The "in controversy" and "good cause" requirements of Fed. R. Civ. P. 35 are not met by mere conclusory allegations of the pleadings, nor by mere relevance to the case, but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. What may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant.
Bus passengers injured when a bus struck a tractor-trailer sued the bus owner, the bus driver, the tractor-trailer owners, and the tractor-trailer driver. The tractor-trailer owners petitioned for examination of the bus driver under Fed. R. Civ. P. 35. The district court ordered the examinations. The bus driver sought a writ of mandamus setting aside the district court judge's order. The court of appeals denied mandamus.
Have the owners of the tractor-trailer shown “good cause”?
The court held that the tractor-trailer owners failed to make the necessary showing that the bus driver's physical or mental condition was in question, or that good cause was shown for the examinations, as required by Rule 35.
Fed. R. Civ. P. 35(a) provides: Physical and Mental Examination of Persons. (a) Order for examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
This proviso requires a discerning application by the judge, who must decide whether the party requesting a mental or physical examination has adequately demonstrated the existence of the Rule's requirements of "in controversy" and "good cause," which requirements are necessarily related. This does not mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evidentiary hearing is required in all cases. It does mean, though, that the movant must produce sufficient information, in order for the judge to fulfill his function.