338 March 7, 2013 No. 13

IN THE SUPREME COURT OF THE 

STATE OF OREGON

Paul G. LINDELL, Jr.,

Plaintiff-Relator,

v.

Alex KALUGIN,

Defendant,

and

COUNTRYSIDE CONSTRUCTION, INC.,

an Oregon corporation,

Defendant-Adverse Party.

(CC CV10040946; SC S059437)

En Banc

Original proceeding in mandamus.*

Argued and submitted April 30, 2012; resubmitted 

January 7, 2013.

Helen C. Tompkins, Lake Oswego, argued the cause and 

filed the brief for plaintiff-relator.

Michael A. Lehner, Lehner & Rodrigues, P.C., Portland, 

argued the cause and filed the brief for defendant-adverse 

party.

Kathryn H. Clarke, Portland, argued the cause and filed 

the brief for amicus curiae Oregon Trial Lawyers Association.

Lindsey H. Hughes, Keating Jones Hughes, P.C., 

Portland, filed the brief for amicus curiae Oregon Association 

of Defense Counsel.

LANDAU, J.

The alternative writ of mandamus is dismissed.

______________

* On petition for writ of mandamus from an order of Clackamas County 

Circuit Court, Roderick A. Boutin, Judge pro tempore.
Cite as 353 Or 338 (2013) 339

Plaintiff filed a personal-injury action against defendants, and defendants 

then moved for a defense medical examination pursuant to ORCP 44 A. Plaintiff 

requested of the trial court that he be allowed to be accompanied by a friend, family 

member, or counsel during the examination. The trial court refused his request. 

Plaintiff then petitioned for an alternative writ of mandamus, which this court 

granted, directing the trial court to permit plaintiff to bring counsel to the exam or 

show cause for not doing so. Held: The burden rests with the examinee requesting 

conditions to establish that the requested conditions are supported by good cause. 

The trial court did not abuse its discretion in interpreting and applying ORCP 44 

A so as to refuse plaintiff’s request.

The alternative writ of mandamus is dismissed.
340 Lindell v. Kalugin

LANDAU, J.

In this personal injury action, defendant Kalugin 

moved for a defense medical examination pursuant to ORCP 

44 A. Plaintiff Lindell objected on the ground that he would 

not submit to such an examination without being allowed 

to bring a friend, family member, or counsel with him. The 

trial court declined to impose the discovery condition that 

Lindell requested. Lindell then petitioned this court for a 

writ of mandamus compelling the trial court to permit the 

examination only on condition that he be allowed to bring 

with him a friend, family member, or counsel. This court 

issued an alternative writ directing the trial court to permit 

Lindell to have legal counsel present as an observer at the 

examination or, in the alternative, to show cause for not 

doing so. In a letter opinion, the trial court respectfully 

informed this court that it would not modify its order and 

explained its reasoning for that conclusion. In response, 

Lindell now requests that this court enter a peremptory writ 

of mandamus requiring the trial court to allow a third-party 

observer. For the reasons that follow, we decline Lindell’s 

request for a peremptory writ and dismiss the alternative 

writ of mandamus.

I. FACTS

A. Before the Trial Court

The relevant facts are not in dispute. Lindell was 

injured when the vehicle that he had been driving was rear 

ended by a vehicle that Kalugin drove. Lindell initiated a 

personal injury action against Kalugin and his employer, 

Countryside Construction, Inc., owner of the vehicle that 

Kalugin was driving at the time of the accident. Lindell 

alleged that, as a result of the collision, he now suffers 

from amnesia, headaches, post-traumatic stress disorder, 

tinnitus, and an inability to focus on or track conversations.

During the pretrial discovery phase, Countryside 

arranged two defense medical examinations of Lindell, 

including a neuropsychological examination by Dr. Donna 

Wicher. Lindell asked that certain conditions be imposed on 

the conduct of the examination. One condition was:
Cite as 353 Or 338 (2013) 341

“Paul Lindell is permitted to have a friend or family 

member present at the exam as an observer, so long as 

this person does not interfere with the examination. This 

observer will unobtrusively make an audio tape recording of 

the exam; plaintiff’s counsel shall provide defense counsel 

with a copy of the recording upon request.”

Countryside discussed the proposed condition with Dr. 

Wicher, who told Countryside that a neuropsychological 

evaluation “could not be performed under the condition[] 

suggested.”

Because Lindell would not submit to the 

examination without the above-stated condition, 

Countryside moved to compel the examination pursuant to 

ORCP 44 A, which, as we describe in detail below, provides 

that a trial court may order a party to submit to a physical 

or mental examination when that party’s physical or mental 

condition is in controversy. In response to the motion to 

compel, Lindell explained that he did not oppose submitting 

to the neuropsychological evaluation, so long as certain 

conditions were imposed. Specifically, Lindell asked the 

court to “include the unobtrusive presence of an observer, 

and a tape recording” as conditions of the examination. 

