Consider Removal to take advantage of Rule 35 under the Federal Rules of Civil Procedure.

A psychological exam can be a valuable tool to defend against an emotional distress claim arising out of an underlying tort, and a vocational-rehabilitation exam can be instrumental in defending against a large lost earning capacity claim.  But the plain language of Rule 35 of the North Carolina Rules of Civil Procedure can make short work of defendant’s motion to compel either type of exam.  Under the North Carolina Rule, a Judge may only compel an examination done by a physician.

     Rule 35: North Carolina vs. Federal

While North Carolina’s Rule 35 used to track the Federal Rule, North Carolina hasn’t amended its Rule since 1975.  As a result, North Carolina is one of the few states that have not incorporated the sweeping amendments to Rule 35 of the Federal Rules of Civil Procedure.  Under the Federal Rule, a Judge may order a party to submit to a physical or mental examination by a suitably licensed or certified examiner.  According to the advisory committee, this list of persons includes “other certified licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute.”

North Carolina’s Appellate Courts have only addressed the Rule 35 examiner limitation in dicta.  In State v. Jordan, 228 N.C. App. 361, 748 S.E.2d 775 (2013), defendant argued that the trial Court’s order to undergo an examination had no legal effect because the order had not asserted that the examiner was a “physician.”  The court cursorily noted that the examiner must be a physician, “as required pursuant to N.C.G.S. § 1A-1, Rule 35,” but declined to consider whether the trial court’s order need specify that the examiner was indeed a physician.

      Leveraging the Federal Rules to Compel a Psychological or Voc-Rehab Exam

Non-physician exams can inform the defense, contradict plaintiff’s evidence or bolster a testifying expert’s credibility in light of having personally examined plaintiff.  If you are able to anticipate value in a psychological exam or foresee substantial exposure from a lost earnings claim, consider removing the action to federal district court to take advantage of Rule 35 under the Federal Rules of Civil Procedure, which permits examinations by a non-physician, such as a psychologist and or voc-rehab specialist.

Before moving to compel a Rule 35 examination, however, there are strategy issues to consider. The defendant must ensure that the examiner has reviewed the file and reached a conclusion that the examination is likely to supplement.  Rule 35 treats the examiner akin to a testifying expert, requiring the moving party to produce the examiner’s report upon request.  Therefore, having the plaintiff examined under this Rule should only be done if there is a reasonable likelihood that the exam will produce a result favorable to the defense.