The opinion
KILEY, Circuit Judge
(dissenting).
I respectfully dissent.
I agree with the majority opinion that petitioner is a “party” subject to Rule 35. I have some doubt as to whether petitioner’s eyes and mentality are “in controversy” within the meaning of the rule.
But my point of departure with the majority opinion is with respect to the “good cause” requirement of the rule.
In persuasive dictum in Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921, 924 (4th Cir. 1962), Judge Sobeloff said:
“There appear to be adequate policy reasons for imposing the good cause requirement in Rules 34 and 35. Under Rule 35, the invasion of the individual’s privacy by a physical or mental examination is so serious that a strict standard of good cause, supervised by the district courts, is manifestly appropriate.”
The dictum expresses my view.
When the original order was entered, petitioner was not a party, and was made a party only by the later cross-complaint of National Lead Company. The second order issued upon motions merely stating that petitioner was involved in a similar accident while driving a Greyhound bus, that in the instant collision the lights of the tractor-trailer unit were visible from three-fourths to one-half mile, that petitioner saw the red lights of the truck for a period of ten to fifteen seconds pri- or to impact, and neither reduced his speed nor altered his course; and that unless the examinations were ordered, *52 “defendants will be without means to properly present evidence on this issue,” and “no one will be able to testify upon this important issue.”
No hearing was held to inquire into these statements so as to form a sound basis for subjecting petitioner to the examinations. A brief hearing might have indicated that there is an adequate alternate method of making proof of petitioner’s physical and mental condition; and that the examinations sought now would not shed light on his condition at the time of the accident more than a year ago. On the other hand, the hearing might indicate substantial merit in the grounds urged for the examination order. In either event, the inquiry would establish an adequate basis for exercising the court’s discretion as to whether or not the order ought to issue. The record here discloses no adequate basis for discretion.
This court will issue a writ of mandamus where it finds gross error amounting to an abuse of discretion, as in Chicago, Rock Island and Pacific Railroad Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955). In my view, on what the district court had before it, there was a gross error amounting to an abuse of discretion committed with respect to ordering the nine examinations, particularly the mental tests.
It is clear from reading Professor Wigmore that he is talking about personal injury cases in 8 Wigmore, Evidence § 2220(F) (McNaughton rev. 1961), and the need for preventing fraud through concealment of the true nature of one’s injury. He quotes at length from Justice Schaefer’s opinion in People ex rel. Noren v. Dempsey, 10 Ill.2d 288, 292-295 , 139 N.E.2d 780 (1957), where the Justice is speaking about a plaintiff in a personal injury case. Justice Schaefer in that case says that a person claiming damages puts his physical condition in issue and it becomes a fact to be proved, like the fact of the impact in that case. Petitioner did not put his physical and mental condition in issue in the case at bar. These authorities do not compel denial of the writ.
It seems to me the constitutional right of personal privacy should not be transgressed in search for truth under Rule 35 in civil cases until the trial court has by inquiry established a sufficient basis upon which to exercise discretion as to whether an order for physical and mental examinations is the only adequate method of reaching the truth about a matter in controversy and whether the truth sought is relevant. That was not done here.