file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 01-741 

2001 MT 269 

OPINION AND ORDER

GARY WINSLOW, 

Petitioner, 

v.

MONTANA RAIL LINK, INC., a 

Montana corporation, 

Respondent.

¶1 Gary Winslow has petitioned this Court for a writ of supervisory control. He seeks to 

have this Court reverse a District Court ruling requiring that he submit to a psychiatric 

evaluation pursuant to Rule 35, M.R.Civ.P. He contends that the District Court erred in 

finding that the "good cause" requirement of Rule 35 was satisfied by the fact that 

Winslow has asserted an independent claim for intentional or negligent infliction of 

emotional distress. He further contends that the District Court erred in ordering a Rule 35 

examination without setting forth the "manner, conditions and scope of the examination" 

in advance of the examination itself. 

¶2 This petition raises issues as to the proper scope of discovery of medical information 

through psychiatric examination. Discovery of potentially-privileged material presents 

unique issues which we have, under certain circumstances, found sufficient to invoke 

original jurisdiction. 

¶3 In Jaap v. District Court (1981), 191 Mont. 319, 623 P.2d 1389, we granted a writ 

because the District Court had exceeded its authority by allowing defendant's attorney to 

privately interview plaintiff's physicians-a method of discovery not authorized by the 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (1 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

Montana Rules of Civil Procedure. 

¶4 In Burlington Northern v. District Court (1989), 239 Mont. 207, 779 P.2d 885, we 

again addressed a District Court order compelling discovery of potentially-privileged 

material. The District Court had ordered the defendant to produce certain work product 

and had enjoined the defendant from engaging in further discovery until it complied with 

the discovery order. The defendant argued that if it were to disclose privileged material, 

"the harm is complete and cannot be rectified on appeal." Burlington Northern, 239 Mont. 

at 211, 779 P.2d at 888. We agreed that the potential harm could not be remedied 1by 

appeal. We exercised supervisory control and ultimately vacated that part of the District 

Court order enjoining the defendant from engaging in further discovery. 

¶5 In State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 822 P.2d 91, we 

accepted jurisdiction over a petition for supervisory control in a Rule 35 discovery dispute. 

Mapes contended that his claim was for physical injuries from exposure to toxic fumes. As 

a result of the injury to his central nervous system, he claimed that he had measurable 

cognitive deficit. He maintained, however, that he was not seeking damages for any 

psychological injury and thus argued that there was no good cause for discovery of his 

psychological records. While recognizing that interlocutory review of discovery orders is 

not favored, State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 634 P.2d 648, 

we noted: "Defendant's right to discover plaintiff's mental or physical condition is based 

on fairness where that mental or physical condition is placed in issue by a claim for 

damages. However, defendant's need for that discovery must be balanced by plaintiff's 

constitutional right to privacy found in Mont. Const. Art. II, Sec. 10." Mapes, 250 Mont. at 

529, 822 P.2d at 94. We held that confidentiality of communications between a patient and 

his psychologist can be waived like any other privilege. "When a party claims damages for 

physical or mental injury, he or she places the extent of that physical or mental injury at 

issue and waives his or her statutory right to confidentiality to the extent that it is 

necessary for a defendant to discover whether plaintiff's current medical or physical 

condition is the result of some other cause." Mapes, 250 Mont. at 530, 822 P.2d at 94.

¶6 Similar to Mapes, the present case presents issues as to good cause for and scope of 

discovery of potentially-privileged medical information under Rule 35(a), M.R.Civ.P. The 

question of whether the court must define the conditions, manner and scope of a Rule 35 

examination before the examination is conducted is one of first impression and is of 

statewide importance. If, as alleged, the District Court is proceeding under a mistake of 

law as to the scope of such discovery, the harm cannot be remedied by way of appeal. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (2 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

Accordingly, we accept jurisdiction over this matter. 

Discussion 

¶7 Winslow concedes that, in pleading an independent claim for negligent or intentional 

infliction of emotional distress, he has placed his mental condition in controversy. 

