The Defense Medical Exam: What Minn. R. Civ. P. 35 Actually Says

Search the text of Minn. R. Civ. P. 35 for the word “independent.” It isn’t there. The rule is titled “Physical, Mental, and Blood Examination of Persons,” and its first subdivision is “Order of Examinations.” The word “independent” gets into Minnesota practice through a different rule entirely, the scheduling rule, Minn. Gen. R. Prac. 111.03(b)(4), which authorizes the court to set “[a] deadline for completing any independent physical, mental or blood examination pursuant to Minn. R. Civ. P. 35.”

It’s a small thing, and it’s also the whole point. The examination isn’t independent. It isn’t an appointment. And it doesn’t happen because the defense is entitled to one. It happens because a court entered an order, on a motion, on a showing, and that order is supposed to rein it in.

Here’s the sentence that does the work. Minn. R. Civ. P. 35.01:

In an action in which the physical or mental condition or the blood relationship of a party, or of an agent of a party, or of a person under control of a party, is in controversy, the court in which the action is pending may order the party to submit to, or produce such agent or person for a physical, mental, or blood examination by a suitably licensed or certified examiner. The order may be made only on motion for good cause shown and upon notice to the party or person to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made.

Four pieces carry the weight: the condition must be in controversy; the order issues only on a motion for good cause shown; the person to be examined gets notice; and the order shall specify manner, conditions, scope, and examiner.

What does the defense have to show to get an examination?

Two separate things. Minnesota’s rule uses the same two terms as the federal rule, “in controversy” and “good cause shown”, and each one needs its own affirmative showing.

There doesn’t appear to be a Minnesota appellate decision quoted here that construes that language. So take what follows for exactly what it is: the United States Supreme Court reading the federal rule, whose relevant sentence is nearly word-for-word Minnesota’s. In Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Court held:

They are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.

And:

Obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant.

The Court also gave the flip side, and every personal injury plaintiff reading this should know it:

A plaintiff in a negligence action who asserts mental or physical injury … places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.

Two cautions before anyone leans on that. First, Schlagenhauf construes Fed. R. Civ. P. 35, not Minnesota’s rule. The Minnesota Advisory Committee said in 1993 that although the state amendments were “generally consistent with amendments made to Fed. R. Civ. P. 35 in 1991,” “the state and federal rules have always been somewhat different.” Second, the version of the federal rule quoted in Schlagenhauf reached only “the mental or physical condition of a party.” Minnesota’s reaches more: blood relationship, an agent of a party, and a person under control of a party.

What survives the caution is the structure. A plaintiff who pleads a bodily injury has put that injury in controversy. A plaintiff who pleads a broken wrist hasn’t put his psychiatric history in controversy just by doing that. And a defendant who wants a second examination, or one in a different specialty, is asking for a separate showing on a separate condition.

Who picks the doctor?

Not the defendant, at least not under the text. Rule 35.01 says the order “shall specify … the person or persons by whom it is made.” The examiner is a term of the court’s order. In ordinary practice the moving party proposes one and, if nobody objects, gets the one it proposed. That’s what happens when nobody objects. It isn’t an entitlement in the rule.

The examiner doesn’t have to be a physician, either. The rule says “a suitably licensed or certified examiner,” and the 1993 Advisory Committee Comment explains why:

This amendment recognizes that examination may be appropriate by, for example, a licensed psychologist, dentist, audiologist, or physical or occupational therapist.

And there’s no numerical cap in the rule. Nothing in Rule 35 limits a defendant to one examination. What limits it is the showing for each one. The movant has to establish good cause “for ordering each particular examination,” in the words of the case construing the materially identical federal language.

Can I bring my lawyer? Can I record it?

Rule 35 doesn’t say. It gives you no right to have counsel present, no right to bring a witness, and no right to make an audio or video recording. It doesn’t prohibit any of those things, either. It’s silent.

