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PA Bulletin, Doc. No. 97-440

THE COURTS

[231 PA. CODE CH. 4000]

Proposed Amendments Relating to Physical and Mental Examination of Persons and Evaluation of Earning Capacity; Recommendation No. 143

[27 Pa.B. 1443]

   The Civil Procedural Rules Committee proposes to recommend the amendment of Rule of Civil Procedure 4010 governing the physical and mental examination of persons and the addition of new Rule 4010.1 governing the evaluation of earning capacity. The Committee is publishing the proposed recommendation to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than May 16, 1997 to:  Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055, or E-Mail to hdon@courts. state.pa.us.

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 4000.  DEPOSITIONS AND DISCOVERY

Rule 4010.  Physical and Mental Examination of Persons.

   (a)(1)  As used in this rule, ''examiner'' means a physician or psychologist.

   (2)  When the mental or physical condition (including blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by [a physician] an examiner or to produce for examination the person in [his] the party's custody or legal control.

   (3)  The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all 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.

   (4)  The person to be examined shall have the right to have counsel or other representative present during the examination. The examiner's oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination. Counsel or another representative present should not participate in or interfere with the examination except to object to the scope of the questions of the examiner.

   Official Note:  Ordinarily, the facts giving rise to liability are not germane to an examination and the information which the examiner seeks should be limited to facts of liability germane to the issue of damages.

   (5)  The party who is being examined or who is producing for examination a person in the party's custody or legal control may have made at the party's expense a stenographic or audio recording of the examination. Upon request and payment of reasonable cost, the party who caused the recording to be made shall provide each other party with a copy of the recording.

   (b)(1)  If requested by the party against whom an order is made under this rule or the person examined, the party causing the examination to be made shall deliver to [him] the party or person examined a copy of a detailed written report of the [examining physician] examiner setting out [his] the examiner's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows [that he is unable] inability to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if [a physician] an examiner fails or refuses to make a report the court shall exclude [his] the examiner's testimony if offered at the trial.

   (2)  By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege [he] the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine [him] the party in respect of the same mental or physical condition.

   (3)  Subdivision (b) applies to an examination made by agreement of the parties, unless the agreement expressly provides otherwise. It does not preclude discovery of a report of an examining physician or the taking of a deposition of the [physician] examiner in accordance with the provisions of any other rule.

Rule 4010.1.  Evaluation of Earning Capacity.

   (a)  When the earning capacity of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an evaluation by a suitably licensed or certified evaluation or to produce for evaluation the person in the party's custody or legal control.

   (b)  The evaluation shall be conducted in the manner prescribed by Rule 4010(a)(3) through (b)(3) inclusive.

   (c)  The evaluator may testify as a witness on the issue of damages only and not as a witness on the issue of liability.

Explanatory Comment

Rule 4010.  Physical and Mental Examination of Persons

   Rule 4010 is revised in three respects.

   1.  Examiner

   Rule 4010 presently provides that only a physician may perform physical and mental examinations of persons. However, it has been suggested to the Civil Procedural Rules Committee that the provision is too narrow and that the category of persons authorized to perform examinations should be expanded.

   The present amendment revises the rule to refer to an ''examiner.'' An examiner is defined as ''a physician or psychologist.''

   2.  Examination

   The present rule gives no guidance with respect to the conduct of the examination. New subdivision (a)(4) adds certain protections for the person being examined. These protections include the right to have counsel or another representative present at the examination and a limitation upon the examiner's interrogation of the person to be examined. The examiner is given appropriate latitude to conduct the examination as the rule directs that the attorney or other representative present ''should not participate in or interfere with the examination except to object to the scope of the questions of the examiner.''

   New subdivision (a)(5) gives the party who is being examined or who is producing a person to be examined the right to make a stenographic or audio recording of the examination.

   3.  Gender Neutral

   Additional revisions to the language make Rule 4010 gender neutral. However, these revisions do not affect practice and procedure.

Rule 4010.1.  Evaluation of Earning Capacity

   Rule 4010 is entitled ''Physical and Mental Examination of Persons.'' Subdivision (a) provides that the rule may be invoked when ''the mental or physical condition (including blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy.''

   In many cases, however, there may be no dispute as to physical or mental condition, but, given that condition, there is a dispute as to the ability of the party or person under the party's control to function in an employment setting. One party may seek an ''evaluation'' to gauge the effect of the condition upon another party's work-life or ''evaluate'' the other party's ability to be gainfully employed. Proposed Rule 4010.1 provides for such an evaluation ''by a suitably licensed or certified evaluator.''

   The procedure governing the evaluation is the same as that governing physical and mental examinations since the procedure of Rule 4010 is incorporated by reference. However, subdivision (c) accords the party to be evaluated one additional protection:  the evaluator ''may testify as a witness on the issue of damages only and not as a witness on the issue of liability.''

By the Civil Procedural Rules Committee

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 97-440. Filed for public inspection March 21, 1997, 9:00 a.m.]


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