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 is not there. The rule is titled “Physical, Mental, and Blood Examination of Persons,” and its first subdivision is “Order of Examinations.” The word “independent” enters 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.”

That is a small thing and it is also the whole point. The examination is not independent, it is not an appointment, and it does not happen because the defense is entitled to one. It happens because a court entered an order, on a motion, on a showing — and the order itself is supposed to constrain it.

Here is 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 things are load-bearing: 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, not one. Minnesota’s rule uses the same two terms as the federal rule — “in controversy” and “good cause shown” — and each carries its own affirmative-showing requirement.

There does not appear to be a Minnesota appellate decision quoted here construing that language, so take the following for exactly what it is: the United States Supreme Court’s construction of 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 stated the flip side, which matters to every personal injury plaintiff reading this:

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 relies 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 has not thereby put his psychiatric history in controversy, 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, absent objection, gets the one it proposed; that is a consequence of nobody objecting, not of any entitlement in the rule.

Nor does the examiner have to be a physician. 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 the rule contains no numerical cap. Nothing in Rule 35 limits a defendant to one examination. What limits it is the per-examination showing — the movant must establish good cause “for ordering each particular examination,” in the phrasing of the case construing the materially identical federal language.

Can I bring my lawyer? Can I record it?

Rule 35 does not say. It confers no right to have counsel present, no right to bring a witness, and no right to make an audio or video recording — and it does not prohibit any of those things either. It is silent.

That silence is worth sitting with, because the belief that a claimant may bring someone along is not imaginary. It is 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 the amendment. What changed is that the witness cannot be paid for it, and the party who brings a witness bears that witness’s cost.

Nothing like that sentence appears in Rule 35. A civil personal injury plaintiff who assumes the workers’ compensation rule travels with her into district court is assuming something the rule does not provide.

What Rule 35 gives 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 are not a right the rule confers on the examinee; they are a required component of the order, and the motion is the occasion to be heard about them. A party who wants a term — a limit on duration, a prohibition 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

The reason this area confuses people is that a Minnesota injury claimant can face an adverse examination under three separate authorities that answer the same questions differently.

The no-fault column is the one most often overlooked, because it operates before anyone sues: § 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 is not a Rule 35 examination and is not governed by Rule 35 — a distinction that 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 is the one sanction Minnesota’s rules expressly withhold.

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” — 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 cannot jail you for refusing. It can dismiss your case. Rule 37.02(b) also closes 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 is a narrower provision where the party ordered to produce someone else cannot 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 requesting it costs you

This is the part of Rule 35 with the sharpest edges, and it is the part plaintiffs’ counsel most often triggers without pricing.

The report is not 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. A request is required. Nothing is 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 — “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 is forward-looking; a report generated months later is inside it.
4. The remedy against a silent examiner is exclusion. If the examiner will not 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 are not 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 surrendered the physician-patient privilege — 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 — inside that lawsuit. Requesting and obtaining the defense examiner’s report extends the surrender to any other proceeding involving the same controversy. So does deposing the examiner.

That is 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), but 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 — 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) — the request is a decision, not a formality. Those parallel recoveries also carry their own consequences at judgment, which are the subject of Minnesota’s collateral source offset.

Two more textual points that practitioners should not 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 is not going to testify, Rule 35.02 is the route to 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 wanting the examiner’s deposition needs leave under Rule 35.04 and triggers Rule 35.02(b)’s expanded waiver by taking it. How those two provisions interact is not resolved by any authority cited here.

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.”

Note 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 is the place where an overbroad authorization does damage that cannot be undone.

The 14-day period is recent, and it is 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 establish “[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 is 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 requires a motion and an order. If a letter arrives scheduling an examination in a filed civil case and no order exists, 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 the response, because the order must contain them. Rule 35.01 says the order “shall specify the time, place, manner, conditions, and scope.” That is the moment; there is no later one.
4. Do not 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 is not in Rule 35.
5. Price the report request before making it. Rule 35.02(b)’s waiver reaches “any other [action] involving the same controversy.” If there is a parallel claim, that is 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.

The observation

The examination is the single defense event in a personal injury case that a plaintiff attends alone, answers questions at, and cannot see the output of unless she asks — and asking costs something. Everything about it that a plaintiff can influence is 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 is not generous, but it is not lawless either. It withholds contempt. It requires a showing. It makes the report obligation run both directions. And it puts the terms of the examination in a document a judge signs, which means somebody has to ask.

The word “independent” is a description the Minnesota scheduling rule uses and Rule 35 does not. 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 have been notified of a defense medical examination, send us a message or call 612-470-6529.

Sources: Minn. R. Civ. P. 35, retrieved in full from the Minnesota Office of the Revisor of Statutes’ published court rules on August 7, 2026 and quoted from the raw page text. 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; a case-insensitive search of the full retrieved text of Rules 35.01–35.04 returned zero occurrences 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 retrieved 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), retrieved from the Caselaw Access Project archive at https://static.case.law/us/379/html/0104-01.html (reporter numerals from CAP’s structured metadata at 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), retrieved from revisor.mn.gov, whose page carries a currency banner stating that subdivision 1 has been amended by Laws 2026, ch. 103, § 11. Because the displayed text is the 2025 edition, the session law was retrieved separately at 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,” no pending-amendment banner. 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.