Schlagenhauf v. Holder/Dissent Douglas

Mr. Justice DOUGLAS, dissenting in part.

While I join the Court in reversing this judgment, I would, on the remand, deny all relief asked under Rule 35.

I do not suppose there is any licensed driver of a car or a truck who does not suffer from some ailment, whether it be ulcers, bad eyesight, abnormal blood pressure, deafness, liver malfunction, bursitis, rheumatism, or what not. If he or she is turned over to the plaintiff's doctors and psychoanalysts to discover the cause of the mishap, the door will be opened for grave miscarriages of justice. When the defendant's doctors examine plaintiff, they are normally interested only in answering a single question: did plaintiff in fact sustain the specific injuries claimed? But plaintiff's doctors will naturally be inclined to go on a fishing expedition in search of anything which will tend to prove that the defendant was unfit to perform the acts which resulted in the the plaintiff's injury. And a doctor for a fee can easily discover something wrong with any patient-a condition that in prejudiced medical eyes might have caused the accident. Once defendants are turned over to medical or psychiatric clinics for an analysis of their physical well-being and the condition of their psyche, the effective trial will be held there and not before the jury. There are no lawyers in those clinics to stop the doctor from probing this organ or that one, to halt a further inquiry, to object to a line of questioning. And there is no judge to sit as arbiter. The doctor or the psychiatrist has a holiday in the privacy of his office. The defendant is at the doctor's (or phychiatrist's) mercy; and his report may either overawe or confuse the jury and prevent a fair trial.

The Court in Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479, was divided when it came to submission of a plaintiff to a compulsory medical examination. The division was not over the constitutional power to require it but only as to whether Congress had authorized a rule to that effect. I accept that point as one governed by stare decisis. But no decision that when a plaintiff claims damages his 'mental or physical condition' is 'in controversy,' within the meaning of Rule 35, governs the present case. The plaintiff by suing puts those issues 'in controversy.' A plaintiff, by coming into court and asserting that he has suffered an injury at the hands of the defendant, has thereby put his physical or mental condition 'in controversy.' Thus it may be only fair to provide that he may not be permitted to recover his judgment unless he permits an inquiry into the true nature of his condition.

A defendant's physical and mental condition is not, however, immediately and directly 'in controversy' in a negligence suit. The issue is whether he was negligent. His physical or mental condition may of course be relevant to that issue; and he may be questioned concerning it and various methods of discovery can be used. But I balk at saying those issues are 'in controversy' within the meaning of Rule 35 in every negligence suit or that they may be put 'in controversy' by the addition of a few words in the complaint. As I have said, Sibbach proceeded on the basis that a plaintiff who seeks a decree of a federal court for his damages may not conceal or make difficult the proof of the claim he makes. The defendant, however, is dragged there; and to find 'waiver' of the 'inviolability of the person' (Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, 11 S.Ct. 1000, 1001, 35 L.Ed. 734) is beyond reality.

Neither the Court nor Congress up to today has determined that any person whose physical or mental condition is brought into question during some lawsuit must surrender his right to keep his person inviolate. Congress did, according to Sibbach, require a plaintiff to choose between his privacy and his purse; but before today it has not been thought that any other 'party' had lost this historic immunity. Congress and this Court can authorize such a rule. But a rule suited to purposes of discovery against defendants must be carefully drawn in light of the great potential of blackmail.

The Advisory Committee on Rules for Civil Procedure in its October 1955 Report of Proposed Amendments to the Rules of Civil Procedure for the United States District Courts proposed that Rule 35 be broadened to include situations where the mental or physical condition or 'the blood relationship' of a party, or 'of an agent or a person in the custody or under the legal control of a party,' is 'in controversy.' We did not adopt that Rule in its broadened form. But concededly the issue with which we are now concerned was not exposed. It needs, in my opinion, full exposure so that if the Rule is to be applied to defendants as well as to plaintiffs, safeguards can be provided in the Rule itself against the awful risks of blackmail that exist in a Rule of that breadth.

This is a problem that we should refer to the Civil Rules Committee of the Judicial Conference so that if medical and psychiatric clinics are to be used in discovery against defendants whether in negligence, libel, or contract cases-the standards and conditions will be discriminating and precise. If the bus driver in the instant case were not a defendant, could he be examined by doctors and psychiatrists? See Kropp v. General Dynamics Corp., D.C., 202 F.Supp. 207; 13 Buffalo L.Rev. 623 (1964). Lines must in time be drawn; and I think the new Civil Rules Committee is better equipped than we are to draw them initially.