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Winslow v. Montana Rail Link12/18/2001
me mental or physical condition; but such waiver shall not apply to any treatment, consultation, prescription or examination for any mental or physical condition not related to the pending action. Upon motion seasonably made, and upon notice and for good cause shown, the court in which the action is pending, may make an order prohibiting the introduction in evidence of any such portion of the medical record of any person as may not be relevant to the issues in the pending action.
(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.
The District Court relied upon the United States Supreme Court decision in Schlangenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152, in concluding that the pleadings themselves can establish good cause for ordering a mental examination. Schlangenhauf is the seminal decision concerning Rule 35 examinations. Rule 35(a), Fed.R.Civ.P., is the same as Rule 35(a), M.R.Civ.P. We adopted the Schlangenhauf standard for Rule 35, M.R.Civ.P., examinations in Marriage of Binsfield (1995), 269 Mont. 336, 888 P.2d 889. In Schlangenhauf, the Supreme Court stated:
Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury , c.f. Sibbach v. Wilson & Co., supra, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. Schlangenhauf, 379 U.S. at 119.
Winslow relies on Neal v. Siegel-Robert, Inc. (E.D. Mo. 1996), 171 F.R.D. 264, for the proposition that the mere fact that a plaintiff has requested emotional distress damages does not necessarily mean that a party has placed his mental capacity in controversy. As the District Court observed, however, the plaintiff in Neal had referred to emotional distress only as a component of general damages. In contrast, Winslow, in count three of his amended complaint, has made a specific claim for negligent or intentional infliction of emotional distress.
Winslow also relies on our decision in Binsfield. Binsfield, however, is distinguishable. Binsfield was a dissolution proceeding in which the husband contended that the wife was not mentally capable, and thus he requested an independent medical examination. The Court determined that the husband had failed to demonstrate the wife's mental condition was "in controversy" and thus a Rule 35, M.R.Civ.P., examination was not warranted. Unlike the present case, there was no independent "Sacco" tort claim involved.
In Sacco v. High Country Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411, we held that an independent cause of action for negligent infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant's negligent act or omissions. Liability only arises when the emotional distress is "extreme." We adopted that same standard for intentional infliction of emotional distress claims and reaffirmed the requirement that the emotional distress suffered must be "serious or severe." Sacco, 271 Mont. at 237, 896 P.2d at 428. In deciding Sacco, we reasoned that with "today's more advanced state of medical science, technology and testing techniques," there is better capability to determine whether a party truly suffers emotio
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