Since I began this series, I was advised of proposed changes to Rule 35. One notable change is that the Rule 35 examination may be audio, but not video, recorded at the option of either party and at that party’s expense. Some have expressed concerns about why this change is necessary. I am not concerned about it. It is nice to have audio recordings when the plaintiff lies, is otherwise ridiculous, or the “observer” coaches the plaintiff throughout, not that any of that ever happens.
I do have concerns about two other changes. The proposed change would state the “party who moved for the examination must, on request, deliver the requestor a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition.” In other words, the plaintiff would get a copy of every single other examination the examiner has ever performed of “the same condition.”
As drafted, this change contains no time limitation. It would require literally every single examination of “the same condition.” Second, there is no such similar requirement for other experts. In other words, if the plaintiff retained a medical expert but the expert did not perform a Rule 35 examination (why would she?) then there is no record retention requirement. Third, I do not understand the rationale. How is what an examiner found with a prior examination relevant to this particular plaintiff’s allegations? I have seen no rationale for the change.
I do not understand another change that appears related. The proposed rule would state: “After delivering the report(s), the party who moved for the examination may request—and is entitled to receive—from the party against whom the examination was ordered like reports of all earlier or later examinations of the same condition,….” The defendant may ask the plaintiff for “like reports of all earlier or later examinations of the same condition… ?” There will be those that argue this language prohibits a defendant from obtaining any prior treatment records until after a Rule 35 examination occurs. Again, I have not seen the rationale for this change.
Finally, I also disagree with the drafter’s note as to the Rule 35 examination’s location. “The examination shall occur in the state in which the person to be examined resides, unless otherwise stipulated by the parties or allowed by the Court.” The default rule has been the same as depositions: the plaintiff comes to the jurisdiction. I work to schedule a plaintiff’s deposition and Rule 35 examination in one trip for efficiency sake. Changing the default location is the same as changing the default location for a deposition. If it is convenient for the plaintiff to litigate here, then she can get on a plane and come here for a Rule 35 examination.