant with good cause for an examination to determine the existence and extent of the asserted injury.
When the person to be examined has not placed the condition at issue in support of or in defense of a claim, the movant must affirmatively show that the condition is genuinely in controversy and that good cause exists for the particular examination requested.
In either situation, the requested examination should correspond to the condition actually in controversy and the type of examination sought.
Rule 35 does not restrict examinations to physicians. It requires a suitably licensed or certified examiner whose qualifications fit the examination requested.
The 1991 Advisory Committee Notes explain that licensed or certified professionals such as dentists or occupational therapists may qualify when appropriate. Depending on the disputed condition, the examiner may be a physician, psychiatrist, psychologist, or another professional who is suitably licensed or certified and whose qualifications fit the examination requested.
A psychologist practicing neuropsychology may serve when suitably licensed or certified and appropriately qualified for the proposed examination.
The appropriate discipline depends on the condition in controversy and the type of examination authorized.
What the examiner may evaluate depends primarily on the court's order, the examiner's professional discipline, and the condition in controversy.
For forensic psychological examinations, professional guidance supports using relevant sources such as records, interviews, and testing. Other examinations may involve different materials or methods depending on the authorized scope and the examiner's discipline.
The examiner may address findings, diagnoses, conclusions, test results, and professional opinions within the scope authorized by the court. If those opinions are later offered as expert testimony, their admissibility is governed by Rule 702 and other applicable evidentiary rules.
The court determines questions of admissibility and instructs on the governing law, while the trier of fact resolves disputed factual issues and, where applicable, liability.
Rule 35(b) allows the party against whom the examination order was issued, or the person examined, to request the examiner's written report. The party who moved for the examination must then provide it, along with reports of earlier examinations of the same condition as required by Rule 35.
The examiner's written report must set out the findings in detail, including diagnoses, conclusions, and the results of any tests.
After producing those reports, the moving party may request reports of earlier or later examinations of the same condition, subject to Rule 35(b)(3).
Rule 35(b) also applies to examinations conducted by agreement unless the agreement states otherwise.
Rule 35 contains a specific privilege-waiver provision. Under Rule 35(b)(4), if the examined party requests and obtains the examiner's report or deposes the examiner, that party waives any applicable privilege concerning testimony about all examinations of the same condition.
The waiver applies in the action and in another action involving the same controversy, as specified by Rule 35. Counsel should therefore consider the potential waiver before requesting the report or deposing the examiner.
Under Rule 35(b)(5), the court may, on motion and on just terms, order a party to deliver a required examination report. If the report is not provided, the court may exclude the examiner's testimony at trial.
No. Rule 35(b) and Rule 26(a)(2) impose different obligations. A Rule 35 report addresses the examination and includes findings, diagnoses, conclusions, and test results. Rule 26(a)(2) governs disclosure of witnesses who may present expert evidence at trial.
If the examiner will provide expert testimony at trial and is retained or specially employed to provide expert testimony in the case, or is a party employee whose duties regularly involve giving expert testimony, Rule 26(a)(2)(B) generally requires a written report prepared and signed by the witness, unless otherwise stipulated or ordered by the court.
The report must contain:
All opinions and their bases and reasons.
Facts or data considered.
Any exhibits that will be used to summarize or support the opinions.
The witness's qualifications, including a list of publications authored during the previous 10 years.
Prior expert testimony during the previous four years.
Compensation for the study and testimony.
If Rule 26(a)(2)(B) does not require a written report, Rule 26(a)(2)(C) generally requires disclosure of the subject matter and a summary of the expected facts and opinions, unless otherwise stipulated or ordered by the court.
A Rule 35 report does not automatically satisfy Rule 26. Counsel should also review applicable disclosure and timing requirements, the scheduling order, and local rules.
Permission to conduct a Rule 35 examination does not automatically establish that the examiner's opinions are admissible at trial. If the examiner provides expert testimony, Federal Rule of Evidence 702 applies.