Lindell asserted that “[t]his is not only generally a good 

idea in order to provide independent documentation of what 

occurred during the examination but is essential in this 

case because of the nature of plaintiff’s head injury and his 

vulnerability.” Furthermore, he added, he 

“has a constitutional right to counsel in this case arising 

from the U.S. Constitution and the Oregon Constitution. 

Art. I Section 10, Or. Constitution. [sic] That right requires 

that he be allowed to have an attorney or designee present 

as an observer and to make an audio or video (and audio) 

recording.”

Attached as an exhibit to his response, Lindell 

provided a draft order that set out his proposed conditions 

of the medical examination. Those conditions included:

“6. Paul Lindell is permitted to have *** legal counsel 

or a friend or family member present at the exam as an 
342 Lindell v. Kalugin

observer, so long as this person is unobtrusive and does not 

interfere with the examination.

“7. The observer may unobtrusively make an audio 

and/or video recording of the exam; plaintiff’s counsel shall 

provide defense counsel with a copy of the recording upon 

request.”

Countryside opposed the imposition of the 

requested conditions. It submitted to the court a letter from

Dr. Laurence M. Binder, a clinical professor of neurology and 

psychiatry at Oregon Health and Science University and 

one of plaintiff’s own consulting doctors, who summarized 

his personal views and the views of the National Academy 

of Neuropsychology and the American Academy of Clinical 

Neuropsychology on the subject of allowing observers or 

audiotaping of independent examinations. In brief, Binder 

explained that “[o]ur profession strongly opposes observation 

by third parties or audiotaping of exams because of two 

concerns.” First, he explained that third-party observation 

or audiorecording “is incompatible with maintenance of 

test security.” According to Binder, the validity of many 

neuropsychological tests depends on the examinee not being 

familiar with them and thus not being able to prepare for 

them. Second, he explained that the presence of observers or 

audiorecording affects test performance. According to Binder, 

“peer-reviewed, published research has demonstrated that 

people tested with observers present or with an audiotape 

recorder running perform worse on neuropsychological tests 

than people tested without observers or taping.” Countryside 

also submitted a published article by Dr. Richard Kolbell, 

Chair of the Ethics Committee of the Oregon Psychological 

Association, which likewise opposed the presence of 

observers or audiorecording of examinations, on both 

practical and ethical grounds. The article concluded with 

a statement of the Oregon Psychology Association opposing 

the presence of third-party observers in neuropsychological 

examinations. The statement asserts that, “[t]he use of a 

third party observer during a forensic psychological and/or 

neuropsychological evaluation does not meet an acceptable 

standard of practice and is not permissible under current 

professional and ethical standards.”
Cite as 353 Or 338 (2013) 343

After a hearing, the trial court granted Countryside’s 

motion to compel, but declined imposing the two foregoing 

conditions. The court explained that “[t]he practice of 

this court is [to] deny the accompaniment of an observer, 

and the recording of the examination, in the absence of 

circumstances that make an exception to that general rule 

necessary for a fair examination. I am not persuaded that 

such circumstances exist here.”

B. Mandamus Proceeding

Lindell petitioned this court for a writ of mandamus 

“compelling the trial court to enter an Order adequately 

protecting plaintiff and plaintiff’s access to counsel in his 

personal injury case by ordering that he may bring an 

observer and/or he may audio or videotape the examination.” 

In his memorandum in support of the petition, Lindell 

asserted that the trial court erred in failing to impose the 

requested conditions because it “shift[ed] the allocated 

burden of proof in ORCP 44 A away from the defendant to 

show ‘good cause’ for the examination” and because the trial 

court “either declined to exercise [discretion] to establish 

conditions for the examination” or “abused its discretion by 

failing to provide adequate and reasonable protections for 

a brain-injured plaintiff attending a defense psychological 

examination.” He argued that he had no adequate remedy 

at law, as his “right to counsel in the adversarial proceeding 

of a defense medical examination under ORCP 44 A *** 

cannot be vindicated by a subsequent appeal.”

This court issued an alternative writ of mandamus, 

instructing the trial court to

“enter an order permitting plaintiff Lindell to have 

legal counsel present as an observer at the ORCP [44] 

examination of plaintiff, under the condition that legal 

counsel is unobtrusive and does not interfere with the 

examination except as necessary to protect the legal 

interests of plaintiff Lindell or, in the alternative, to show 

cause for not doing so.”

In response, the trial court adhered to its decision not to 

permit Lindell to have a third party attend the examination. 

In a four-page, single-spaced letter opinion, the court 
344 Lindell v. Kalugin

detailed the parties’ contentions about the need for the 

requested condition on conducting the examination. The 

court explained:

“ORCP 44 examinations are not intended to be 

adversarial. They are intended to be professional 

examinations conducted by professionals in accord with 

the high standards and practices of their profession. 

Notwithstanding, experience teaches that professionals 

do, on occasion, stray from those high standards and allow 

their judgment to be colored by other influences. This is the 

stuff of cross examination and the wisdom of the jury.

“The issue for this court is, what conditions are 

necessary to protect the interests of both the plaintiff and 

the defendant, for both are entitled to a process that is 

as fair as possible. Just as a plaintiff may complain that 

an unaccompanied examination may put him or her at a 

disadvantage, a defendant may complain that allowing 

anyone to observe an examination necessarily influences 

the accuracy and outcome of the examination.”

The court acknowledged that Lindell “has a brain injury, 

that he wears hearing aids and that he has tinnitus.” 

Nevertheless, the court commented, the evidence that 

Lindell submitted “does not say that his cognitive functioning 

is such, or that his hearing impairment is such, that he is 

unable to present for a neuropsychological examination.” 

The court acknowledged Lindell’s contention that he is 

“emotionally fragile.” Still, the court stated, the evidence 

“does not say that Mr. Lindell cannot meaningfully present 

for an ORCP 44 examination.”

The trial court also noted that it had heard from 

Lindell that the presence of counsel is necessary because 

the particular physician whom Countryside had selected to 

conduct the examination “appears cold and unsympathetic 

and acts skeptical” and that the doctor has the reputation 

for being a defense advocate. The trial court responded:

“The court desire[s] to craft a litigation path that is as 

fair and balanced to all parties as is possible. The plaintiff 

is entitled to be as free from harassment, intrusion, 

embarrassment, discomfort, and a host of other adjectives, 

as possible. The defense is entitled to know Mr. Lindell for 
Cite as 353 Or 338 (2013) 345

who he is. Overlaying all that is what appears to be the 

true issue—the plaintiff objects to Dr. Wicher.

“It is unclear to me what is to be gained by having one of 

Mr. Lindell’s lawyers observe, and not unnecessarily intrude 

in, the examination by Dr. Wicher[.] If the purpose is to 

improve Mr. Lindell’s mood, or help him answer questions, 

then the examination is by design flawed. If the purpose is 

to be able to critique the examination, will that lawyer be 

obliged to make notes of his or her observations? To disclose 

those notes? To be subject to deposition? Permitted to testify 

at trial, either as a fact or impeachment witness? If to 

critique the tests done or questions asked, and the results 

and answers obtained, does the lawyer need a minimum 

amount of training in the examiner’s field of expertise?”

The trial court concluded that, in the end, Lindell simply had 

not demonstrated good cause for the requested condition on 

the conduct of the examination.

Lindell now requests that this court enter a 

peremptory writ, requiring the trial court to allow either “a 

friend, family member[,] or attorney with him to the defense 

psychological examination.” He frames his argument in 

terms of three assignments of error. First, he argues that 

“[t]he trial court erred in adopting a presumption” against 

the conditions that he sought. Second, he argues that “[t]he 

trial court erred when it refused to exercise its discretion to 

fashion” a remedy that would have protected him adequately 

during the examination. Third, he argues that, “[t]he trial 

court erred in refusing to enter an order complying with this 

court’s alternative writ.”

The narrowness of the issues before us bears some 

emphasis. Lindell does not argue that he has a constitutional 

right to the presence of counsel during the examination. 

He does not mention any provision of the state or federal 

constitution in his petition for a writ of mandamus or any 

supporting memoranda. Nor does he cite any case for the 

proposition that he is entitled, as a matter of law, to the 

presence of counsel qua counsel during a defense medical 

examination. As we have noted, before the trial court, he did 

mention—briefly—a constitutional right to counsel. Even 
346 Lindell v. Kalugin

then, the only relief that he requested was that the court 

permit “legal counsel or a friend” to attend the examination.

At all events, a constitutional right to counsel is 

not a matter that he pursues before this court. His only 

argument now is that he “should be permitted to either 

bring a third party observer or to record the examination” 

because doing so “is sound policy and warranted on the facts 

of this record.” He contends that “a third party observer or 

a recording is necessary to guarantee the fairness” of the 

examination. That third party, he argues, could be “a friend, 

family member or attorney.” His argument in that regard is 

predicated solely on ORCP 44 A and what he contends is the 

trial court’s erroneous interpretation and application of it.1

Amicus curiae Oregon Trial Lawyers Association 

(OTLA) even more explicitly takes the position that the 

issue is not whether Lindell has a right to the assistance of 

counsel during a defense medical examination. OTLA notes 

that the alternative writ mentioned only the presence of 

legal counsel, but then states that OTLA

“finds it difficult to analyze the question as so strictly 

confined. ** * [T]he examinee may have concerns best * ** 

addressed by something other than the presence of counsel. 

OTLA believes that neither the questions presented to the 

trial court by the litigants here, nor the analysis necessary 

to answer them, can be restricted to the presence of the 

examinee’s attorney.”