However, he contends that he has not sought psychological care nor does he plan to retain 

an expert witness to testify on the subject. He posits that it is, therefore, not necessary for 

Montana Rail Link (MRL) to present expert testimony to meet Winslow's proof. He 

argues further that, given his suspicions that the examination might be improperly used to 

assess his credibility, the court erred in concluding that the mere filing of a claim for 

infliction of emotional distress is sufficient to satisfy the good cause requirement of Rule 

35, M.R.Civ.P. 

¶8 Rule 35, M.R.Civ.P., provides: 

Rule 35. Physical and mental examination of persons.

Rule 35(a). Order for examination. 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 suitably 

licensed or certified examiner or to produce for examination the person in the 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. 

Rule 35(b). Report of examiner. (1) If requested by the party against whom an 

order is made under Rule 35(a) or the person examined, the party causing the 

examination to be made shall deliver to the requesting party a copy of the detailed 

written report of the examiner setting out the examiner's findings, including results 

of all tests made, diagnosis 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 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (3 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

party, the party shows that the party is unable 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 an examiner fails or refuses to make a report the court may exclude the 

examiner's testimony if offered at the trial. 

(2) Waiver of privilege. Either by (1) requesting and obtaining a report of the 

examination ordered as provided herein, or by taking the deposition of the examiner, 

or by (2) commencing an action or asserting a defense which places in issue the 

mental or physical condition of a party to the action, the party examined or a party 

to the action waives any privilege the party may have in that action or any other 

action involving the same controversy, regarding the testimony of every person who 

has treated, prescribed, consulted, or examined or may thereafter treat, consult, 

prescribe or examine, such party in respect to the same mental or physical condition; 

but such waiver shall not apply to any treatment, consultation, prescription or 

examination for any mental or physical condition not related to the pending action. 

Upon motion seasonably made, and upon notice and for good cause shown, the 

court in which the action is pending, may make an order prohibiting the introduction 

in evidence of any such portion of the medical record of any person as may not be 

relevant to the issues in the pending action. 

(3) This subdivision applies to examinations made by agreement of the parties, 

unless the agreement expressly provides otherwise. This subdivision does not 

preclude discovery of a report of an examiner or the taking of a deposition of the 

examiner in accordance with the provisions of any other rule. 

¶9 The District Court relied upon the United States Supreme Court decision in 

Schlangenhauf v. Holder (1964), 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152, in 

concluding that the pleadings themselves can establish good cause for ordering a mental 

examination. Schlangenhauf is the seminal decision concerning Rule 35 examinations. 

Rule 35(a), Fed.R.Civ.P., is the same as Rule 35(a), M.R.Civ.P. We adopted the 

Schlangenhauf standard for Rule 35, M.R.Civ.P., examinations in Marriage of Binsfield

(1995), 269 Mont. 336, 888 P.2d 889. In Schlangenhauf, the Supreme Court stated: 

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, c.f. Sibbach v. Wilson & Co., supra, places that mental or physical injury 

clearly in controversy and provides the defendant with good cause for an 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (4 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

examination to determine the existence and extent of such asserted injury. 

Schlangenhauf, 379 U.S. at 119. 

¶10 Winslow relies on Neal v. Siegel-Robert, Inc. (E.D. Mo. 1996), 171 F.R.D. 264, for 

the proposition that the mere fact that a plaintiff has requested emotional distress damages 

does not necessarily mean that a party has placed his mental capacity in controversy. As 

the District Court observed, however, the plaintiff in Neal had referred to emotional 

distress only as a component of general damages. In contrast, Winslow, in count three of 

his amended complaint, has made a specific claim for negligent or intentional infliction of 

emotional distress. 

¶11 Winslow also relies on our decision in Binsfield. Binsfield, however, is 

distinguishable. Binsfield was a dissolution proceeding in which the husband contended 

that the wife was not mentally capable, and thus he requested an independent medical 

examination. The Court determined that the husband had failed to demonstrate the wife's 

mental condition was "in controversy" and thus a Rule 35, M.R.Civ.P., examination was 

not warranted. Unlike the present case, there was no independent "Sacco" tort claim 

involved. 