Rule 702 requires the witness to be qualified as an expert by knowledge, skill, experience, training, or education. The proponent must also demonstrate to the court, more likely than not, that:
The expert's specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue.
The testimony is based on sufficient facts or data.
The testimony is the product of reliable principles and methods.
The expert's opinion reflects a reliable application of those principles and methods to the facts of the case.
Rule 35 and Rule 702 address different questions. Rule 35 governs whether a physical or mental examination may occur and under what conditions. Rule 702 governs whether the examiner's proposed expert testimony is admissible, although other evidentiary rules may also apply.
Even after the court authorizes the examination, the examiner's qualifications, methodology, factual foundation, reliability, or scope of opinions may still be challenged.
Failure to obey a Rule 35 discovery order can lead to sanctions under Federal Rule of Civil Procedure 37.
Depending on the circumstances, Rule 37(b)(2) permits sanctions such as treating designated facts as established, prohibiting a party from supporting or opposing designated claims or defenses or introducing designated matters into evidence, striking pleadings, staying proceedings, dismissing an action or proceeding in whole or in part, or entering default judgment.
Rule 37(b)(2)(C) also provides that, instead of or in addition to those sanctions, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the failure was substantially justified or other circumstances make an award of expenses unjust.
Rule 37(b)(2)(A)(vii) excludes an order to submit to a physical or mental examination from the contempt sanction.
If a party fails to comply with a Rule 35(a) order requiring it to produce another person for examination, Rule 37(b)(2)(B) permits the sanctions listed in Rule 37(b)(2)(A)(i) through (vi), unless the party shows that it cannot produce the other person.
A focused Rule 35 request or response should connect the proposed examination to the condition actually disputed in the case.
Counsel may need to consider:
Condition and good cause. Identify the disputed condition and basis for the examination.
Examiner qualifications. Confirm that the examiner is suitably licensed or certified and appropriately qualified for the proposed examination.
Scope of the order. Address time, place, manner, conditions, testing, and other limits.
Existing evidence. Review relevant records, prior examinations, and testing.
Discovery deadlines. Coordinate the examination, report, depositions, disclosures, and motions.
Privilege. Consider Rule 35(b)(4) before requesting the report or deposing the examiner.
Expert testimony. Evaluate applicable Rule 26 and Rule 702 requirements.
Is a Rule 35 examination automatic when a plaintiff claims an injury?
No. Rule 35 requires both a condition in controversy and good cause. A claimed physical or mental injury may place the condition in controversy, but the examination and its scope must still satisfy Rule 35.
Does a Rule 35 examiner have to be a physician?
No. Rule 35 permits a suitably licensed or certified examiner. The appropriate professional depends on the condition and examination requested.
Can the person being examined obtain the Rule 35 report?
Yes. For a court-ordered examination, Rule 35(b)(1) allows either the party against whom the examination order was issued or the person examined to request the examiner's report. Rule 35(b) also applies to an examination conducted by agreement unless the agreement states otherwise. If the person examined is also a party, counsel should consider Rule 35(b)(4), under which requesting and obtaining the examiner's report, or deposing the examiner, waives any privilege that the examined party may have concerning testimony about all examinations of the same condition.
Does a Rule 35 report automatically satisfy Rule 26?
No. Rule 35(b) and Rule 26(a)(2) impose different requirements. Counsel should determine which Rule 26 disclosure obligations apply to the testifying examiner.
Can a Rule 35 examiner testify at trial?
Yes, potentially. Expert testimony remains subject to applicable Rule 26 disclosure requirements and the Federal Rules of Evidence, including Rule 702.
The party requesting a Rule 35 examination must show that the condition is genuinely in controversy and that good cause exists for the particular examination.
The Supreme Court addressed these requirements in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The Court held that relevance or conclusory allegations alone are insufficient. The requesting party must establish both requirements.