Like Lindell, OTLA focuses instead on the question whether 

the trial court erred in failing to permit a third-party 

observer, who “could be the examinee’s attorney or could 

be a family member or a friend.” Accordingly, we confine 

our opinion to those matters and do not address the legal 

issue whether a plaintiff in a personal injury action has a 

constitutional right to the presence of counsel at a defense 

medical examination.

1 Lindell also argues that, if we are not inclined to require the presence of 

a third party, we should order the trial court to permit him to audiorecord the 

examination. The alternative writ, however, did not say anything about requiring 

the court to permit a recording of the examination. We confine ourselves to the 

only issue set out in the alternative writ and express no opinion about whether 

the court abused its discretion in failing to allow Lindell to audiorecord the 

examination.
Cite as 353 Or 338 (2013) 347

II. ANALYSIS

Mandamus is “an extraordinary remedy” and 

serves a limited function. Sexson v. Merten, 291 Or 441, 

445, 631 P2d 1367 (1981). It is a statutory remedy aimed at 

correcting errors of law for which there is no other “plain, 

speedy and adequate remedy in the ordinary course of the 

law.” ORS 34.110. Importantly, as this court has stated 

many times, “[i]t has become hornbook law in this state 

that the writ of mandamus cannot be used as a means of 

controlling judicial discretion.” State ex rel. Ricco v. Biggs, 

198 Or 413, 422, 255 P2d 1055 (1953); see also State ex rel 

Douglas County v. Sanders, 294 Or 195, 198 n 6, 655 P2d 175 

(1982) (“Mandamus is not available to review the exercise 

of trial court discretion.”). Only if the trial court’s decision 

amounts to “fundamental legal error” or is “outside the 

permissible range of discretionary choices” will the remedy 

of mandamus lie. State ex rel Keisling v. Norblad, 317 Or 

615, 623, 860 P2d 241 (1993).

At issue in this case is whether the trial court 

committed such fundamental legal error or made a decision 

outside the permissible range of discretionary choices in 

interpreting and applying ORCP 44 A, which provides, in 

part:

“When the mental or physical condition or the blood 

relationship of a party * * * is in controversy, the court 

may order the party to submit to a physical or mental 

examination by a physician or a mental examination by a 

psychologist or to produce for examination the person in 

such party’s custody or legal control. 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.”

Lindell’s first contention is that the trial court erred 

as a matter of law in interpreting that rule to create a 

“presumption” against imposing the condition that he 

requested. As we understand it, Lindell asserts that, under 

ORCP 44 A, the examinee has no burden to establish 

anything with respect to a requested condition; rather, the 
348 Lindell v. Kalugin

burden rests with the party requesting the examination 

to establish the unreasonableness of any such requested 

conditions. Beyond that bare assertion in his brief, Lindell 

has supplied no supporting explanation or argument 

concerning the nature of the trial court’s asserted error. Nor 

has he provided any explanation for why he believes that 

ORCP 44 A imposes a burden on a defendant to establish the 

unreasonableness of any condition that a plaintiff requests. 

He simply notes that the trial court’s order in this case is 

inconsistent with trial court orders in other cases in other 

circuits.

OTLA proposes an argument in support of Lindell’s 

position. In OTLA’s view, certain requested conditions 

should be regarded as “presumptively appropriate,” given 

the “adversarial” and “inherently intimidating” nature 

of a defense medical examination. Those presumptively 

appropriate conditions include “the presence of an observer” 

during the examination. OTLA acknowledges that, for most 

forms of discovery, the Oregon rules require a showing 

of good cause before a court may impose conditions on 

discovery. Nevertheless, it argues, because of the unique 

phrasing of ORCP 44 A, a different allocation of the burden 

of persuasion should apply. Specifically, OTLA notes 

that ORCP 44 A allows a trial court to order a medical 

examination only upon a showing of “good cause” by the 

party requesting the examination. OTLA further notes that 

the rule says nothing one way or the other about who bears 

the burden of persuasion concerning the necessity of any 

conditions on the examination. Under the circumstances, 

OTLA reasons, it seems to follow that the party who bears 

the burden of establishing good cause for the examination 

should also bear the burden of establishing a lack of good 

cause for any conditions on that examination.

Countryside responds that OTLA’s argument is 

contrary to settled principles about the proper allocation of 

the burden of persuasion as to a fact or issue. It further 

argues that OTLA’s argument is contrary to this court’s 

decision in Pemberton v. Bennett, 234 Or 285, 289, 381 P2d 

705 (1963), in which the court upheld the trial court’s refusal 

to allow counsel to attend a defense medical examination 
Cite as 353 Or 338 (2013) 349

precisely because the plaintiff in that case had failed to 

establish why the presence of counsel was necessary.

