COD Rule 35: When It Applies, Who’s Covered, and Refusal Consequences

Federal Rule of Civil Procedure 35 allows a federal court to order a party to submit to a physical or mental examination when that party’s health is a genuine, disputed issue in the lawsuit. The rule keeps a person who claims injury or mental harm from blocking the other side’s access to independent medical evidence about that condition. Because a compelled medical exam is one of the more invasive tools in civil discovery, courts apply Rule 35 with tighter controls than most other discovery requests: the moving party has to show both a real medical dispute and a specific need before any exam is ordered.¹

When the Rule Can Be Used

Rule 35 applies only when a party’s physical or mental condition is “in controversy,” meaning the medical issue is genuinely disputed as part of a claim or defense. A plaintiff suing over back injuries from a car crash puts their spinal condition in controversy. A defendant asserting psychological incapacity as an affirmative defense does the same. The rule also expressly covers blood group testing, a provision aimed at paternity and related disputes.¹

Being sued is not, by itself, enough. The Supreme Court held in Schlagenhauf v. Holder that sweeping examinations are not automatically available just because someone was involved in an accident and faces a general negligence claim. The condition must be “really and genuinely in controversy,” not merely relevant in some background way.²

On top of the “in controversy” showing, the requesting party must demonstrate “good cause” for the specific examination sought. Good cause means more than saying an exam would be useful. Courts typically look for evidence that existing medical records, deposition testimony from treating doctors, and other less intrusive methods will not answer the medical question. The Supreme Court described these two requirements as demanding “discriminating application” by the trial judge, and conclusory allegations in the pleadings will not satisfy either one.²

Who Can Be Ordered to Submit

Rule 35 reaches any party to the lawsuit, plaintiff or defendant. It also reaches a person in the custody or under the legal control of a party. That second category matters most when a parent sues on behalf of an injured child: the court can order the child examined even though the child is not a named party. The rule stops there. It does not reach non-parties who are simply witnesses or bystanders, even when their medical condition has some relevance to the dispute.¹

How an Examination Gets Ordered

If the parties cannot work out exam terms on their own, the requesting party files a motion with notice to every party and to the person to be examined. Any resulting order has to spell out:

The time and place of the examination.
The manner, conditions, and scope of the testing.
The specific conditions the examiner is allowed to evaluate.
The identity of the examiner, who must be suitably licensed or certified.

Courts use that specificity as a check on fishing expeditions. If a plaintiff claims a lower-back injury, the order will usually limit the exam to orthopedic testing of that area rather than green-lighting a head-to-toe workup. The narrower the disputed condition, the narrower the permitted exam.¹

An exam does not always require a court order. Parties can agree to one by stipulation, and many exams happen that way in practice. The report-sharing and privilege-waiver provisions of Rule 35 still apply to an agreed exam unless the stipulation says otherwise, so a party who wants different terms has to write them into the agreement.¹

The examiner does not have to be a physician. Rule 35 requires only that the examiner be “suitably licensed or certified,” which lets courts appoint psychologists, vocational rehabilitation specialists, and other licensed professionals whose expertise matches the disputed condition.¹

Attorneys and Recording Devices

Rule 35 does not address whether the examined party’s lawyer can attend, and federal courts have been largely uniform in refusing to recognize a right to have an attorney present during the exam. They have generally refused to allow recording devices too, absent a specific showing of good cause. If you have concerns about how the exam will be conducted, raise them with the court in advance. Some courts have permitted a non-attorney observer or imposed other protective conditions when a party shows a specific reason for concern.³

Getting the Report and the Privilege Trade-Off

After the exam, the examined party can request the examiner’s written report. The party who arranged the exam must then produce it along with reports from any earlier exams of the same condition. The report has to detail the examiner’s findings, diagnoses, conclusions, and all test results.¹

That request comes at a price. By asking for the report or deposing the examiner, the examined party waives doctor-patient privilege for testimony about all examinations of the same condition. The waiver applies in the current case and in any other case involving the same medical dispute. Once triggered, the examined party also has to produce reports from every other doctor who has examined them for that condition, whether those exams happened before or after the Rule 35 exam. You cannot cherry-pick the favorable ones.¹

Consequences of Refusing an Exam

Ignoring a court-ordered Rule 35 examination brings serious consequences under Rule 37. Available sanctions include:

Treating disputed facts about the medical condition as established in favor of the requesting party.
Barring the refusing party from supporting or opposing specific claims or introducing certain evidence.
Striking part or all of the refusing party’s pleadings.
Staying the case until the party complies.
Dismissing the refusing party’s claims or entering a default judgment against them.

The court can also order the refusing party or the attorney to pay the other side’s reasonable expenses, including attorney’s fees, caused by the refusal, unless the refusal was substantially justified.⁴

One important limit: contempt is expressly excluded as a sanction for refusing a physical or mental examination. Congress drew that line out of respect for bodily autonomy, so no one can be physically forced into an exam room. The litigation consequences of saying no can still be severe, since a court can effectively decide the medical issues against you or throw your case out.⁴

When an order requires a party to produce someone else for an exam, such as a child in that party’s custody, the same sanctions apply. The only real defense is showing that the party genuinely cannot produce the other person, not just that they would prefer not to.⁴

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 35 – Physical and Mental Examinations
2
Justia. Schlagenhauf v Holder, 379 US 104 (1964)
3
United States Courts. Proposed Amendment to Rule 35 – Physical and Mental Examinations
4
Office of the Law Revision Counsel. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions