SCHLAGENHAUF v. HOLDER, U. S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA
No. 8
Supreme Court of the United States
Argued October 13, 1964.—Decided November 23, 1964
379 U.S. 104
Erle A. Kightlinger argued the cause for respondent. With him on the brief were Aribert L. Young and Keith C. Reese.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This case involves the validity and construction of
“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.”
I.
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
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:
- Internal medicine;
- Ophthalmology;
- Neurology; and
- 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
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
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
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 denied mandamus, one judge dissenting, 321 F. 2d 43.
We granted certiorari to review undecided questions concerning the validity and construction of
II.
A threshold problem arises due to the fact that this case was in the Court of Appeals on a petition for a writ of mandamus. Although it is not disputed that we have jurisdiction to review the judgment of the Court of Appeals,
“The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts4 has been to confine an inferior court to a lawful
It is, of course, well settled, that the writ is not to be used as a substitute for appeal, Ex parte Fahey, 332 U. S. 258, 259-260, even though hardship may result from delay and perhaps unnecessary trial, Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 382-383; United States Alkali Export Assn. v. United States, 325 U. S. 196, 202-203; Roche v. Evaporated Milk Assn., supra, at 31. The writ is appropriately issued, however, when there is “usurpation of judicial power” or a clear abuse of discretion, Bankers Life & Casualty Co. v. Holland, supra, at 383.
Here petitioner‘s basic allegation was lack of power in a district court to order a mental and physical examination of a defendant. That this issue was substantial is underscored by the fact that the challenged order requiring examination of a defendant appears to be the first of its kind in any reported decision in the federal courts under
The petitioner, however, also alleged that, even if
We recognize that in the ordinary situation where the sole issue presented is the district court‘s determination that “good cause” has been shown for an examination, mandamus is not an appropriate remedy, absent, of course, a clear abuse of discretion. See Bankers Life & Casualty Co. v. Holland, supra, at 383. Here, however, the petition was properly before the court on a substantial allegation of usurpation of power in ordering any examination of a defendant, an issue of first impression that called for the construction and application of
Thus we believe that the Court of Appeals had power to determine all of the issues presented by the petition for mandamus.8 Normally, wise judicial administration
“[W]e think it clear that where the subject concerns the enforcement of the . . . Rules which by law it is the duty of this Court to formulate and put in force . . . it may . . . deal directly with the District Court . . . .”
See McCullough v. Cosgrave, 309 U. S. 634.
This is not to say, however, that, following the setting of guidelines in this opinion, any future allegation that the District Court was in error in applying these guidelines to a particular case makes mandamus an appropriate remedy. The writ of mandamus is not to be used when “the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.” Parr v. United States, 351 U. S. 513, 520; see Bankers Life & Casualty Co. v. Holland, supra, at 382.
III.
These same contentions were raised in Sibbach v. Wilson & Co., 312 U. S. 1, by a plaintiff in a negligence action who asserted a physical injury as a basis for recovery. The Court, by a closely divided vote, sustained the Rule as there applied. Both the majority and dissenting opinions, however, agreed that
We recognize that, insofar as reported cases show, this type of discovery in federal courts has been applied solely to plaintiffs, and that some early state cases seem to have proceeded on a theory that a plaintiff who seeks redress for injuries in a court of law thereby “waives” his right to claim the inviolability of his person.10
However, it is clear that Sibbach was not decided on any “waiver” theory. As Mr. Justice Roberts, for the majority, stated, one of the rights of a person “is the right not to be injured in one‘s person by another‘s negligence,
These statements demonstrate the invalidity of any waiver theory. The chain of events leading to an ultimate determination on the merits begins with the injury of the plaintiff, an involuntary act on his part. Seeking court redress is just one step in this chain. If the plaintiff is prevented or deterred from this redress, the loss is thereby forced on him to the same extent as if the defendant were prevented or deterred from defending against the action.
Moreover, the rationalization of Sibbach on a waiver theory would mean that a plaintiff has waived a right by exercising his right of access to the federal courts. Such a result might create constitutional problems. Also, if a waiver theory is espoused, problems would arise as to a plaintiff who originally brought his action in a state court (where there was no equivalent of
We hold that
IV.
There remains the issue of the construction of
Petitioner contends that even if
While the Court of Appeals held that petitioner was not a party vis-à-vis National Lead or Contract Carriers at the time the examinations were first sought, it went on to hold that he had become a party vis-à-vis National Lead by the time of a second order entered by the District Court and thus was a party within its rule. This second order, identical in all material respects with the first, was entered on the basis of supplementary petitions filed by National Lead and Contract Carriers. These petitions gave no new basis for the examinations, except for the allegation that petitioner‘s mental and physical condition had been additionally put in controversy by the National Lead answer and cross-claim, which had been filed subsequent to the first petition for examinations. Although the filing of the petition for mandamus intervened between these two orders, we accept, for purposes of this opinion, the determination of the Court of Appeals that this second order was the one before it13 and agree that petitioner was clearly a party at this juncture under any test.
Petitioner next contends that his mental or physical condition was not “in controversy” and “good cause” was not shown for the examinations, both as required by the express terms of
It is notable, however, that in none of the other discovery provisions is there a restriction that the matter be “in controversy;” and only in
This additional requirement of “good cause” was reviewed by Chief Judge Sobeloff in Guilford National Bank v. Southern R. Co., 297 F. 2d 921, 924 (C. A. 4th Cir.), in the following words:
“Subject to . . . [the restrictions of
Rules 26 (b) and30 (b) and (d)], a party may take depositions and serve interrogatories without prior sanction of the court or even its knowledge of what the party is doing. Only if a deponent refuses to answer in the belief that the question is irrelevant, can the moving party request underRule 37 a court order requiring an answer.“Significantly, this freedom of action, afforded a party who resorts to depositions and interrogatories, is not granted to one proceeding under
Rules 34 and35 . Instead, the court must decide as an initial matter, and in every case, whether the motion requestingproduction of documents or the making of a physical or mental examination adequately demonstrates good cause. The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26 (b) . Thus, by adding the words ‘. . . good cause . . . ,’ the Rules indicate that there must be greater showing of need underRules 34 and35 than under the other discovery rules.”
The courts of appeals in other cases14 have also recognized that
Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury, cf. Sibbach v. Wilson & Co., supra, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. This is not only true as to a plaintiff, but applies equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for example, where insanity is asserted as a defense to a divorce action. See Richardson v. Richardson, 124 Colo. 240, 236 P. 2d 121. See also Roberts v. Roberts, 198 Md. 299, 82 A. 2d 120; Discovery as to Mental Condition Before Trial, 18 J. Am. Jud. Soc. 47 (1934).
Here, however, Schlagenhauf did not assert his mental or physical condition either in support of or in defense of a claim. His condition was sought to be placed in issue by other parties. Thus, under the principles discussed above,
The only allegations in the pleadings relating to this subject were the general conclusory statement in Contract Carriers’ answer to the cross-claim that “Schlagenhauf was not mentally or physically capable of operating” the bus at the time of the accident and the limited allegation in National Lead‘s cross-claim that, at the time of the accident, “the eyes and vision of . . . Schlagenhauf was [sic] impaired and deficient.”
The attorney‘s affidavit attached to the petition for the examinations provided:
“That . . . Schlagenhauf, in his deposition . . . admitted that he saw red lights for 10 to 15 seconds prior to a collision with a semi-tractor trailer unit and yet drove his vehicle on without reducing speed and without altering the course thereof.
“The only eye-witness to this accident known to this affiant . . . testified that immediately prior to the impact between the bus and truck that he had also been approaching the truck from the rear and that he had clearly seen the lights of the truck for a distance of three-quarters to one-half mile to the rear thereof.
“. . . Schlagenhauf has admitted in his deposition . . . that he was involved in a [prior] similar type rear end collision . . . .”
This record cannot support even the corrected order which required one examination in each of the four specialties of internal medicine, ophthalmology, neurology, and psychiatry.15 Nothing in the pleadings or affidavit would afford a basis for a belief that Schlagenhauf was suffering from a mental or neurological illness warranting wide-ranging psychiatric or neurological exami-
The only specific allegation made in support of the four examinations ordered was that the “eyes and vision” of Schlagenhauf were impaired. Considering this in conjunction with the affidavit, we would be hesitant to set aside a visual examination if it had been the only one ordered.17 However, as the case must be remanded to the District Court because of the other examinations ordered, it would be appropriate for the District Judge to reconsider also this order in light of the guidelines set forth in this opinion.
The
Accordingly, the judgment of the Court of Appeals is vacated and the case remanded to the District Court to reconsider the examination order in light of the guidelines herein formulated and for further proceedings in conformity with this opinion.
Vacated and remanded.
MR. JUSTICE BLACK, with whom MR. JUSTICE CLARK joins, concurring in part and dissenting in part.
