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RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

July 25, 2011

RULE 35.01: ORDER FOR EXAMINATION.

When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all 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. [As amended July 1, 1979.]

RULE 35.02: REPORT OF EXAMINING PHYSICIAN.

(1) If requested by the party against whom an order is made under Rule 35.01 or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the suitably licensed or certified examiner setting out findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party cannot obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a suitably licensed or certified examiner fails or refuses to make a report the court may exclude testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine that party in respect of the same mental or physical condition.

(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of a suitably licensed or certified examiner or the taking of a deposition of the suitably licensed or certified examiner in accordance with the provisions of any other rule. [As amended July 1, 1979, and by order entered December 20, 1993, effective July 1, 1994.]

Advisory Commission Comments. This Rule permits a court to order the physical or mental examination of a party upon motion of another party when the condition is in controversy. A provision is made to permit the examined party to obtain a copy of the report; obtaining such a copy acts as a waiver of any privilege with respect to other examinations of the same party for the same condition.

Advisory Commission Comments [1994]. The amendment expands the group of professionals who can conduct examinations. Whether an examiner authorized under this rule may give testimony at a trial or proceeding is governed by the Tennessee Rules of Evidence.

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