379 U.S. 104 (1964)
An action based on diversity of citizenship was brought in the District Court seeking damages arising from personal injuries suffered by passengers of a bus which collided with the rear of a tractor-trailer.1 The named defendants were The Greyhound Corporation, owner of the bus; petitioner, Robert L. Schlagenhauf, the bus driver; Contract Carriers, Inc., owner of the tractor; Joseph L. McCorkhill, driver of the tractor; and National Lead Company, owner of the trailer.2 Answers were filed by each of the defendants denying negligence.3
Greyhound then cross-claimed against Contract Carriers and National Lead for damage to Greyhound’s bus, alleging that the collision was due solely to their negligence in that the tractor-trailer was driven at an unreasonably low speed, had not remained in its lane, and was not equipped with proper rear lights.4 Contract Carriers filed an answer to this cross-claim denying its negligence and asserting that the negligence of the driver of the bus proximately caused and contributed to Greyhound’s damages.5 Pursuant to a pretrial order, Contract Carriers filed a letter alleging that Schlagenhauf was not mentally or physically capable of driving a bus at the time of the accident.6
National Lead filed its answer to Greyhound’s cross-claim and itself cross-claimed against Greyhound and Schlagenhauf for damage to its trailer.7 The cross-claim additionally alleged that Greyhound and Schlagenhauf were negligent by permitting the bus to be operated by Schlagenhauf when both knew that his eyes and vision were impaired and deficient.8 Contract Carriers and National Lead then petitioned the District Court for an order directing Schlagenhauf to submit to mental and physical examinations by specialists in internal medicine, ophthalmology, neurology, and psychiatry.9 The petition was supported by an affidavit stating that Schlagenhauf had seen red lights 10 to 15 seconds before the accident, that another witness had seen the rear lights of the trailer from a distance of three-quarters to one-half mile, and that Schlagenhauf had been involved in a prior accident.10
Petitioner’s attorneys filed a brief in opposition asserting that the physical and mental condition of Schlagenhauf was not in controversy and that good cause had not been shown.11 The District Court ordered Schlagenhauf to submit to nine examinations by the recommended specialists.12 Petitioner applied for a writ of mandamus in the Court of Appeals seeking to have the order set aside.13 The Court of Appeals denied mandamus.14 The Supreme Court granted certiorari to review questions concerning the validity and construction of Rule 35.15
Whether Rule 35(a) of the Federal Rules of Civil Procedure authorizes a district court to order a defendant in a negligence action to submit to mental and physical examinations?16
Yes. The plain language of Rule 35(a) refers to a party without limiting the term to plaintiffs.19 In the established facts an action based on diversity of citizenship was brought naming Robert L. Schlagenhauf as the bus driver defendant alongside Greyhound, Contract Carriers, McCorkhill, and National Lead, with each filing answers denying negligence.20
Greyhound cross-claimed against Contract Carriers and National Lead, who in turn asserted claims implicating Schlagenhauf and petitioned for his examinations.21 The Court determined that Rule 35 permits examination of a party defendant upon petition of codefendants provided the other requirements of the rule are met, rejecting any constitutional or substantive-rights challenge under the Rules Enabling Act.22
Rule 35(a) authorizes a district court to order mental and physical examinations of a defendant in an appropriate case.23
Whether a writ of mandamus is an appropriate remedy to review a district court order directing mental and physical examinations of a defendant under Rule 35(a)?24
Mandamus is available to confine an inferior court to a lawful exercise of its jurisdiction or to correct a usurpation of judicial power or clear abuse of discretion.25 The writ is not a substitute for appeal even though hardship may result from delay. The writ may issue when the challenged order presents an issue of first impression concerning the power of the district court under a Federal Rule of Civil Procedure.26
Yes. Petitioner's basic allegation was lack of power in a district court to order mental and physical examination of a defendant.27 This issue was one of first impression with no prior reported federal decisions ordering examination of a defendant under Rule 35.28 In the established facts the district court ordered Schlagenhauf to submit to nine examinations without a hearing on the basis of the petition by Contract Carriers and National Lead.29
The court of appeals denied mandamus while recognizing its power to review the basic question.30 Under these unusual circumstances the court of appeals had power to determine the issues presented by the petition for mandamus.31 The Supreme Court proceeded to the merits to formulate guidelines rather than remanding for piecemeal litigation.32
A writ of mandamus is an appropriate remedy in these special circumstances to review the district court order.33
Related opinions on this issue
Justice Harlan dissented from the holding that mandamus lies.34 He reasoned that once a court of appeals determines the district court possessed power to act, an extraordinary writ should be denied.35 The remaining questions concerning in controversy and good cause are not otherwise examinable on mandamus.36
He viewed the majority's approach as making a deep inroad into the federal policy of appellate review only of final judgments.37 He warned that the decision could open the door to use of extraordinary writs to test any question of first impression if framed as a lack of power.38
