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Avila v. Superior Court8/29/1991
ed that his expert's qualifications meet those imposed by the rule, and has not established the good cause required to obtain such an examination even by such a qualified expert. As plaintiff pointed out in his response to defendant's motion for an independent examination:
The defendant, of course, has other discovery devices available to him. He can take the plaintiff's deposition, and in fact has done so. He can send out interrogatories to be answered by the plaintiff, and in fact has done so. He can obtain disclosure of plaintiff's relevant medical records, and in fact has done so. He could have obtained a medical examination of the plaintiff's physical condition. Defendant, in other words, has adequate means to obtain whatever information is necessary to prepare his occupational expert to render an opinion.
We give great weight to the federal interpretation of analogous procedural rules. Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971). Under federal law, three requirements are necessary for a court to order a Rule 35 examination: (1) the party's physical or mental condition must be in controversy; (2) the expert must meet the professional qualifications required; and (3) good cause must be shown. Acosta, 913 F.2d at 208. In this case, although plaintiff's ability to work is clearly at issue, the other two requirements have not been met. The trial court abused its discretion in ordering plaintiff to undergo an examination by a vocational rehabilitation specialist.
The trial court's order granting defendant's motion for an independent examination by a vocational specialist is vacated. In the exercise of our discretion, we deny plaintiff's request for attorneys' fees.
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