South Carolina Rules of Civil Procedure Rule 35 (the rules that govern civil litigation in South Carolina courts) gives a court the authority to order a party to submit to a mental or physical exam when the mental or physical condition is in controversy. “Good cause” must be shown by the moving party, and the total amount in controversy must exceed $100,000.
The Fall 2009 issue of The Justice Bulletin published an article about Rule 35 independent mental examinations that discussed the issue of bias in such examinations and the protections against such bias. James L. Ward, Jr. and Catherine H. McElveen, Rule 35: Independent Mental Examinations — How Recordation of Independent Mental Examinations Can Ensure Impartiality in the Examination Room Interview, The Justice Bulletin, p. 24, Fall 2009.As with any expert witness testimony, the resulting testimony of a Rule 35 mental or medical examination may be attacked from a number of angles for bias (due to the expert being a “hired gun”). However, Rule 35 exams are also susceptible to claims of bias because they do not provide the same protections for the examinee that a deposition would afford. For example, with a Rule 35 exam, there is no requirement that the examinee be represented or that the exam be recorded in any way.
This absence of representation can lead to the exam becoming a de facto deposition, after which the expert’s report is the only record upon which counsel may rely. However, this can be combated in three ways:
- Requesting the presence of counsel
- Requesting the presence of a third party representative
- Requesting the use of audio or video recordation.
The presence of counsel, a third party representative, or recording device, however, can turn what is supposed to be an independent and scientific exam into an adversarial contest.
All things being considered, it is most likely that a court would grant a request for the presence of an audio or video recording device in a Rule 35 exam, as it is the least obtrusive means to provide some safeguard to the examinee while still maintaining as much of the one-on-one comfort level associated with a private examination and discussion as possible.
The information relayed in this blog is for educational purposes only and is not legal advice. The cases referenced and explained by the blog’s author(s) are for informational purposes only and are not intended to imply that certain, or similar, results may be achieved in each client’s case.