Whether a defendant remains a party subject to examination under Rule 35(a) when the movants are codefendants who have filed cross-claims?39
Rule 35 requires only that the person to be examined be a party to the action, not that the movant be an opposing party vis-a-vis the person examined.40 Insistence that the movant have filed a pleading against the person to be examined would produce unnecessary proliferation of cross-claims and counterclaims contrary to the liberal application of the Federal Rules.41
Yes. Schlagenhauf was a party to the action by virtue of the original complaint filed by the injured passengers.42 In the established facts Contract Carriers and National Lead, as codefendants, petitioned for the examinations after filing answers and cross-claims that placed Schlagenhauf's condition at issue.43 The court of appeals correctly determined that Schlagenhauf had become a party vis-a-vis National Lead by the time of the second order.44
The Supreme Court agreed that Rule 35 permitted examination of him upon petition of codefendants provided the remaining requirements were satisfied.45
A defendant remains a party subject to examination under Rule 35(a) when the movants are codefendants.46
Whether a defendant's mental or physical condition is placed in controversy under Rule 35(a) by allegations in codefendants' cross-claims and an attorney's affidavit describing the accident circumstances?47
The requirements of in controversy and good cause are not met by mere conclusory allegations of the pleadings or by mere relevance to the case.48 The movant must make an affirmative showing that the condition as to which examination is sought is really and genuinely in controversy.49 Situations where pleadings alone suffice include a plaintiff asserting injury or a defendant asserting his own condition as a defense.50 Different standards apply when other parties seek to place the condition in issue.51
No. The only allegations relating to Schlagenhauf's condition were the general conclusory statement in Contract Carriers' answer that he was not mentally or physically capable of operating the bus.52 The limited allegation in National Lead's cross-claim stated that his eyes and vision were impaired and deficient.53 In the established facts the supporting affidavit recited that Schlagenhauf saw red lights 10 to 15 seconds before impact.54 A witness saw the lights from three-quarters to one-half mile away.55
Schlagenhauf had been involved in a prior similar accident.56 Nothing in the pleadings or affidavit afforded a basis for believing he suffered from mental or neurological illness warranting psychiatric or neurological examinations.57 Nothing justified a broad internal medicine examination.58 The record therefore could not support the order even as corrected to four examinations.59
A defendant's mental or physical condition is not placed in controversy under Rule 35(a) by such allegations and affidavit.60
Related opinions on this issue
Justice Black concurred in part and dissented in part.61 He agreed that the order was broader than required.62 He maintained that the record plainly showed a controversy as to Schlagenhauf's mental and physical health.63
Good cause was shown for a physical and mental examination.64 The other parties specifically charged that Schlagenhauf was not mentally or physically capable.65 This was supported by the affidavit based on depositions.66
The affidavit described the visible red lights.67 Schlagenhauf failed to slow or alter course for ten to fifteen seconds.68 He had a prior accident.69
Schlagenhauf never denied the charges about his health and vision.70
Whether good cause for ordering multiple medical examinations of a defendant under Rule 35(a) is shown by general allegations of negligence together with an affidavit referencing a prior similar accident?71
Good cause is a plainly expressed limitation requiring greater showing of need than under other discovery rules.72 The movant must produce sufficient information so the district judge can decide whether each particular examination is warranted.73 The ability to obtain the information by other means is relevant.74 Sweeping examinations are not to be automatically ordered merely because a person has been involved in an accident and a general charge of negligence is lodged.75
No. The district court ordered examinations in internal medicine, ophthalmology, neurology, and psychiatry without any hearing.76 The order rested on the basis of conclusory pleadings and the attorney's affidavit.77 In the established facts nothing supported a belief that Schlagenhauf suffered from mental or neurological illness.78 Nothing justified the broad internal medicine examination.79
The only specific allegation concerned eyes and vision.80 The Court indicated this might support a visual examination if standing alone.81 The order required reconsideration on remand under the guidelines.82 The plain language of Rule 35 precludes routine ordering of such examinations in automobile accident cases.83
Good cause for ordering multiple medical examinations is not shown by such allegations and affidavit.84
Related opinions on this issue
Justice Douglas dissented in part and would have denied all relief under Rule 35 on remand.85 He reasoned that a defendant's physical and mental condition is not immediately and directly in controversy in a negligence suit.86 The issue is whether he was negligent.87
Turning defendants over to medical or psychiatric clinics for analysis would allow fishing expeditions.88 The effective trial would be held in the clinic rather than before the jury.89 Grave risks of blackmail would arise without the safeguards of lawyers and a judge.90
He urged referral to the Civil Rules Committee to draw precise standards before applying the rule to defendants.91