That silence matters, because the belief that a claimant may bring someone along didn’t come from nowhere. It’s in a different Minnesota statute, governing a different kind of examination. Minn. Stat. § 176.155, subd. 1(a), the workers’ compensation adverse-examination statute, provides:

The injured employee must submit to examination by the employer’s physician, if requested by the employer, and at reasonable times thereafter upon the employer’s request. Examinations shall not be conducted in hotel or motel facilities. The examination must be scheduled at a location within 150 miles of the employee’s residence unless the employer can show cause to the office to order an examination at a location further from the employee’s residence. The employee is entitled upon request to have a personal physician or unpaid witness present at any such examination. Each party shall defray the cost of that party’s physician or witness.

Two of those words are new. Laws 2026, ch. 103, § 11 amended the subdivision to insert “unpaid” before “witness” and “or witness” after “physician,” effective the day following final enactment. The governor signed the chapter on May 18, 2026, so the amended text has governed since May 19, 2026. Before the amendment the sentence read “a personal physician or witness present,” and the cost sentence ended at “that party’s physician.” The right to have someone in the room survives. What changed is that the witness can’t be paid for it, and the party who brings a witness bears that witness’s cost.

Nothing like that sentence is in Rule 35. A civil personal injury plaintiff who assumes the workers’ compensation rule follows her into district court is assuming something the rule doesn’t provide.

What Rule 35 gives you instead is process. The order issues “only on motion … and upon notice to the party or person to be examined,” and it “shall specify the time, place, manner, conditions, and scope.” Conditions aren’t a right the rule hands the examinee. They’re a required part of the order, and the motion is your chance to be heard on them. A party who wants a term (a limit on duration, a ban on questions about liability, a restriction on psychometric testing, a location, an observer) asks the court for it in response to the motion. A party who lets the motion go unopposed gets whatever the proposed order says.

Three Minnesota regimes, three different answers

This area confuses people for a simple reason. A Minnesota injury claimant can face an adverse examination under three separate authorities, and they answer the same questions differently.

The no-fault column is the one people miss most, because it kicks in before anyone sues. Section 65B.56, subd. 1 closes with “The provisions of this section apply before and after the commencement of suit.” An examination demanded by your own no-fault carrier isn’t a Rule 35 examination and isn’t governed by Rule 35. That distinction matters most in the first months of a claim, before the framework in Minnesota no-fault basics has produced any litigation at all.

What happens if I just don’t go?

Not contempt. That’s the one sanction Minnesota’s rules expressly hold back.

Minn. R. Civ. P. 37.02(b) authorizes sanctions when a party “fails to obey an order to provide or permit discovery, including an order made pursuant to Rule 35 or 37.01”. Those include issue-establishment under (b)(1), preclusion of claims or defenses under (b)(2), and striking pleadings, staying proceedings, dismissal, or default under (b)(3). Then subsection (b)(4):

In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

So the court can’t jail you for refusing. It can dismiss your case. Rule 37.02(b) also ends with a fee-shifting sentence: the court “shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”

There’s a narrower provision for when the party ordered to produce someone else can’t deliver them. Rule 37.02(b)(5) provides for “[w]here a party has failed to comply with an order pursuant to Rule 35.01 requiring that party to produce another for examination, such orders as are listed herein in paragraphs (1), (2), and (3), unless the party failing to comply shows that that party is unable to produce such person for examination.”

The report exchange, and what asking for it costs you

This is where Rule 35 has its sharpest edges, and it’s the part plaintiffs’ counsel most often sets off without counting the cost.

The report isn’t automatic. Rule 35.02(a):

If requested by the party against whom an order is made pursuant to Rule 35.01 or by the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of a detailed written report of the examination setting out the examiner’s findings and conclusions, together with like reports of all earlier examinations of the same condition. After such request and delivery, the party causing the examination to be made shall be entitled, upon request, to receive from the party or person examined a like report of any examination, previously or thereafter made, of the same physical, mental, or blood condition. If the party or person examined refuses to deliver such report, the court, on motion and notice, may make an order requiring delivery on such terms as are just, and, if an examiner fails or refuses to make such a report, the court may exclude the examiner’s testimony if offered at the trial.

