Kelly v. Goings – 4/27/2023

May 23, 2023

Arizona Court of Appeals, Division One, holds that the subject of a court-ordered physical or mental examination may request reports from the examining provider only as to the individual examined.

Plaintiff sued Defendant following an automobile collision.  Defendant requested an order that Plaintiff submit to an independent medical examination under Arizona Rule of Civil Procedure 35(a)(1).  Plaintiff requested “reports of all earlier examinations of the same condition” under Rule 35(d)(2)(B).  The parties adopted differing interpretations of 35(d)(2)(B).  Plaintiff argued it required the production of “like reports” of the same condition about any individual the physician conducting the examination had prepared.  Defendant argued the rule was limited to reports about the examinee.  The superior court agreed with Plaintiff.  Defendant petitioned for special action relief.

The Court of Appeals accepted jurisdiction and granted relief.

The court found the text of Rule 35(d)(2)(B) ambiguous.  Relying upon noscitur a sociis, it looked to the surrounding language in 35(d)(2)(B) and found it limited to information about the examinee.  The court also considered similar text in Rule 35(d)(3), which referred to the examinee. 

The court also relied upon Advisory Committee Notes to the corresponding federal rule, Fed. R. Civ. P. 35(b)(1), explaining that the phrase was intended to correct an imbalance that existed in favor of those requesting examinations.  The court found that Plaintiff’s interpretation corrected the imbalance too far in favor of the examinee.

The court therefore held that “like reports of all earlier examination of the same condition” referred to earlier examinations of the examinee.

Judge Catlett authored the opinion, in which Judges McMurdie and Brown joined.

Posted by: Garo Moughalian