Schlagenhauf v. Holder/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice CLARK joins, concurring in part and dissenting in part.

I agree with the Court that under Rule 35(a): (1) a plaintiff and a defendant have precisely the same right to obtain a court order for physical or mental examination of the other party or parties to a lawsuit; (2) before obtaining such an order it must be shown that physical or mental health is 'in controversy' as to a relevant and material issue in the case; and (3) such an order 'may be made only on motion for good cause shown' after 'notice to the party to be examined and to all other parties.' Unlike the Court, however, I think this record plainly shows that there was a controversy as to Schlagenhauf's mental and physical health and that 'good cause' was shown for a physical and mental examination of him, unless failure to deny the allegations amounted to an admission that they were true. While the papers filed in connection with this motion were informal, there can be no doubt that other parties in the lawsuit specifically and unequivocally charged that Schlagenhauf was not mentally or physically capable of operating a motor bus at the time of the collision, and that his negligent operation of the bus caused the resulting injuries and damage. The other parties filed an affidavit based on depositions of Schlagenhauf and a witness stating that Schlagenhauf, driving the bus along a four-lane highway in what apparently was good weather, had come upon a tractor-trailer down the road in front of him. The tractor-trailer was displaying red lights visible for at least half a mile, and Schlagenhauf admitted seeing them. Yet after coming in sight of the vehicle Schlagenhauf continued driving the bus in a straight line, without slowing down, for a full 10 or 15 seconds until the bus struck the tractor-trailer. Schlagenhauf admitted also that he had been involved in the very same kind of accident once before. Schlagenhauf has never at any time in the proceedings denied and he does not even now deny the charges that his mental and physical health and his eyes and vision were impaired and deficient.

In a collision case like this one, evidence concerning very bad eyesight or impaired mental or physical health which may affect the ability to drive is obviously of the highest relevance. It is equally obvious, I think, that when a vehicle continues down an open road and smashes into a truck in front of it although the truck is in plain sight and there is ample time and room to avoid collision, the chances are good that the driver has some physical, mental or moral defect. When such a thing happens twice, one is even more likely to ask, 'What is the matter with that driver? Is he blind or crazy?' Plainly the allegations of the other parties were relevant and put the question of Schlagenhauf's health and vision 'in controversy.' The Court nevertheless holds that these charges were not a sufficient basis on which to rest a court-ordered examination of Schlagenhauf. It says with reference to the charges of impaired physical or mental health that the charges are 'conclusory.' I had not thought there was anything strange about pleadings being 'conclusory'-that is their function, at least since modern rules of procedure have attempted to substitute simple pleadings for the complicated and redundant ones which long kept the common-law courts in disrepute. I therefore cannot agree that the charges about Schlagenhauf's health and vision were not sufficient upon which to base an order under Rule 35(a), particularly since he was a party who raised every technical objection to being required to subject himself to an examination but never once denied that his health and vision were bad. In these circumstances the allegations here should be more than enough to show probable cause to justify a court order requiring some kind of physical and mental examination.

While I dissent from the Court's holding that no examination at all was justified by this record, I agree that the order was broader than required. I do so in part because of the arguments made in the dissent in Sibbach v. Wilson & Co., 312 U.S. 1, 16, 61 S.Ct. 422, 427, 85 L.Ed. 479, that physical examinations of people should be ordered by courts only when clearly and unequivocally required by law. By the same reasoning I think the courts should exercise great restraint in administering such a law once it has been enacted, as Sibbach held it had been when Rule 35 was approved. For this reason I agree to the Court's judgment remanding the case in order to give Schlagenhauf, if he now chooses, and the other parties an opportunity to produce any relevant facts to aid the District Judge in refashioning an order which will be neither too broad nor too narrow to give all the parties the rights which are theirs.