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Winslow v. Montana Rail Link12/18/2001
nal distress, thus helping avoid a floodgate of emotional distress claims. Sacco, 271 Mont. at 233, 896 P.2d at 425.
Thus, given that Winslow has made an independent "Sacco" claim for infliction of emotional distress, and given our specific reliance in Sacco on the advanced state of medical testing techniques, we conclude that the pleading of the independent tort claim is sufficient to satisfy the "good cause" requirement in Rule 35, M.R.Civ.P. Accordingly, we affirm the District Court's determination that good cause has been shown for ordering a mental evaluation.
Winslow also contends that the court erred in not setting forth the manner, condition and scope of the examination prior to the examination. It is at this conjuncture that Winslow's suspicions about the purpose of the examination come into play. Winslow is correct that Rule 35, M.R.Civ.P., does require that the court "shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made." He is also correct that the court's present orders do not comply with this requirement of specificity. In addressing Winslow's concerns about the scope of the intended examination, the District Court held:
At this point, Dr. Stratford has not conducted the examination and the Court has no way of knowing what his proposed testimony will be. Furthermore, the Court does not know what evidence Winslow will offer in support of his claim for the negligent or intentional infliction of emotional distress. Thus, it is premature for the Court to determine the parameters of Dr. Stratford's testimony.
The District Court essentially adopted an "after the fact" approach in which it would address the parameters of the testimony once it had been presented. This approach, however, is not consonant with the spirit of the Rule. Recognizing the difficulties of ruling on anticipated testimony, the Rule nonetheless requires that the court, at least in a general sense, define the scope of the examination. For example, in Mapes, we limited the scope of discovery of plaintiff's psychological records by allowing defendant to depose the psychologist to determine whether, in his opinion, plaintiff suffered from any cognitive deficit caused by any factor, other than the conditions of his employment, as alleged in his complaint. Further, as to any claims of psychological damage, the defendant could also inquire as to whether plaintiff suffered from any emotional or psychological problems resulting from any factor other than the causes alleged in his complaint.
In the present case, MRL posits that Dr. Stratford should be allowed to determine the existence and extent of the alleged emotional distress injuries. We note that MRL's proposed scope of the examination is consistent with the United States Supreme Court's holding in Schlangenhauf wherein the Court approved Rule 35 examinations "to determine the existence and extent of such asserted injury." Schlangenhauf, 379 U.S. at 119. As in Mapes, Winslow can also be examined to determine whether he suffers from any emotional or mental problems which are the result of factors other than the causes alleged in his complaint. In addressing Winslow's asserted emotional distress injuries, Dr. Stratford will presumably arrive at an opinion as to the existence and extent of the injuries. Although an examining physician may not invade the province of the jury by testifying that a claimant is or is not truthful, to the extent that the physician's findings confirm or conflict with the claimant's assertions, his or her testimony may assist the jury in weighing the claimant's credibility. Benjamin v. Torgerson, 1999 MT 216, 295 Mont. 528, 985 P.2
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