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51. Is the judge likely to grant the valet's motion?
The valet asked the judge to order the bus driver to submit to a mental exam and supported her motion with documents reflecting the above information obtained from the valet's expert.
A valet sued a bus driver in the federal district court of State A. The valet alleged that the bus driver's negligent driving caused the valet injuries. The bus driver denied negligence. During discovery, the valet learned that in the past 10 years, the bus driver had been sued five times for negligent driving. All those suits, like this one, involved allegations that the bus driver had «rear-ended» another driver's car. All five plaintiffs had won verdicts. An expert hired by the valet told the valet that psychiatrists had recently identified a syndrome in which certain persons suffer an uncontrollable impulse to «bump» cars with their vehicle.
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D is correct. FRCP 35 states that the physical and mental examinations are only available through court order where a person's physical or mental condition is an issue in the case; it requires the requesting party to show that the opposing party's health or condition is in controversy.
Here, evidence of the bus driver's history of five similar «rear endings» and the discovery of this syndrome puts the bus driver's mental state into controversy, and there is good cause for the exam given the relevance of the evidence and the (apparent) absence of existing medical records on the matter of the bus driver's development of this recently identified syndrome.
A is incorrect. The bus driver's past incidents and, more particularly, whether the bus driver suffers from uncontrollable impulses to «bump» other cars with her vehicle, are relevant to whether she should be held liable to the valet. Further, this answer choice has evidence-based reasoning, but the court does not use evidence rules in deciding orders for physical or mental examinations. See FRCP 35.
B is incorrect. The FRCP do not state any requirement as to what party must put their physical or mental state into controversy. Here, it is not necessary that the bus driver has placed her mental state in controversy; another party can do that.
As an aside, some state court rules may impose different requirements as to when a party's physical or mental state is in fact «in controversy.»
C is incorrect. Whether a mental exam causes pain or suffering, although perhaps relevant to the court's order, is not dispositive under FRCP 35.