To determine the meaning of ORCP 44 A, we apply 

the precepts that ordinarily apply to the interpretation of 

statutes and rules. A.G. v. Guitron, 351 Or 465, 471, 268 P3d 

589 (2011) (applying those principles to ORCP 44 B and C).2

In accordance with those ordinary principles of construction, 

we examine the text of the rule in its context, along with any 

adoption history that we find relevant. State v. Gaines, 346 

Or 160, 171-72, 206 P3d 1042 (2009). Case law existing at 

the time of the adoption of the rule or its predecessor forms 

part of the context of the rule. Guitron, 351 Or at 471; SAIF 

v. Walker, 330 Or 102, 108-09, 996 P2d 979 (2000).

We begin with the text of the rule. ORCP 44 A plainly 

provides that the party seeking an order compelling another 

party to submit to a mental or physical examination must 

establish “good cause” for the order. The rule requires that 

the order “specify the time, place, manner, conditions, and 

scope of the examination,” but—as all parties acknowledge—

it does not expressly impose a burden on anyone in particular 

to establish the reasonableness of those conditions.

Ordinarily, the party seeking relief bears the 

burden of persuasion. See OEC 305 (“A party has the burden 

of persuasion as to each fact the existence or nonexistence 

of which the law declares essential to the claim for relief 

or defense the party is asserting.”). Thus, it would seem 

to follow that, if the party requesting the examination 

also requests certain conditions, that party must establish 

good cause for those conditions. Likewise, if the examinee 

2 It may be argued that, to the extent that any of the Oregon Rules of Civil 

Procedure were not actually adopted or amended by the legislature, they are not 

themselves statutes. Cf. Waddill v. Anchor Hocking, Inc., 330 Or 376, 382 n 2, 8 

P3d 200 (2000), adh’d to on recons, 331 Or 595, 18 P3d 1096 (2001) (only if a rule of 

civil procedure was amended or adopted by the legislature is the proper focus the 

intentions of the legislature). We need not address that issue in this case because, 

as we note below, ORCP 44 A was, in fact, amended by the legislature. Moreover, 

the same basic principles apply to the interpretation of both statutes and rules. 

See, e.g., State v. Hogevoll, 348 Or 104, 109, 228 P3d 569 (2010) (“In construing an 

administrative rule, we apply the same analytical framework that applies to the 

construction of statutes.”); Tye v. McFetridge, 342 Or 61, 69, 149 P3d 1111 (2006) 

(“In interpreting an administrative rule *** our task is the same as that involved 

in determining the meaning of a statute, which is to discern the meaning of the 

words used, giving effect to the intent of the body that promulgated the rule.”).
350 Lindell v. Kalugin

requests conditions on the examination, then that party 

must establish good cause for those conditions.

Consistently with that ordinary allocation of the 

burden of persuasion, the Oregon Rules of Civil Procedure 

provide that any party who wishes to impose conditions on 

discovery may do so by means of a motion for a protective 

order under ORCP 36. That rule, which expressly applies to 

“physical and mental examinations,” ORCP 36 A, provides 

that the party seeking an order “that discovery may be had 

only on specified terms and conditions” must establish “good 

cause” for those conditions. ORCP 36 C.

Thus, taken together, ORCP 44 A and 36 C suggest 

that, if an examinee wishes the court to order that a third 

party be present at a physical or mental examination or that 

any other limitation or condition be placed on such discovery, 

it is the examinee’s burden to establish good cause for such 

a limitation or condition.

The context of those rules, as they were developed 

over the years, bears out that interpretation. As we 

explained in Guitron, 351 Or at 471, this court recognized 

the inherent authority of trial courts to order a plaintiff to 

submit to an examination by medical experts in Carnine v. 

Tibbets, 158 Or 21, 27, 74 P2d 974 (1937). In Pemberton, the 

court addressed the scope of that inherent authority as it 

applied to case facts nearly identical to those before us now. 

234 Or at 286. The plaintiff had initiated an action against 

the defendants for personal injuries. The defendants moved 

for an order requiring the plaintiff to submit to a physical 

examination by a physician selected by the defendants. 

The plaintiff arrived at the examination with her attorney, 

but the physician refused to make the examination in the 

presence of the attorney. The matter was taken up by the 

trial court. The plaintiff offered no evidence. That is to say, 

the plaintiff offered “nothing to indicate in what way [she] 

believed her physical examination out of the presence of her 

attorney would be or was prejudicial.” Id. at 286. The trial 

court ordered the plaintiff to submit to the examination 

without being accompanied by her attorney. On appeal, the 

plaintiff assigned error to the trial court’s ruling. This court 

affirmed.
Cite as 353 Or 338 (2013) 351

The court first held that the question whether 

counsel may be present at a compelled medical examination 

is a matter “largely within the discretion of the trial court.” 

