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Winslow v. Montana Rail Link12/18/2001
of potentially-privileged medical information under Rule 35(a), M.R.Civ.P. The question of whether the court must define the conditions, manner and scope of a Rule 35 examination before the examination is conducted is one of first impression and is of statewide importance. If, as alleged, the District Court is proceeding under a mistake of law as to the scope of such discovery, the harm cannot be remedied by way of appeal. Accordingly, we accept jurisdiction over this matter.
Discussion
Winslow concedes that, in pleading an independent claim for negligent or intentional infliction of emotional distress, he has placed his mental condition in controversy. However, he contends that he has not sought psychological care nor does he plan to retain an expert witness to testify on the subject. He posits that it is, therefore, not necessary for Montana Rail Link (MRL) to present expert testimony to meet Winslow's proof. He argues further that, given his suspicions that the examination might be improperly used to assess his credibility, the court erred in concluding that the mere filing of a claim for infliction of emotional distress is sufficient to satisfy the good cause requirement of Rule 35, M.R.Civ.P.
Rule 35, M.R.Civ.P., provides:
Rule 35. Physical and mental examination of persons.
Rule 35(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 the 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.
Rule 35(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 the requesting party a copy of the detailed written report of the examiner setting out the examiner's findings, including results of all tests made, diagnosis 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 shows that the party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner's testimony if offered at the trial.
(2) Waiver of privilege. Either by (1) requesting and obtaining a report of the examination ordered as provided herein, or by taking the deposition of the examiner, or by (2) commencing an action or asserting a defense which places in issue the mental or physical condition of a party to the action, the party examined or a party to the action waives any privilege the party may have in that action or any other action involving the same controversy, regarding the testimony of every person who has treated, prescribed, consulted, or examined or may thereafter treat, consult, prescribe or examine, such party in respect to the sa
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