In some circumstances, the pleadings themselves can establish the Rule 35 requirements. In Schlagenhauf, the Supreme Court explained that a plaintiff in a negligence action who asserts a mental or physical injury places that injury in controversy and provides the defendant with good cause for an examination to determine the existence and extent of the asserted injury.
When the person to be examined has not placed the condition at issue in support of or in defense of a claim, the movant must affirmatively show that the condition is genuinely in controversy and that good cause exists for the particular examination requested.
In either situation, the requested examination should correspond to the condition actually in controversy and the type of examination sought.
Rule 35 does not restrict examinations to physicians. It requires a suitably licensed or certified examiner whose qualifications fit the examination requested.
The 1991 Advisory Committee Notes explain that licensed or certified professionals such as dentists or occupational therapists may qualify when appropriate. Depending on the disputed condition, the examiner may be a physician, psychiatrist, psychologist, or another professional who is suitably licensed or certified and whose qualifications fit the examination requested.
A psychologist practicing neuropsychology may serve when suitably licensed or certified and appropriately qualified for the proposed examination.
The appropriate discipline depends on the condition in controversy and the type of examination authorized.
What the examiner may evaluate depends primarily on the court's order, the examiner's professional discipline, and the condition in controversy.
For forensic psychological examinations, professional guidance supports using relevant sources such as records, interviews, and testing. Other examinations may involve different materials or methods depending on the authorized scope and the examiner's discipline.
The examiner may address findings, diagnoses, conclusions, test results, and professional opinions within the scope authorized by the court. If those opinions are later offered as expert testimony, their admissibility is governed by Rule 702 and other applicable evidentiary rules.
The court determines questions of admissibility and instructs on the governing law, while the trier of fact resolves disputed factual issues and, where applicable, liability.
Rule 35(b) allows the party against whom the examination order was issued, or the person examined, to request the examiner's written report. The party who moved for the examination must then provide it, along with reports of earlier examinations of the same condition as required by Rule 35.
The examiner's written report must set out the findings in detail, including diagnoses, conclusions, and the results of any tests.
After producing those reports, the moving party may request reports of earlier or later examinations of the same condition, subject to Rule 35(b)(3).
Rule 35(b) also applies to examinations conducted by agreement unless the agreement states otherwise.
Rule 35 contains a specific privilege-waiver provision. Under Rule 35(b)(4), if the examined party requests and obtains the examiner's report or deposes the examiner, that party waives any applicable privilege concerning testimony about all examinations of the same condition.
The waiver applies in the action and in another action involving the same controversy, as specified by Rule 35. Counsel should therefore consider the potential waiver before requesting the report or deposing the examiner.
Under Rule 35(b)(5), the court may, on motion and on just terms, order a party to deliver a required examination report. If the report is not provided, the court may exclude the examiner's testimony at trial.
No. Rule 35(b) and Rule 26(a)(2) impose different obligations. A Rule 35 report addresses the examination and includes findings, diagnoses, conclusions, and test results. Rule 26(a)(2) governs disclosure of witnesses who may present expert evidence at trial.
If the examiner will provide expert testimony at trial and is retained or specially employed to provide expert testimony in the case, or is a party employee whose duties regularly involve giving expert testimony, Rule 26(a)(2)(B) generally requires a written report prepared and signed by the witness, unless otherwise stipulated or ordered by the court.
The report must contain:
All opinions and their bases and reasons.
Facts or data considered.
Any exhibits that will be used to summarize or support the opinions.
The witness's qualifications, including a list of publications authored during the previous 10 years.
Prior expert testimony during the previous four years.
Compensation for the study and testimony.
If Rule 26(a)(2)(B) does not require a written report, Rule 26(a)(2)(C) generally requires disclosure of the subject matter and a summary of the expected facts and opinions, unless otherwise stipulated or ordered by the court.
A Rule 35 report does not automatically satisfy Rule 26. Counsel should also review applicable disclosure and timing requirements, the scheduling order, and local rules.
