Case: Schlagenhauf v.

Holder (1964, US) [CB 433-437]

Facts: Bus accident. P's sue for injuries, and sues the bus company, the driver,
the driver of the tractor, the company which owned the tractor, and the company
which owned the trailer attached to the tractor. All denied negligence. Cross-
claim filed by bus company against the tractor company and the trailer company,
alleging negligence on their driver (petitioner). Tractor company, after filing
answer denying the claim, submitted a letter stating the bus driver was not fit to
drive the bus, and demanded he be examined in four examinations: internal
medicine, ophthalmology, neurology, and psychiatry.

District Court, on basis of petition of tractor company, and w/o any hearing,
ordered P to submit to the tests, nine total, despite the fact that the petition
only requested four examinations. Petitioner applied for writ of mandamus,
seeking to have the order set aside. Court of Appeals denied mandamus. Granted
certiorari.

Petitioner's brief in response stated the bus driver's condition was not an issue
in controversy, and that the examinations proposed were without good cause.
Trailer company proceeded to file a similar answer to the tractor company's.

Issue: Under FRCP, may the trial court, on just the contentions of opposing
counsel, move under rule 35, to have petitioner submitted for physical and
psychological testing without asserting either contention in its complaint?

Holding: No. There was at no time any statement regarding the physical or mental
condition of P, and thus there is no cause for the District Court to impose the
medical testing on P. Vacated and remanded.

Reasoning: Driver did not assert that his mental or physical condition as a
defense or claim; his condition was sought by opposing parties. Rule 35 requires
that the party requesting a physical or mental examination has adequately
demonstrated that the condition on which the exam sought is in controversy and
that there is good cause for ordering each particular exam (must be decided
individually for each exam). The tractor company claimed that his eyes and vision
were impaired. Nothing in the pleadings or affidavits would warrant a basis for
believing driver was suffering from some illness which the exams were sought for,
and also there is nothing that justifies the broad internal medicine exam. The
only exam that would have been appropriate was an eye test. Therefore the "in
controversy" and "good cause" requirements of Rule 35 are not met.

RULE: A court order for mental or physical examinations under Rule 35 requires an
affirmative showing by the party requesting the order that each condition for
which an examination is sought is genuinely “in controversy,” and that “good
cause” exists for ordering each particular examination.

Concurring in part and Dissenting in part: (Black) From the facts, it is possible
that Pls mental or physical health affected his driving, and caused the accident.
He admitted seeing the tractor-trailer, but didn’t slow down, and he had been
involved in similar accident before. Also, he never denied charges on his mental
and physical health. Eyesight is an important factor in car accidents, so this
exam should be pursued at least to make sure it was not the cause of the accident.

Dissent: (Douglas) You could find an ailment in any driver. If you allow the
exams, there is a possibility of "fishing expeditions" where they will look for
anything and try to blame the accident on that ailment. This is likely to be
exploited.
Notes and Problems: [CB 437]
○ Rule 35 contains 2 requirements in addition to the general requirements of
Rule 26:
§ That the mental or physical condition be "in controversy"
§ That the party seeking such discovery show "good cause"
○ Pl used mandamus here to get to appellate court during discovery (very
rare, but possible with mandamus)
§ Its technically not an appeal, but an independent action against the
court or judge, alleging that the order is unlawful. The granting of such writs is
in the discretion of the appellate courts and they are rarely granted.

Class Notes

• Driver wasn’t even a party when he was ordered to undergo the examinations.
• Petitioner claims: it is unconstitutional, and a due process claim that it
invades privacy.
○ No due process violation b/c all privacy issues are taken care of in the
context of the rule. Congress had the power to create such a rule, and did it by
the Rules enabling act.
• In order for this to be in the power of supreme court, has to be procedural, not
substantive (cause then have to use state law)
○ Not designed to breach any particular outcome, but just to help with a
speedy dispute, so it is procedural
• So now question is: is the request that was made here meet the criteria of Rule
35?
• If info sought is in controversy, there still has to be good cause shown.
○ If one party is saying his eyesight is horrible, and he shouldn’t have
been driving w/o glasses, and other party says no, then this is in controversy
○ If he produces an eye test taken right be4 accident that shows his
eyesight is fine, then you would have to show that there is good reason to show he
needs to take another eye test - like saying the first report is a forgery.