A plaintiff who brings suit may be subject to a physical or mental examination ordered by the court if the plaintiff’s physical or mental condition is at issue in the case, pursuant to Arizona Rule of Civil Procedure Rule 35. These examinations often occur if there is an unresolved injury, i.e., loss of movement or a traumatic brain injury.
In these examinations, an expert hired by the defendant’s insurance company will examine the plaintiff. Rule 35 permits attendance by a representative of the plaintiff unless attendance would compromise the exam. The examination may be recorded by the least intrusive means possible.
Recently, Division One of the Arizona Court of Appeals upheld a plaintiff’s right to record the examination in Clayton v. Hon. Kenworthy, No. 1 CA-SA 20-0086. When overturning a lower court where the defendant requested a medical examination of a six year old. The six-year-old’s mother wished to be present, and the court denied her request. The six-year-old’s mother wished to record the examination, and the Court denied that request as well. The Court of Appeals reversed the lower court stating that while the lower court could limit the mother’s attendance, the examination must be recorded using the least restrictive method available.
This is an important vindication for plaintiff’s right to be able to preserve evidence.
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