I agree with the Court that under
In a collision case like this one, evidence concerning very bad eyesight or impaired mental or physical health which may affect the ability to drive is obviously of the highest relevance. It is equally obvious, I think, that when a vehicle continues down an open road and smashes into a truck in front of it although the truck is in plain sight and there is ample time and room to avoid collision, the chances are good that the driver has some physical, mental or moral defect. When such a thing happens twice, one is even more likely to ask, “What is the matter with that driver? Is he blind or crazy?” Plainly the allegations of the other parties were relevant and put the question of Schlagenhauf‘s health and vision “in controversy.” The Court nevertheless holds that these charges were not a sufficient basis on which to rest a court-ordered examination of Schlagenhauf. It says with reference to the
While I dissent from the Court‘s holding that no examination at all was justified by this record, I agree that the order was broader than required. I do so in part because of the arguments made in the dissent in Sibbach v. Wilson & Co., 312 U. S. 1, 16, that physical examinations of people should be ordered by courts only when clearly and unequivocally required by law. By the same reasoning I think the courts should exercise great restraint in administering such a law once it has been enacted, as Sibbach held it had been when
MR. JUSTICE DOUGLAS, dissenting in part.
While I join the Court in reversing this judgment, I would, on the remand, deny all relief asked under
The Court in Sibbach v. Wilson & Co., 312 U. S. 1, was divided when it came to submission of a plaintiff to a compulsory medical examination. The division was not over the constitutional power to require it but only as to whether Congress had authorized a rule to that effect. I accept that point as one governed by stare decisis. But no decision that when a plaintiff claims damages his “mental or physical condition” is “in controversy,” within
A defendant‘s physical and mental condition is not, however, immediately and directly “in controversy” in a negligence suit. The issue is whether he was negligent. His physical or mental condition may of course be relevant to that issue; and he may be questioned concerning it and various methods of discovery can be used. But I balk at saying those issues are “in controversy” within the meaning of
Neither the Court nor Congress up to today has determined that any person whose physical or mental condition is brought into question during some lawsuit must surrender his right to keep his person inviolate. Congress did, according to Sibbach, require a plaintiff to choose between his privacy and his purse; but before today it has not been thought that any other “party” had lost this historic immunity. Congress and this Court can authorize such a rule. But a rule suited to purposes of discovery against defendants must be carefully drawn in light of the great potential of blackmail.
This is a problem that we should refer to the Civil Rules Committee of the Judicial Conference so that if medical and psychiatric clinics are to be used in discovery against defendants—whether in negligence, libel, or contract cases—the standards and conditions will be discriminating and precise. If the bus driver in the instant case were not a defendant, could he be examined by doctors and psychiatrists? See Kropp v. General Dynamics Corp., 202 F. Supp. 207; 13 Buffalo L. Rev. 623 (1964). Lines must in time be drawn; and I think the new Civil Rules Committee is better equipped than we are to draw them initially.
MR. JUSTICE HARLAN, dissenting.
In my view the Court‘s holding that mandamus lies in this case cannot be squared with the course of decisions to which the majority at the threshold pays lip service. Ante, pp. 109-110. As the Court recognizes, mandamus, like the other extraordinary writs, is available to correct only those decisions of inferior courts which involve a “usurpation of judicial power” or, what is tantamount
Mandamus is found to be an appropriate remedy in this instance, however, because (1) petitioner‘s challenge was based on an asserted lack of power in the District Court to issue the examination order, and (2) that being so, the Court of Appeals had the right also to inquire into the application of the “in controversy” and “good cause” requirements of
For me this reasoning is unacceptable. Of course a court of appeals when confronted with a substantial challenge to the power of a district court to act in the premises may proceed to examine that question without awaiting its embodiment in a final judgment, as the Court of Appeals did here by issuing an order to show cause why a writ of mandamus should not issue. But once it is determined that the challenged power did exist, and that the district court acted within the limit of that power, an extraordinary writ should be denied. I know of no case which suggests that a court of appeals’ right to consider such a question at an interlocutory stage of the litigation also draws to the court the right to consider other questions—here the “in controversy” and “good cause” issues—which otherwise would not be examinable upon a petition for an extraordinary writ. Indeed, were an extraordinary writ to issue following a determination that the district court lacked power, that would put an end to the litigation and these questions would never be reached. And, as the Court correctly states, the fact that “hardship may result from delay and perhaps unneces-
Manifestly, today‘s procedural holding, when stripped of its sugar-coating, is born of the Court‘s belief that the petitioner should not be exposed to the rigors of these examinations before the proper “guidelines” have been established by this tribunal. Understandable as that point of view may be, it can only be indulged at the expense of making a deep inroad into the firmly established federal policy which, with narrow exceptions,1 permits appellate review only of the final judgments of district courts. To be sure the Court is at pains to warn that what is done today puts an end to future “interlocutory” review of
The Court of Appeals having correctly concluded, as this Court now holds and as I agree, that the District Court had power to order the physical and mental examinations of this petitioner, and since I believe that there was no clear abuse of discretion in its so acting, I think the lower court was quite right in denying mandamus, and I would affirm its judgment on that basis.