The Utah Supreme Court has approved changes to Rule 35 that eliminate some troublesome issues that arose after the November 2011 amendments. (See my earlier blog entries for more information.)
The amended rule makes it clear that a report is required from all examiners, whether or not they will be called as experts at trial. Those reports are due within 60 days of the examination, or 7 days before the close of fact discovery, whichever is sooner.
The amended Committee Note tells you all you need to know:
“A report must be provided for all examinations under this rule. The Rule 35 report is expected to include the same type of content and observations that would be included in a medical record generated by a competent medical professional following an examination of a patient, but need not otherwise include the matters required to be included in a Rule 26(a)(4) expert report. If the examiner is going to be called as an expert witness at trial, then the designation and disclosures under Rule 26(a)(4) are also required, and the opposing party has the option of requiring, in addition to the Rule 35(b) report, the expert’s report or deposition under Rule 26(a)(4)(C). The rule permits a party who furnishes a report under Rule 35 to include within it the expert disclosures required under Rule 26(a)(4) in order to avoid the potential need to generate a separate Rule 26 (a)(4) report later if the opposing party elects a report rather than a deposition. But submitting such a combined report will not limit the opposing party’s ability to elect a deposition if the Rule 35 examiner is designated as an expert.”
These changes are effective on May 1st.
