Civ Pro Question Forum

[Eco]

Hey, just a quick question--under Rule 35 physical and mental examinations, if one party wants to obtain physical/mental examinations of someone who is NOT a party to the suit--(1) can they do that and (2) if they can, do they need a Rule 45 subpoena?

assume the "in controversy" + "good cause" requirements are met.

Thanks!

[lawschoolftw]

Nope. Can never get a medical exam from someone not a party (unless its the party's kid).

[Eco]

I thought so. What about in a situation where the entire case depends on third party's condition?

HYPO: Woman contracted aids from blood transfusion. She needs to get a medical examination of the person whose blood she received to determine if he had HIV. She's suing the Red Cross, not that person. Can she get a medical examination of that person?

[lawschoolftw]

Nope, as far as I know you're stuck with whatever evidence you have.

[Eco]

A friend of mine said you can get a medical examination with a Rule 45 subpoena. I'm leaning more on your side because I haven't seen anything in either Rule 45 or Rule 35 that says that, but anyone else want to jump in as well?

[YourCaptain]

35 is only parties and pretty explicit about it; allows examinations of employees of companies if "legal control/custody" (which our class was informed was an incredibly high bar). I would suppose that the rigidity of 35 on this question would preclude usage of 45; otherwise it'd be too easy to get around.

[sarryn]

I don't think it allows the examination of non-parties. However, in such a case, you could either get the non-party's deposition, which you can use a subpoena for (meaning, you can subpoena the person and then ask them whether or not they have HIV/AIDS). You could also request an affidavit.

[lawschoolftw]

Just a random thought, the reason its only parties is that it has some major due process implications. If my recollection is correct SCOTUS came real close to striking it down as unconstitutional.