A pedestrian was injured in a hit and run accident. She suffered severe injuries and allegedly developed chronic pain syndrome. She filed a claim with her insurance company under her uninsured motorist coverage for her past and future medical expenses and for physical and emotional pain, suffering, and anxiety associated with the physical injuries she sustained in the accident.
A doctor for the insurance company examined the woman and suggested that her chronic pain may be caused or exacerbated by her preexisting mental health issues. The insurance company filed a motion under Rule 35 to require the woman to submit to a psychological examination. The woman argued she should not be subject to a psychological examination because she was not asserting an independent tort claim for negligent infliction of emotional distress and had not placed her mental condition in controversy. The trial court granted the insurer’s motion and ordered the woman to submit to an independent psychological examination. The woman petitioned for a writ of supervisory control to vacate the trial court’s order.
The Supreme Court of Montana issued a writ of supervisory control and vacated the trial court’s order. A court may issue a writ of supervisory control when (1) urgency or emergency factors make the normal appeal process inadequate, (2) the case involves purely legal questions, and (3) in a civil case, the district court is proceeding under a mistake of law causing a gross injustice, or constitutional issues of state-wide importance are involved. Here, the normal appeal process would be inadequate because it could not undo the damage to the woman's privacy right caused by an unwarranted psychological examination. The issue of whether a psychological examination may be ordered in these circumstances is a question of law. The trial court's order constitutes a mistake of law causing a gross injustice.
A plaintiff's claim for general emotional distress damages is not a sufficient basis for ordering a mental examination. Here, the plaintiff made a general claim for emotional pain, suffering and anxiety associated with her physical injuries from the accident. This claim, without more, cannot form the basis for ordering a mental examination.
See: Lewis v. Montana Eighth Judicial Dist. Court, 2012 WL 3965070 (Mont., September 11, 2012) (not designated for publication).