Four mechanics, in order:

1. Someone has to ask. Nothing gets delivered unless the examinee or the party against whom the order was made asks. The person examined may ask even where the party is someone else.
2. The delivery includes history. Not just this report but “like reports of all earlier examinations of the same condition.”
3. Reciprocity attaches on delivery. Once the report is requested and delivered, the examining party may demand “a like report of any examination, previously or thereafter made, of the same physical, mental, or blood condition.” That obligation looks forward. A report generated months later is inside it.
4. The remedy against a silent examiner is exclusion. If the examiner won’t produce a report, “the court may exclude the examiner’s testimony if offered at the trial.”

Now the price. Rule 35.02(b):

By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the adverse party waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party or the person under the party’s control with respect to the same physical, mental, or blood condition.

Read that against the waiver a personal injury plaintiff has already made. Rule 35.03:

If at any stage of an action a party voluntarily places in controversy the physical, mental, or blood condition of that party, a decedent, or a person under that party’s control, such party thereby waives any privilege that party may have in that action regarding the testimony of every person who has examined or may thereafter examine that party or the person under that party’s control with respect to the same physical, mental, or blood condition.

The two waivers aren’t the same size. Rule 35.03’s runs “in that action.” Rule 35.02(b)’s runs “in that action or any other involving the same controversy.” A plaintiff who sues for a back injury has already given up the physician-patient privilege inside that lawsuit. That’s Minn. Stat. § 595.02, subd. 1(d), which otherwise bars a “licensed physician or surgeon, dentist, or chiropractor” from disclosing what was learned in attending the patient. Requesting and obtaining the defense examiner’s report stretches that waiver to any other proceeding involving the same controversy. So does deposing the examiner.

So here’s the answer to “what does the plaintiff waive by requesting the report”: not the privilege as to the examination; that was gone the day the complaint was filed. What changes is the scope of the waiver, which stops being confined to this case. Where a claimant has, or may have, a parallel proceeding on the same injury, the request is a decision, not a formality. That includes a workers’ compensation claim, a no-fault arbitration, an underinsured-motorist claim, or a claim against a second tortfeasor, including a provider whose treatment of the same injury may itself be actionable on its own clock (Minnesota medical malpractice deadlines). Those parallel recoveries carry their own consequences at judgment, too, and those are the subject of Minnesota’s collateral source offset.

Two more points in the text that practitioners shouldn’t assume around:

• Rule 35.02 is one of only two doors to a non-testifying expert. Minn. R. Civ. P. 26.02(e)(2) permits discovery of “facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35.02 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” If the defense examiner isn’t going to testify, Rule 35.02 is how you get the report.
• Deposing that examiner takes a court order. Rule 35.04 closes: “Depositions of treating or examining medical experts shall not be taken except upon order of the court for good cause shown upon motion and notice to the parties and upon such terms as the court may provide.” On the face of the rules, a party who wants the examiner’s deposition needs leave under Rule 35.04, and taking it triggers Rule 35.02(b)’s wider waiver. No authority cited here resolves how those two provisions fit together.

What Rule 35.04 requires once privilege is waived

Fourteen days, and an authorization. Rule 35.04 provides that when a party has waived medical privilege under Rule 35.03, that party, “within 14 days of a written request by any other party,” (a) “shall furnish to the requesting party copies of all medical reports previously or thereafter made by any treating or examining medical expert,” and (b) “shall provide written authority signed by the party of whom request is made to permit the inspection of all hospital and other medical records, concerning the physical, mental, or blood condition of such party as to which privilege has been waived.” The rule adds: “Disclosures pursuant to this rule shall include the conclusions of such treating or examining medical expert.”

Watch the boundary in (b). The authorization reaches records “as to which privilege has been waived,” not the claimant’s entire medical history. That boundary is the subject of Minnesota medical records and privacy, and it’s where an overbroad authorization does damage you can’t undo.

The 14-day period is recent, and it’s the only thing the 2019 amendment changed. The Advisory Committee said so: “The only change to this rule lengthens the 10-day period to respond to written requests to a 14-day period. This change affects only the time limit, and is not intended to have any other effect.”