¶12 In Sacco v. High Country Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 

411, we held that an independent cause of action for negligent infliction of emotional 

distress will arise under circumstances where serious or severe emotional distress to the 

plaintiff was the reasonably foreseeable consequence of the defendant's negligent act or 

omissions. Liability only arises when the emotional distress is "extreme." We adopted that 

same standard for intentional infliction of emotional distress claims and reaffirmed the 

requirement that the emotional distress suffered must be "serious or severe." Sacco, 271 

Mont. at 237, 896 P.2d at 428. In deciding Sacco, we reasoned that with "today's more 

advanced state of medical science, technology and testing techniques," there is better 

capability to determine whether a party truly suffers emotional distress, thus helping avoid 

a floodgate of emotional distress claims. Sacco, 271 Mont. at 233, 896 P.2d at 425.

¶13 Thus, given that Winslow has made an independent "Sacco" claim for infliction of 

emotional distress, and given our specific reliance in Sacco on the advanced state of 

medical testing techniques, we conclude that the pleading of the independent tort claim is 

sufficient to satisfy the "good cause" requirement in Rule 35, M.R.Civ.P. Accordingly, we 

affirm the District Court's determination that good cause has been shown for ordering a 

mental evaluation. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (5 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

¶14 Winslow also contends that the court erred in not setting forth the manner, condition 

and scope of the examination prior to the examination. It is at this conjuncture that 

Winslow's suspicions about the purpose of the examination come into play. Winslow is 

correct that Rule 35, M.R.Civ.P., does require that the court "shall specify the time, place, 

manner, conditions and scope of the examination and the person or persons by whom it is 

to be made." He is also correct that the court's present orders do not comply with this 

requirement of specificity. In addressing Winslow's concerns about the scope of the 

intended examination, the District Court held: 

At this point, Dr. Stratford has not conducted the examination and the Court has no 

way of knowing what his proposed testimony will be. Furthermore, the Court does 

not know what evidence Winslow will offer in support of his claim for the negligent 

or intentional infliction of emotional distress. Thus, it is premature for the Court to 

determine the parameters of Dr. Stratford's testimony. 

¶15 The District Court essentially adopted an "after the fact" approach in which it would 

address the parameters of the testimony once it had been presented. This approach, 

however, is not consonant with the spirit of the Rule. Recognizing the difficulties of ruling 

on anticipated testimony, the Rule nonetheless requires that the court, at least in a general 

sense, define the scope of the examination. For example, in Mapes, we limited the scope 

of discovery of plaintiff's psychological records by allowing defendant to depose the 

psychologist to determine whether, in his opinion, plaintiff suffered from any cognitive 

deficit caused by any factor, other than the conditions of his employment, as alleged in his 

complaint. Further, as to any claims of psychological damage, the defendant could also 

inquire as to whether plaintiff suffered from any emotional or psychological problems 

resulting from any factor other than the causes alleged in his complaint. 

¶16 In the present case, MRL posits that Dr. Stratford should be allowed to determine the 

existence and extent of the alleged emotional distress injuries. We note that MRL's 

proposed scope of the examination is consistent with the United States Supreme Court's 

holding in Schlangenhauf wherein the Court approved Rule 35 examinations "to determine 

the existence and extent of such asserted injury." Schlangenhauf, 379 U.S. at 119. As in 

Mapes, Winslow can also be examined to determine whether he suffers from any 

emotional or mental problems which are the result of factors other than the causes alleged 

in his complaint. In addressing Winslow's asserted emotional distress injuries, Dr. 

Stratford will presumably arrive at an opinion as to the existence and extent of the injuries. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (6 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

Although an examining physician may not invade the province of the jury by testifying 

that a claimant is or is not truthful, to the extent that the physician's findings confirm or 

conflict with the claimant's assertions, his or her testimony may assist the jury in weighing 

the claimant's credibility. Benjamin v. Torgerson, 1999 MT 216, 295 Mont. 528, 985 P.2d 

734. 

