Posted: November 16, 2016
Rules of Civil Procedure – Comment Period Closed December 31, 2016
URCP035 Physical and mental examination of persons. Amend. The 2016 amendments to Rule 35 clarify when there is overlap between a Rule 26(a)(4) expert report and when there is not. It also provides for the shorter of a 60-day time frame or 7 days prior to the close of fact discovery in which the party requesting the Rule 35 examination must disclose the report to the person being examined. This is the second request for comment.
60 days is a long time. Unnecessarily long. When a plaintiff is required to submit to an exam, an examiner should be able to provide a report within 28 days from the exam. To allow more than that will only drag out discovery. The trend has been to shorten discovery and encourage parties to exchange information earlier, not later.
On line 12, consider replacing “shorter” with “earlier”—this is more consistent with the usage in other rules.
Regarding the proposed URCP 35 amendments, would you kindly further amend the rule, and associated deadlines, to clarify whether a URCP 35 examination is treated as “fact” or “expert” discovery. That is an issue of dispute, with some district court judges saying it is fact discovery–which closes prior to expert discovery, and some treating it as expert discovery–based on the comment stating that the Rule 35 report is to be treated as an expert report.
My own preference would be to treat a Rule 35 exam as expert discovery. A big reason, for me, is that oftentimes I like my Rule 35 examiner to utilize fact discovery materials, including depositions, to aid in performing the exam and in forming his or her opinions.
Thank you.
Just a comment about this rule change from the defense perspective that you can share with the Rules Committee, who are mostly commercial litigators or judges and don’t work with this rule.
We’ve always felt that the IME component is an expert discovery tool. The physician is a paid expert by the defense who examines the Plaintiff for purposes of expert discovery, not fact discovery. Fact discovery in such a case involves a review of the existing medical records and perhaps testimony of the treating physicians. The IME physician is retained specifically to examine the records and testimony before offering her own expert opinion on the Plaintiff. We have always used the IME physician as a retained expert and disclosed her opinions in expert discovery.
The timing also is such that an IME usually comes late in fact discovery or in expert discovery. Often medical providers do not provide records or offer depositions until late in fact discovery. That now means that the defense may lose the option of an IME unless fact discovery gets extended, which the courts don’t always want to do.
We’ve run into Plaintiffs who insist that this is a fact discovery tool as a means of forcing the case to move. However, we again do not make an assessment as to the need for an IME until later in fact discovery. We think it is best to have the IME report produced within the set time as set by the rules and that the IME take place either in fact or expert discovery.
We bring this opinion not from an abstract view but from the practical perspective of attorneys who work with this everyday. The rule may make sense on paper, but in a practical sense it does not always work this way.