Some defense lawyers took this comment to mean that a medical examiner need only produce an expert report as required under rule 26, and not the “examination” report that before 2011 was standard for all rule 35 exams. In other words, if the defense didn’t decide to use him/her as an expert, no report would be produced, and that examiner’s findings and conclusion were kept secret. Is this what the rule now means?
The meeting minutes from the April 27, 2016 meeting of the committee explain the positions of representatives of the defense bar (David Bridge) and plaintiffs’ bar (Pete Summerill).
At its June 22 meeting the Advisory Committee voted to clarify the rule by requiring a report be produced within 28 days of every rule 35 examination. If the defense intends to use the examiner as an expert, then a full rule 26 report will also be required. (The Rule 35 report could suffice, if it also meets the Rule 26 elements.)
Here are excerpts from the meeting materials for June 22, 2016 showing what the amendment will look like. (The minutes of that meeting have not yet been published.) The proposed amendment will circulate to the bar for comment in the Fall and, if approved by the Supreme Court, come into effect in early 2017.