Id. at 287. The court acknowledged that it could be argued 

that counsel had a right to be present “at all times to 

advise his client in any matter affecting the lawsuit.” Id. 

at 288. The court noted that it also could be argued that “a 

medical examination is not an occasion when the assistance 

of counsel is normally necessary.” Id. The court suggested 

that “[t]he presence of an attorney in an examination would 

probably tend to prolong the examination and could create 

an atmosphere in which it would be difficult to determine 

the examinee’s true reactions.” Id. Still, the court observed,

“there are certain occasions when the trial court might 

determine that the attorney’s presence at all or part of an 

examination is a reasonable request. The examinee, the 

examiner, the nature of the proposed examination or the 

nature of the medical problem,—these factors, separately 

or collectively could cause the trial court to condition the 

examination upon the attorney being permitted to be 

present at all or part of the examination.”

Id. at 288-89. The key was whether the plaintiff established 

a basis on which the trial court could determine that the 

presence of counsel was reasonably necessary. The court 

noted that no such record existed in that case:

“In the instant case, no reason was advanced why it was 

desirable or necessary that the attorney for the plaintiff be 

present at the examination. The trial court had no basis 

for determining whether or not the examination should 

be conducted with or without the presence of plaintiff’s 

counsel. This assignment of error is found to be groundless.”

Id. at 289.

Thus, at least before the adoption of ORCP 44 A and 

36, the law was clear that whether counsel could be present 

during a compelled medical examination was a matter 

committed to the discretion of the trial court and depended 

on whether the party seeking the condition established the 

reasonable necessity of that condition.

Meanwhile, the Federal Rules of Civil Procedure 

were adopted. Those rules often have served as models for 
352 Lindell v. Kalugin

state rules of civil procedure, and that was later to be the 

case for Oregon’s rules. Federal Rule of Civil Procedure 

35(a)—originally adopted in 1937 and amended in 1970—

provided:

“When the mental or physical condition (including the 

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 or to 

produce for examination the person in his custody or legal 

control. 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.”

FRCP 35(a) (1970).

Federal courts construing and applying that rule 

have concluded that counsel may attend a physical or 

mental examination, if at all, only upon a showing of good 

cause. See, e.g., Warrick v. Brode, 46 FRD 427, 427 (D Del 

1969) (“The examination authorized by Rule 35, while 

providing for protective devices, does not provide for the 

presence of counsel.”); Dziwanoski v. Ocean Carriers Corp., 

26 FRD 595, 598 (D Md 1960) (“The presence of the lawyer 

*** is not ordinarily either necessary or proper; it should 

be permitted only on application to the court showing good 

reason therefor.”). According to the federal court decisions, 

the requirement that a party demonstrate good cause for 

such conditions on the examination derived from Federal 

Rule 26(c), which provided that any party may request 

a protective order to limit the scope of discovery for good 

cause.

In 1973, the Oregon State Bar Committee on 

Practice and Procedure drafted House Bill (HB) 2101 (1973), 

which, among other things, codified the authority of the 

trial court to order a party to attend a physical or mental 

examination. Section 1 of that bill provided:

“In a civil action where a claim is made for damages for 

injuries to the party or to a person in the custody or under 

the legal control of a party, the court in which the action 
Cite as 353 Or 338 (2013) 353

is pending may order the person claiming to be injured to 

submit to a physical or mental examination by a physician 

employed by the moving party. The order may be made 

only on motion for good cause shown and upon notice to 

the persons to be examined and to all parties. The motion 

and order shall specify the time, place, manner, conditions, 

and scope of the examination and the person or persons by 

whom it is to be made.”

Or Laws 1973, ch 136, § 1.

There is little legislative history about that section; 

most of the attention devoted to HB 2101 involved other 

sections of the bill that required the production of the 

examining physician’s report. See generally Guitron, 351 Or 

at 474-78 (detailing legislative history of other provisions 

of HB 2101). David Landis, however, who was a member of 

the Bar committee that drafted the bill, did explain to the 

House Judiciary Committee that the phrasing of section 1 

was modeled after Federal Rule of Civil Procedure 35(a) and 

was intended to “merely codify existing case law.” Minutes, 

House Judiciary Subcommittee #2, HB 2101, Feb 12,

1973 (statement of David Landis). Likewise, Austin Crowe, 

another member of the bar committee, explained to the 

Senate Committee on Judiciary that “section 1 tries to 

codify the existing state law.” Minutes, Senate Committee 

on Judiciary, HB 2101, May 2, 1973 (statement of Austin 

Crowe). The legislature ultimately adopted the bill without 

amendment, and it was codified at ORS 44.610 (1973).