¶17 This matter is remanded to the District Court for entry of an order, consistent with the 

above discussion of Rule 35, M.R.Civ.P., specifying the "time, place, manner, conditions 

and scope" of the examination.

¶18 MRL's request for a stay of District Court proceedings pending resolution of the 

petition for writ of supervisory control is denied as moot. 

DATED this 18th day of December, 2001. 

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ JIM RICE

Justice Jim Regnier did not participate in the above matter. 

Justice Terry N. Trieweiler dissenting.

¶19 I concur with the majority's conclusion that this is an appropriate case for the exercise 

of supervisory control. I also concur with the Court's conclusion that the District Court's 

order lacked the specificity regarding the parameters for a psychiatric exam that is 

required by Rule 35, M.R.Civ.P.

¶20 I dissent from the majority's conclusion that Rule 35, as interpreted by the United 

States Supreme Court, in Schlagenhauf v. Holder (1964), 379 U.S. 104, authorizes a 

mental examination in this case. 

¶21 I agree with the interpretation and application of Schlagenhauf by the Supreme Court 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (7 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

of Texas in Coates v. Whittington (Tex. 1988), 758 S.W.2d 749. In Coates, the plaintiff 

claimed damages for mental anguish she experienced as a result of physical injuries she 

alleged were caused by the defendant's product. The trial court ordered that she undergo a 

mental examination pursuant to a Texas rule of civil procedure derived from the same 

federal Rule 35 which was interpreted by the United States Supreme Court in 

Schlagenhauf. However, the Texas Supreme Court concluded after considering 

Schlagenhauf that the trial court abused its discretion by ordering Coates to submit to a 

mental examination. The Texas court gave the following explanation for its decision:

Drackett maintains that Coates' mental condition is in controversy because she has 

pleaded for mental anguish damages. In support of its position, Drackett relies on 

Schlagenhauf, 379 U.S. at 119, 85 S.Ct. at 243, where the United States Supreme 

Court stated:

A plaintiff in a negligence action who asserts mental or physical injury . . . places 

that mental or physical injury in controversy and provides the defendant with good 

cause for an examination to determine the existence and extent of such asserted 

injury.

In Schlagenhauf, however, the court also warned that sweeping examinations of a 

party who has not affirmatively put his mental condition in issue may not be 

routinely ordered simply because the party brings a personal injury action and 

general negligence is alleged. Id. at 121, 85 S.Ct. at 244. Further, federal courts that 

have applied Rule 35 in light of Schlagenhauf have consistently distinguished 

"mental injury" that warrants a psychiatric evaluation from emotional distress that 

accompanies personal injury. Compare Anson v. Fickel, 110 F.R.D. 184, 186 (N.D.

Ind. 1986) (mental condition is in controversy when plaintiff claims mental 

problems that required confinement in a psychiatric hospital) and Love v. 

Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298-99 (E.D.Pa. 1983) (mental 

condition is in controversy when plaintiff claims severe emotional distress and seeks 

to prove damages through testimony of psychiatrist) with Cody v. Marriott Corp., 

103 F.R.D. 421, 423 (D.Mass. 1984) (mental condition is not in controversy when 

plaintiff claims emotional distress and does not claim a psychiatric disorder 

requiring psychiatric or psychological counseling).

In her suit against Drackett, Mrs. Coates asserts that she has suffered the type of 

emotional distress that typically accompanies a severe second degree burn and 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (8 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

permanent scarring. In her deposition, she described her mental anguish as feelings 

of embarrassment and self-consciousness because the scar is ugly and noticeable in 

public. She is not alleging a permanent mental injury nor any deep seated emotional 

disturbance or psychiatric problem. Mrs. Coates' mental anguish claim is, therefore, 

for the emotional pain, torment, and suffering that a plaintiff who has been burned 

and scarred would experience in all reasonable probability. Compare Moore v. 

Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). Further, the record reflects that Mrs. 

