Rule 35.Physical and mental examinations

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 35 lets a court order a party -- or a person in that party's custody or control -- to submit to a physical or mental examination when their condition is in genuine controversy, requires good cause and notice before the order issues, and gives both sides a right to obtain the examiner's report, with the examined party waiving privilege over related testimony by requesting it.

Full Text of Rule 35

Text sizeJump to: (a) (b)

(a) Order for an examination.

(1) In general. The court where the action is pending may order a party whose mental or physical condition—including blood group —is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

(2) Motion and notice; contents of the order. The order:

(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and

(B) shall specify the time, place, manner, conditions and scope of the examination, as well as the person or persons who will perform it.

(b) Examiner’s report.

(1) Request by the party or person examined. The party who moved for the examination shall, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.

(2) Contents. The examiner's report shall be in writing and ‘set out in detail the examiner's findings, including diagnoses, conclusions and the results of any tests.

(3) Request by the moving party. After delivering the reports, the party who moved for the examination may request—and is entitled to receive—from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.

(4) Waiver of privilege. By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have—in that action or any other action involving the same controversy—concerning testimony about all examinations of the same condition.

(5) Failure to deliver a report. The court on motion may order— on just terms—that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.

(6) Scope. This subdivision (b) applies also to an examination made by the parties' agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner's report or deposing an examiner under other rules.

End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

When a party's physical or mental condition is at issue in a case — a personal injury claim, for instance — Rule 35 lets the court order that party to be examined by a licensed or certified examiner. The same authority reaches someone in that party's custody or legal control, like a minor or ward. But the court can't order an examination on request alone: it takes a motion showing good cause, notice to every party and to the person being examined, and an order specifying the time, place, manner, conditions, scope, and examiner.

Once the exam happens, the party who moved for it has to turn over a copy of the examiner's report — and any earlier reports on the same condition — if the examined party or the party against whom the order issued asks for it. Asking for that report cuts both ways: the moving party then gets to request the examined party's own earlier and later reports on the same condition, and requesting or obtaining an examiner's report (or deposing the examiner) waives any privilege the examined party had over testimony concerning every examination of that same condition, in that case or any other one about the same controversy.

If a party won't turn over a report it owes, the court can order it produced on just terms, or exclude the examiner's testimony at trial if it still isn't provided.

Frequently Asked Questions

When can a court order a party to undergo a physical or mental examination?

When that party's physical or mental condition is in genuine controversy in the case, and the moving party shows good cause — the order requires notice to all parties and the person to be examined.

Can I get a copy of the other side's examiner's report?

Yes, on request, along with copies of any earlier reports on the same condition — and by requesting and obtaining that report, the examined party waives privilege over testimony about every examination of that condition.

What happens if a party won't turn over a required examination report?

The court can order it produced on just terms, and if it's still not provided, the court may exclude the examiner's testimony at trial.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 35). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source

Also known as: independent medical examinationIME West Virginiaphysical or mental examination order