Timing

Rule 35 sets no deadline. The scheduling rule does, and it deliberately treats the examination as a late-stage event. Minn. Gen. R. Prac. 111.03(b)(4) authorizes the scheduling order to set “[a] deadline for completing any independent physical, mental or blood examination pursuant to Minn. R. Civ. P. 35,” and the 1994 Advisory Committee Comment gives the reason: “The rule contemplates establishment of a separate deadline for completion of an independent medical examination because the Task Force believes that it is frequently desirable to allow such an examination to take place after the conclusion of other discovery.” The scheduling conference is where that outside date gets set, and it’s the earliest practical moment to raise the terms of the examination.

What to do

1. Read the motion, not just the notice. A Rule 35 examination takes a motion and an order. If a letter shows up scheduling an examination in a filed civil case and there’s no order, ask what authorizes it.
2. Object condition by condition. “In controversy” and “good cause” attach to each condition and each examination separately.
3. Ask for terms in your response, because the order has to contain them. Rule 35.01 says the order “shall specify the time, place, manner, conditions, and scope.” That’s the moment. There isn’t a later one.
4. Don’t assume the workers’ compensation rules apply. The right to have a personal physician or unpaid witness present is in Minn. Stat. § 176.155, subd. 1. It’s not in Rule 35.
5. Count the cost of the report request before you make it. Rule 35.02(b)’s waiver reaches “any other [action] involving the same controversy.” If there’s a parallel claim, that’s a real cost.
6. Read any medical authorization against Rule 35.04(b). It reaches records “as to which privilege has been waived.”
7. Calendar 14 days. Rule 35.04’s response period runs from the written request.

Somebody has to ask

The examination is the one defense event in a personal injury case that a plaintiff attends alone, answers questions at, and can’t see the results of unless she asks. And asking costs something. Everything about it that a plaintiff can influence gets decided on paper before it happens, in a motion the rule requires and an order the rule says must specify manner, conditions, and scope.

The rule isn’t generous. It isn’t lawless, either. It holds back contempt. It requires a showing. It makes the report obligation run both ways. And it puts the terms of the examination in a document a judge signs, which means somebody has to ask for them.

The word “independent” is a description the Minnesota scheduling rule uses and Rule 35 doesn’t. Nothing about the process makes the examiner neutral, and nothing in the rule pretends otherwise.

Madgett Law, LLC represents injured people in Minnesota personal injury litigation, including responding to Rule 35 examination motions, negotiating the terms of an examination order, handling the Rule 35.02 report exchange and its privilege consequences, and dealing with adverse examinations demanded under the no-fault act. If you’ve been notified of a defense medical examination, send us a message or call 612-470-6529.