Coates has not sought any type of psychiatric treatment as a result of the incident 

and, equally important, does not propose to offer psychiatric or psychological 

testimony to prove her mental anguish at trial.

To permit Drackett to compel a mental examination because Mrs. Coates has 

claimed mental anguish damages would open the door to involuntary mental 

examinations in virtually every personal injury suit. Rule 167a was not intended to 

authorize sweeping probes into a plaintiff's psychological past simply because the 

plaintiff has been injured and seeks damages for mental anguish as a result of the 

injury. Plaintiffs should not be subjected to public revelations of the most personal 

aspects of their private lives just because they seek compensation for mental anguish 

associated with an injury.

Coates, 758 S.W.2d at 751-52.

¶22 In Schlagenhauf, the Supreme Court concluded that where a person alleges "mental 

injury," that person's mental condition is in controversy and Rule 35 is applicable. 

Schlagenhauf, 379 U.S. at 119. However, there is no mental injury alleged in this case. 

"Injury" infers a diagnosis which requires expert opinion and treatment. Plaintiff intends to 

call no expert witness for purposes of providing a diagnosis and has received no treatment 

for his mental distress. As in Coates, Winslow alleges mental distress that typically 

accompanies loss of a job and the inability to find comparable employment. When asked 

to explain his emotional distress claim, he testified that he is irritable and upset because of 

lost income, loss of insurance coverage, the inability to make house payments and his 

inability to find other employment. It doesn't take an expert to evaluate his claim for 

damages based on these experiences. The reasonableness of his claim is well within the 

comprehension of the average juror.

¶23 The common sense approach taken by the Texas Supreme Court is especially 

preferable to the majority's opinion in light of the strict constitutional right to privacy 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (9 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

found in the Montana Constitution at Article II, Section 10, and our observation in State ex 

rel. Mapes v. District Court (1991), 250 Mont. 524, 532, 822 P.2d 91, 96, that the 

"psychiatric examination is particularly invasive of an individual's right to privacy. It is an 

extraordinary form of discovery which is permitted under Rule 35 only when the plaintiff's 

mental condition is in controversy, and then only when good cause has been 

shown." (Emphasis added.)

¶24 I would conclude that where damages for mental distress are claimed without an 

allegation of "mental injury," good cause has not been established for the invasive process 

of a psychiatric examination.

¶25 The majority infers there is a difference between ordinary claims of mental distress 

and direct actions for damages based on mental distress when "serious" mental distress 

must be proven. However, that distinction is irrelevant pursuant to Schlagenhauf and its 

progeny as pointed out by the Texas Supreme Court. The issue is whether mental injury 

has been alleged, not whether the mental distress claimed is minor or serious.

¶26 The reasoning in the majority opinion opens a Pandora's Box for the invasion of 

individual privacy in the average personal injury case. For example, where mental distress 

is alleged as a result of physical injury and because of the severity of the physical injury 

the mental distress will also necessarily be severe, does the majority opinion mean that 

psychiatric examinations of the plaintiff are now authorized even though no independent 

claim for intentional or negligent infliction of emotional distress has been alleged? I don't 

think that's the majority's intention but it would be hard to argue with that application of 

its decision. If that is in fact how its decision is to be applied, the potential for harassment 

of injured victims who seek compensation for injuries caused by the negligence of others 

is only limited by the defendant's litigation budget.

¶27 The majority opinion is a bad result not warranted by any reasonable interpretation of 

the "good cause" requirement found at Rule 35, M.R.Civ.P. For these reasons, I dissent 

from the majority's conclusion that based on the facts in this case the District Court did not 

abuse its discretion when it authorized a mental examination of the petitioner, Gary 

Winslow.

/S/ TERRY N. TRIEWEILER

Justice Patricia O. Cotter joins in the foregoing dissent.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (10 of 11)3/23/2007 4:04:30 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm

/S/ PATRICIA COTTER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/01-741%20Opinion.htm (11 of 11)3/23/2007 4:04:30 PM