Permission to conduct a Rule 35 examination does not automatically establish that the examiner's opinions are admissible at trial. If the examiner provides expert testimony, Federal Rule of Evidence 702 applies.
Rule 702 requires the witness to be qualified as an expert by knowledge, skill, experience, training, or education. The proponent must also demonstrate to the court, more likely than not, that:
The expert's specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue.
The testimony is based on sufficient facts or data.
The testimony is the product of reliable principles and methods.
The expert's opinion reflects a reliable application of those principles and methods to the facts of the case.
Rule 35 and Rule 702 address different questions. Rule 35 governs whether a physical or mental examination may occur and under what conditions. Rule 702 governs whether the examiner's proposed expert testimony is admissible, although other evidentiary rules may also apply.
Even after the court authorizes the examination, the examiner's qualifications, methodology, factual foundation, reliability, or scope of opinions may still be challenged.
Failure to obey a Rule 35 discovery order can lead to sanctions under Federal Rule of Civil Procedure 37.
Depending on the circumstances, Rule 37(b)(2) permits sanctions such as treating designated facts as established, prohibiting a party from supporting or opposing designated claims or defenses or introducing designated matters into evidence, striking pleadings, staying proceedings, dismissing an action or proceeding in whole or in part, or entering default judgment.
Rule 37(b)(2)(C) also provides that, instead of or in addition to those sanctions, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the failure was substantially justified or other circumstances make an award of expenses unjust.
Rule 37(b)(2)(A)(vii) excludes an order to submit to a physical or mental examination from the contempt sanction.
If a party fails to comply with a Rule 35(a) order requiring it to produce another person for examination, Rule 37(b)(2)(B) permits the sanctions listed in Rule 37(b)(2)(A)(i) through (vi), unless the party shows that it cannot produce the other person.
A focused Rule 35 request or response should connect the proposed examination to the condition actually disputed in the case.
Counsel may need to consider:
Condition and good cause. Identify the disputed condition and basis for the examination.
Examiner qualifications. Confirm that the examiner is suitably licensed or certified and appropriately qualified for the proposed examination.
Scope of the order. Address time, place, manner, conditions, testing, and other limits.
Existing evidence. Review relevant records, prior examinations, and testing.
Discovery deadlines. Coordinate the examination, report, depositions, disclosures, and motions.
Privilege. Consider Rule 35(b)(4) before requesting the report or deposing the examiner.
Expert testimony. Evaluate applicable Rule 26 and Rule 702 requirements.
Is a Rule 35 examination automatic when a plaintiff claims an injury?
No. Rule 35 requires both a condition in controversy and good cause. A claimed physical or mental injury may place the condition in controversy, but the examination and its scope must still satisfy Rule 35.
Does a Rule 35 examiner have to be a physician?
No. Rule 35 permits a suitably licensed or certified examiner. The appropriate professional depends on the condition and examination requested.
Can the person being examined obtain the Rule 35 report?
Yes. For a court-ordered examination, Rule 35(b)(1) allows either the party against whom the examination order was issued or the person examined to request the examiner's report. Rule 35(b) also applies to an examination conducted by agreement unless the agreement states otherwise. If the person examined is also a party, counsel should consider Rule 35(b)(4), under which requesting and obtaining the examiner's report, or deposing the examiner, waives any privilege that the examined party may have concerning testimony about all examinations of the same condition.
Does a Rule 35 report automatically satisfy Rule 26?
No. Rule 35(b) and Rule 26(a)(2) impose different requirements. Counsel should determine which Rule 26 disclosure obligations apply to the testifying examiner.
Can a Rule 35 examiner testify at trial?
Yes, potentially. Expert testimony remains subject to applicable Rule 26 disclosure requirements and the Federal Rules of Evidence, including Rule 702.
Federal Rules of Civil Procedure
Federal Rules of Civil Procedure