In 1978, the Council on Court Procedures adopted 

the Oregon Rules of Civil Procedure, including what is now 

ORCP 44 A. As adopted by the council, the rule provided:

“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 may order 

the party to submit to a physical or mental examination 

by a physician or to produce for examination the person 

in such party’s custody or legal control. 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.”
354 Lindell v. Kalugin

The rule, plainly modeled on the wording of Federal Rule 

35(a), thus extended a trial court’s authority to order an 

examination not just in personal injury actions, but in 

any case in which the mental or physical condition of a 

party is in controversy. Under ORS 1.735, those rules 

became effective on January 1, 1979, unless the legislature 

amended, repealed, or supplemented them. As it happens, 

the legislature did amend slightly the wording of the rule 

as adopted by the council, but none of those amendments 

pertain to the issues in this case. See Guitron, 351 Or at 

478-79 n 11 (detailing 1979 legislative amendments). After 

adopting those changes, the legislature repealed ORS 

44.610. Or Laws 1979, ch 284, § 199.

The council’s commentary to the rules sheds little 

light on ORCP 44 A. Once again, the majority of the discussion 

concerned other issues—in particular, the production of 

physician examination reports. But the commentary does 

make clear that the text of ORCP 44 A “comes from the 

federal rule.” Comment, Discovery Committee Draft Rules, 

Council on Court Procedures, Dec 2, 1978, 57.

At the same time, the council adopted ORCP 

36, which was also based on a federal rule—specifically, 

Federal Rule 26. ORCP 36 A first sets out a general rule 

of discovery by various methods, including “physical and 

mental examinations.” ORCP 36 C then provides that any 

party may, “for good cause shown,” seek an order “which 

justice requires to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” 

That order may include a requirement “that discovery may 

be had only on specified terms and conditions.” Id.

At the time that the council adopted, and the 

legislature amended, ORCP 44 A, the federal courts 

uniformly continued to allow counsel or other third parties 

to attend an examination, if at all, only on a showing of 

good cause pursuant to FRCP 26(c). See, e.g., Sanden v. 

Mayo Clinic, 495 F2d 221, 225 (8th Cir 1974) (trial court 

did not abuse its discretion in refusing to allow third party 

to attend medical examination because plaintiff failed to 

establish good cause); Brandenburg v. El Al Israel Airlines, 

79 FRD 543, 546 (SDNY 1978) (party’s contention of right 
Cite as 353 Or 338 (2013) 355

to counsel at a Rule 35 examination was “frivolous”). 

Indeed, to this day, federal courts generally prohibit counsel 

from attending the examination. See generally James C. 

Francis IV and Robert M. Bloom, 7 Moore’s Federal Practice

§ 35.08[1] at 35-35 (3d ed 2009) (“Because the presence of 

the examinee’s attorney may inhibit the examiner and also 

create the possibility that the attorney will become a trial 

witness, courts generally prohibit counsel for the party to be 

examined from attending the examination.”).

To summarize: Both ORS 44.610 and ORCP 44 A 

were intended to “codify existing case law,” which at the time 

held that a trial court exercising its inherent authority to 

compel a medical examination had the discretion to impose 

conditions on the examination only if the party seeking the 

conditions established good cause for them. Moreover, the 

wording of both ORS 44.610 and ORCP 44 A was based on 

the wording of Federal Rule 35(a), a rule that federal courts 

at the time consistently construed to impose a burden on 

the examinee seeking to impose conditions on a compelled 

physical or mental examination to show good cause for those 

conditions.

As a general rule, when the Oregon legislature 

borrows wording from a statute originating in another 

jurisdiction, there is a presumption that the legislature 

borrowed controlling case law interpreting the statute along 

with it. Jones v. General Motors Corp., 325 Or 404, 418, 939 

P2d 608 (1997); Fleischhaer v. Bilsted et al, Gray et ux, 233 

Or 578, 585, 379 P2d 880 (1963). In this case, the federal 

case law, although not including decisions of the United 

States Supreme Court, nevertheless was consistent at the 

time that the Oregon legislature adopted ORS 44.610 and 

ORCP 44 A, and, indeed, remains consistent to this day. 

Under the circumstances, it seems appropriate to regard 

the federal court decisions as at least highly persuasive 

as to the intentions of the Oregon legislature in borrowing 

from the federal rules. See, e.g., BRS, Inc. v. Dickerson, 278 

Or 269, 275, 563 P2d 723 (1977) (“‘When one state borrows 

a statute from another state, the interpretation of the 

borrowed statute by the courts of the earlier enacting state 
356 Lindell v. Kalugin

ordinarily is persuasive.’”) (quoting State ex rel Western 

Seed v. Campbell, 250 Or 262, 270-71, 442 P2d 215 (1968)).

OTLA does not contest that the federal cases 

consistently hold that it is the examinee who bears the 

burden of demonstrating good cause for a requested condition 

on a physical or mental examination. Nevertheless, it 

argues that we should reject them, because they are based 

on a “somewhat wistful outlook on compelled medical 

examinations.” OTLA suggests that we should instead be 

persuaded by the more realistic reasoning of courts from 

other states that have recognized the adversarial nature 

of compelled examinations and presume that an examinee 

may be accompanied by counsel or a designated third person 

or that a record of the examination be required.

