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Arizona Court of Appeals Clarifies Limitations of Rule 35 Physical and Mental Examinations

Author: Leah McKeever

Guest Editor: David Kahn

October 5, 2020 1:18pm

In Clayton v. Kenworthy, the Arizona Court of Appeals held the superior court abused its discretion by completely prohibiting the recording of a Rule 35(c)(2)(A), Arizona Rules of Civil Procedure, independent neuropsychological examination.[1]

Kacen Clayton is a six-year-old who, through his mother, Megan Sherman, sued his doctors for medical malpractice alleging negligent delivery causing disabilities. Defendants requested a Rule 35 neuropsychological examination to determine his current and future cognitive abilities. The plaintiff’s mother would not permit the examination unless the examination was recorded or she was permitted to observe through one-way glass.

Defendants objected with a declaration by the neuropsychologist asserting the presence of a third party will negatively affect the scientific integrity of the examination. The superior court agreed. The superior court denied the mother’s request finding her presence or a video recording of the examination would “adversely affect the examination” and for that reason Rule 35(c)(2)(A) provides the court with discretion to prohibit the recording entirely. Clayton, through his mother, challenged the decision.

Clayton’s mother asserted the superior court abused its discretion by completely prohibiting the recording of the examination. The Appellate Court agreed. Rule 35(a)(1), Arizona Rules of Civil Procedure, upon motion for good cause, permits the court to order a physical or mental examination of a party “whose physical or mental condition is in controversy.” Rule 35(c)(1) allows the person being examined to have a representative present unless the presence of the individuals may adversely impact the outcome of the examination. Further, Rule 35(c)(2)(A) gives any party the right to record the examination unless a party shows the recording may adversely impact the outcome and providing the court with discretion to limit the recording.

The Court held Rule 35(c)(2)(A) unambiguously creates a right to record the examination and affords the superior court with discretion to limit the recording, but not prohibit it. Further stating, if it was the drafters intent to permit the complete prohibition of recording an examination, then the rule would have expressly said so.

It is unclear whether a party will be able to challenge the credibility of adverse findings of an examination via a motion in limine or on cross examination based upon the examiner’s declaration or affidavit the recording impaired the reliability of the exam.

 

[1] Clayton by & through Sherman v. Kenworthy, 1 CA-SA 20-0086, 2020 WL 5525155 (App. Sept. 15, 2020).

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