Sources: Minn. R. Civ. P. 35 (Minnesota Office of the Revisor of Statutes, published court rules, August 7, 2026). Rule 35.01 (“Order of Examinations”) is quoted in full above, including the sentence “The order may be made only on motion for good cause shown and upon notice to the party or person to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made.” (Amended effective March 1, 1994.) Rule 35.02(a) and (b) (“Report of Findings”) are each quoted in full above; (a) is quoted through its closing clause “the court may exclude the examiner’s testimony if offered at the trial,” and (b) through its closing words “with respect to the same physical, mental, or blood condition.” Rule 35.03 (“Waiver of Medical Privilege”) is quoted in full. Rule 35.04 (“Medical Disclosures and Depositions of Medical Experts,” amended effective January 1, 2020) is quoted for its 14-day period, subsections (a) and (b), the sentence “Disclosures pursuant to this rule shall include the conclusions of such treating or examining medical expert,” and its closing sentence on depositions of treating or examining medical experts. Advisory Committee Comment — 1993 Amendment to Rule 35 (examinations “by professionals other than physicians”; “a licensed psychologist, dentist, audiologist, or physical or occupational therapist”; “the state and federal rules have always been somewhat different”). Advisory Committee Comment — 2019 Amendment to Rule 35 (“The only change to this rule lengthens the 10-day period to respond to written requests to a 14-day period.”). Rule 35 contains no reference to counsel, to a witness or observer, to recording, or to any numerical limit on the number of examinations; the text of Rules 35.01–35.04 contains no occurrence of “independent,” “counsel,” “attorney,” “recording,” “observer,” “video,” and “audio,” and exactly one occurrence of “record” — “hospital and other medical records” in Rule 35.04(b). Minn. R. Civ. P. 26.02(e)(2) (non-testifying expert discoverable “only as provided in Rule 35.02 or upon a showing of exceptional circumstances”). Minn. R. Civ. P. 37.02(b), including the introductory sentence reaching “an order made pursuant to Rule 35 or 37.01,” clauses (b)(1)–(3), clause (b)(4)’s contempt carve-out “except an order to submit to a physical or mental examination,” clause (b)(5)’s inability-to-produce defense, and the closing fee-shifting sentence — all quoted from the rule. Minn. Gen. R. Prac. 111.03(b)(4) (“A deadline for completing any independent physical, mental or blood examination pursuant to Minn. R. Civ. P. 35”) and the Advisory Committee Comment — 1994 Amendment to Rule 111 (examination “after the conclusion of other discovery”). Schlagenhauf v. Holder, 379 U.S. 104 (1964) (Caselaw Access Project, https://static.case.law/us/379/html/0104-01.html and https://static.case.law/us/379/cases/0104-01.json), quoted at 379 U.S. 118 for the “in controversy”/“good cause” affirmative-showing requirement and at 379 U.S. 119 for the negligence-plaintiff proposition. The same passage adds that the two requirements “are necessarily related,” which is why this article says each needs its own showing rather than that they are unrelated. Schlagenhauf construes Fed. R. Civ. P. 35 as it read in 1964, not Minnesota’s rule. It is cited here only because the second sentence of Minnesota’s Rule 35.01 is materially identical to the federal sentence quoted in the opinion, and the article says so; the ellipsis in the third quotation omits an internal “cf.” citation to Sibbach v. Wilson & Co. Minn. Stat. § 176.155, subd. 1(a) (revisor.mn.gov), amended by Laws 2026, ch. 103, § 11; the Revisor’s posted section text is the 2025 edition, so the amendment is taken from the session law, https://www.revisor.mn.gov/laws/2026/0/Session+Law/Chapter/103/. Section 11 inserts “unpaid” before “witness” and “or witness” after “physician,” and its effective-date clause reads in full: “This section is effective the day following final enactment.” The chapter was presented to the governor May 15, 2026 and signed May 18, 2026, so the amendment took effect May 19, 2026 and is in force. The subdivision is therefore quoted above as amended — that is, as it reads today — and the superseded pre-amendment wording is identified as superseded. Minn. Stat. § 176.155, subd. 3 (refusal to be examined; “the right to compensation may be suspended by order of the commissioner or a compensation judge, and no compensation shall be paid while the employee continues in the refusal”), cited in the comparison table only. Minn. Stat. § 65B.56, subd. 1 (2025) (no-fault cooperation and examinations; “physician or physicians selected by the obligor”; the city-of-residence location provision; the report-on-request provision; admissibility of noncooperation; “The provisions of this section apply before and after the commencement of suit.”); history line ends “1986 c 444”; not amended in the 2026 Regular Session. Minn. Stat. § 595.02, subd. 1(d) (2025) (physician, surgeon, dentist, and chiropractor privilege), cited only for what privilege Rule 35.03 waives. This article states no rule about whether a Minnesota plaintiff may have counsel or an observer present at a Rule 35 examination, or may record one, because Rule 35 does not address either subject; those subjects are governed, if at all, by the terms of the examination order and by authority not cited here. The interaction between Rule 35.02(b)’s deposition-triggered waiver and Rule 35.04’s requirement of a court order to depose a treating or examining medical expert is expressly left open. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Every case depends on its own facts and on the practices of the assigned judge. No outcome is promised or implied.