OTLA misperceives the nature of the issue before 

us, which is not a matter of this court’s view—“wistful,” 

“realistic,” or otherwise—of the real nature of compelled 

medical examinations. The issue before us is solely one of 

interpretation, guided by the rules that we have described. 

See Holien v. Sears, Roebuck and Co., 298 Or 76, 95-96, 689 

P2d 1292 (1984) (“The responsibility of this court is to apply 

and interpret the law, not to assume the role of a legislative 

chamber.”).

As for the decisions of other state courts that OTLA 

offers, we note that the courts’ decisions are based on their 

interpretations of differently worded rules—rules that 

expressly recognize a right of a party to be accompanied 

by counsel or other persons. See, e.g., Langfeldt-Haaland v. 

Saupe Enters., Inc., 768 P2d 1144, 1147 (Alaska 1989) (state 

constitution gives plaintiff the right to the presence of counsel 

during a mental examination); Vinson v. Superior Court, 43 

Cal 3d 833, 846, 740 P2d 404 (1987) (state statute provides 

the right to presence of counsel at physical examination); 

Boswell v. Schultz, 175 P3d 390, 393 (Okla 2007) (state rule 

expressly permits presence of observer at examination). 

Others have adopted the view that OTLA proposes without 

reference to any rule at all. See, e.g., Parsons v. Hytech Tool 

& Die, 661 NYS2d 362, 362, 241 A2d 936 (1997). Oregon’s 

rules are different and do not permit the interpretation that 

OTLA advocates.
Cite as 353 Or 338 (2013) 357

In short, we reject Lindell’s and OTLA’s contention 

that ORCP 44 A imposes on the party seeking a physical or 

mental examination the burden of proving that conditions 

that are requested by the examinee are unreasonable. 

The burden rests with the examinee to establish that 

any requested limitations or conditions on discovery are 

supported by good cause. In this case, therefore, the trial 

court did not commit a fundamental legal error in requiring 

Lindell to establish good cause for his request that he be 

permitted to have a third party accompany him during the 

compelled medical examination.

Lindell’s remaining contentions are that the trial 

court either “refused to exercise its discretion” to order that 

the examination proceed only on the condition that a third 

party be present or that the court “abused its discretion” 

when it failed to order that condition. In evaluating those 

contentions, we are mindful of the extraordinary nature of 

the remedy of mandamus and that the scope of our review 

is limited to determining whether the trial court’s decision 

was “outside the permissible range of discretionary choices 

open” to it. State v. Burleson, 342 Or 697, 702, 160 P3d 624 

(2007).

Lindell, in arguing that the trial court either 

refused to exercise discretion or abused its discretion, notes 

that the court, at least in its initial decision, simply relied 

on the “practice” of the court to deny requests for conditions 

on medical examinations in the absence of a showing of 

necessity. In a similar vein, it could be argued that the 

trial court’s letter opinion in response to the alternative 

writ similarly set the bar too high in mentioning the fact 

that Lindell failed to establish the absolute “necessity” of 

the presence of a third party at the examination. But, in a 

mandamus proceeding, we are limited to deciding whether 

the trial court committed clear error. In this case, the trial 

court’s opinion also included an evaluation of the evidence 

offered by both parties and an attempt to arrive at a decision 

that took into consideration both the reasons for Lindell’s 

request and Countryside’s concerns in opposing it.

Specifically, the trial court acknowledged the serious 

nature of Lindell’s injuries and their effect on his ability to 
358 Lindell v. Kalugin

hear, to remember details, and to handle stressful situations. 

The court noted that Lindell is “entitled to be as free from 

harassment [and] discomfort” as much as is possible. At 

the same time, the court noted Countryside’s evidence 

that allowing a third party to observe the examination 

“necessarily influences the accuracy and outcome of the 

examination” and that Countryside is “entitled to know Mr. 

Lindell for who he is,” not who he is in the presence of a 

friend, family member, or attorney. We cannot ignore those 

aspects of the trial court’s opinion in our analysis.

The trial court’s ultimate decision to deny Lindell’s 

request to require the presence of a third party at the 

examination may be one about which reasonable persons 

could disagree. But, in this mandamus proceeding, we 

cannot say that the court failed to exercise its discretion or 

that it exercised its discretion in a manner that was outside 

the range of choices that the law permits.

Lindell insists that, given the evidence that 

his injuries left him vulnerable and given the fact that 

the examining physician has a reputation for being 

“unsympathetic,” we should conclude that the trial court’s 

denial of his request for the presence of a third party during 

the examination was, in fact, outside the legally permissible 

range of choices available under ORCP 44 A. If that were 

the only evidence in the record, Lindell might have a point. 

He neglects, however, to take into account the uncontested 

evidence that Countryside offered. Given that record, the 

trial court could perhaps have ruled either way on Lindell’s 

request. But we cannot say that the law permitted the court 

one, and only one, conclusion.

The alternative writ of mandamus is dismissed.