In Hawaii personal injury cases, an issue that is often in dispute is the existence and severity of the plaintiff’s physical injuries. Often, the best source of evidence of the plaintiff’s injuries is the plaintiff’s own medical records. In certain cases, a party will want to have an independent medical professional examine the plaintiff. These examinations are called Independent Medical Examinations, or IMEs. Rule 35 of the Hawaii Rules of Civil Procedure govern IMEs. HRCP Rule 35 provides as follows:
Rule 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS.
(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.
HRCP Rule 35(a).
In order for a defendant to obtain an order compelling a plaintiff to submit to an IME, the defendant must demonstrate (1) that the plaintiff’s mental or physical condition is “in controversy” and (2) that there is “good cause” for the Court to order the IME. Schlagenhauf v. Holder, 379 US 14, 118 (1964). Even where the party seeking the order compelling the IME has demonstrated (1) that plaintiff’s medical or physical condition is “in controversy” and (2) that there is “good cause,” “an order for the physical or mental examination of a party is not granted as of right and when the matter is contested, it is addressed to the sound discretion of the trial court.” Great West Life Assurance Co. v. Levithan, 153 F.R.D. 74, 76 (E.D. Pa. 1994).