379 U.S. 104 (1964), 8, Schlagenhauf v. Holder

Docket Nº:No. 8
Citation:379 U.S. 104, 85 S.Ct. 2343
Party Name:Schlagenhauf v. Holder
Case Date:November 23, 1964
Court:United States Supreme Court

Page 104

379 U.S. 104 (1964)

85 S.Ct. 2343




No. 8

United States Supreme Court

Nov. 23, 1964

Argued October 13, 1964




A bus collided with the rear of a tractor-trailer, and a diversity action for damages was brought by certain bus passengers in the District Court. The defendants -- the bus company, petitioner its driver, the owners of the tractor and the trailer (hereinafter codefendants), and the tractor driver -- filed answers denying negligence. The bus company cross-claimed against codefendants for damage to its bus, claiming that the collision resulted from their negligence. Co-defendant tractor owner answered the cross-claim, denied negligence, and alleged that petitioner was "not mentally or physically capable" of driving a bus at the time of the accident and that his negligence proximately caused damage to the bus. Codefendants petitioned the District Court for an order that petitioner submit to multiple mental and physical examinations under Rule 35(a) of the Federal Rules of Civil Procedure. That Rule provides for an order for examination on motion "for good cause shown" in an action where the mental or physical condition of a party is "in controversy." Codefendant trailer owner answered the bus company's cross-claim and itself cross-claimed against the bus company and petitioner for damage to its trailer, alleging negligence by the bus company and petitioner through the latter's having been permitted to drive the bus despite a known visual deficiency. Respondent District Court Judge, over petitioner's opposition, granted an order for internal medicine, ophthalmological, neurological, and psychiatric examinations of petitioner under Rule 35(a). To set aside that order, petitioner applied for mandamus against respondent in the Court of Appeals, which that court denied.


1. Under the circumstances of this case, mandamus was an appropriate remedy to review the challenged power of the District Court to order the mental and physical examinations of a defendant. Pp. 109-112.

(a) Though not a substitute for appeal, mandamus is an appropriate remedy for usurpation of power, a substantial issue in

Page 105

this case, involving as it did the first challenge to a district court's power under Rule 35(a) to require examination of a defendant. P. 110.

(b) Whether the District Court exceeded its power by holding that petitioner's mental and physical condition was "in controversy" within the meaning of Rule 35(a) was properly before the Court of Appeals. P. 111.

(c) The Court of Appeals did not resolve the related question whether "good cause" was shown for ordering the examinations, though it should have done so, since the allegation of usurpation of power was before it, and to do so would avoid piecemeal litigation and settle new and important problems. P. 111.

(d) Since the issues presented here concern construction of the Federal Rules of Civil Procedure, which it is the duty of this Court to formulate and put in force, this Court will consider the merits of such issues and formulate necessary guidelines, rather than remand the cause to the Court of Appeals to reconsider the issue of "good cause." Pp. 111-112.

2. Rule 35(a) applies to the physical or mental examination of defendants, as well as plaintiffs, and, as so applied, is constitutional, and authorized by the Rules Enabling Act. Pp. 112-114.

3. Though the person to be examined under Rule 35(a) must be a "party" to the action, he need not be an opposing party vis-a-vis the movant. Pp. 115-116.

4. The necessarily related requirements of Rule 35 that the mental or physical condition of the party sought to be examined be "in controversy" and that "good cause" be shown for the examination are not met by mere conclusory allegations of the pleadings -- nor by mere relevance to the case. P. 118.

5. Rule 35 requires discriminating application by the trial judge, who must decide, as an initial matter in each case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule's necessarily related requirements of "in controversy" and "good cause." Pp. 118-119.

6. A movant under Rule 35 for a mental or physical examination of a party who has not asserted his mental or physical condition either in support of or in defense of a claim must, by appropriate means, affirmatively show that the condition sought to be examined is really and genuinely in controversy, and that good cause exists for the particular examination requested. Pp. 119-120.

Page 106

7. A sufficient showing was not made in this case to support any except perhaps a visual examination of petitioner, and the District Court should reconsider its order, including that for the eye examination, in the light of the guidelines set forth herein. Pp. 120-121.

321 F.2d 43 vacated and remanded.

GOLDBERG, J., lead opinion

MR. JUSTICE GOLDBERG, delivered the opinion of the Court.

This case involves the validity and construction of Rule 35(a) of the Federal Rules of Civil Procedure as applied to the examination of a defendant in a negligence action. Rule 35(a) provides:

Physical and Mental Examination of Persons.

(a) Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other 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.


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. The named defendants were The Greyhound Corporation, owner of

Page 107

the bus; petitioner, Robert L. Schlagenhauf, the bus driver; Contract Carriers, Inc., owner of the tractor; Joseph L. McCorkhill, driver of the tractor;1 and National Lead Company, owner of the trailer. Answers were filed by each of the defendants denying negligence.

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. Contract Carriers filed an answer to this cross-claim denying its negligence and asserting

[t]hat the negligence of the driver of the . . . bus [petitioner Schlagenhauf] proximately caused and contributed to . . . Greyhound's damages.

Pursuant to a pretrial order, Contract Carriers filed a letter -- which the trial court treated as, and we consider to be, part of the answer -- alleging that Schlagenhauf was "not mentally or physically capable" of driving a bus at the time of the accident.

Contract Carriers and National Lead then petitioned the District Court for an order directing petitioner Schlagenhauf to submit to both mental and physical examinations by one specialist in each of the following fields:

(1) Internal medicine;

(2) Ophthalmology;

(3) Neurology; and

(4) Psychiatry.

For the purpose of offering a choice to the District Court of one specialist in each field, the petition recommended two specialists in internal medicine, ophthalmology, and psychiatry, respectively, and three specialists in neurology -- a total of nine physicians. The petition alleged

Page 108

that the mental and physical condition of Schlagenhauf was "in controversy," as it had been raised by Contract Carriers' answer to Greyhound's cross-claim. This was supported by a brief of legal authorities and an affidavit of Contract Carriers' attorney 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.

The certified record indicates that petitioner's attorneys filed in the District Court a brief in opposition to this petition asserting, among other things, that

the physical and mental condition of the defendant Robert L. Schlagenhauf is not "in controversy" herein in the sense that these words are used in Rule 35 of the Federal Rules of Civil Procedure, [and] that good cause has not been shown for the multiple examinations prayed for by the cross-defendant. . . .2

While disposition of this petition was pending, National Lead filed its answer to Greyhound's cross-claim, and itself "cross-claimed" against Greyhound and Schlagenhauf for damage to its trailer. The answer asserted generally that Schlagenhauf's negligence proximately caused the accident. The cross-claim additionally alleged that Greyhound and Schlagenhauf were negligent

[b]y permitting said bus to be operated over and upon said public highway by the said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagenhauf knew that the eyes and vision of the said Robert L. Schlagenhauf was [sic] impaired and deficient.

The District Court, on the basis of the petition filed by Contract Carriers, and, without any hearing, ordered

Page 109

Schlagenhauf to submit to nine examinations -- one by each of the recommended specialists -- despite the fact that the petition clearly requested a total of only four examinations.3

Petitioner applied for a writ of mandamus in the Court of Appeals against the respondent, the District Court Judge, seeking to have set aside the order requiring his mental and physical examinations. The Court of Appeals...

To continue reading