Schlagenhauf v. Holder

PETITIONER:Schlagenhauf
RESPONDENT:Holder
LOCATION:Louisiana General Assembly

DOCKET NO.: 8
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 379 US 104 (1964)
ARGUED: Oct 13, 1964
DECIDED: Nov 23, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – October 13, 1964 in Schlagenhauf v. Holder

Earl Warren:

Number 8, Robert L. Schlagenhauf, Petitioner, versus Cale J. Holder, United States District Judge for the Southern District of Indiana.

Mr. Smith, you may proceed with your argument.

Robert S. Smith:

If the Court please, Mr. Chief Justice and members of the Court.

I am here pinch-heading for Mr. Wilbert McInerney of the Washington Bar whose name is on the schedule.

We were in Mr. McInerney’s office at nine o’clock this morning calling a cab and he got word that his wife had died.

He of course left immediately for the hospital.

I’m pinch-heading for him and I trust I can cover the ground.

This case arose in Indiana as a result of an automobile accident, I shouldn’t say automobile, involving a Greyhound bus being driven by the petitioner here, Robert Schlagenhauf and a tractor trailer, the tractor being owned by the — one of the respon — not a respondent, one of the parties Contract Carriers, the trailer being owned by National Lead Comp — Corporation.

It was being driven by McCorkhill.

That accident happened on July 13th, 1962 on Highway 40, some miles west of Indianapolis.

Shortly thereafter, personal injury litigation was filed, as a mater of fact four days or after, and asking for very substantial amounts of money from all of the parties I have named.

In November of 1962, the plaintiffs, Markowitz being her name, filed an amended complaint.

And in that amended complaint, no mention was made of the physical or mental condition of the petitioner Schlagenhauf.

Greyhound filed an amended cross-claim asking that General Motors be made a third party defendant asking judgment on its cross-claim against Contract Carriers, National Lead and General Motors.

Contract then filed its answer to the cross-claim of Greyhound.

Again, no mention was ever made of Schlagenhauf’s physical or mental condition.

Later, in a letter to the District Court, Contract Carriers alleged specific acts of negligence on the part of Greyhound saying the defendant the Greyhound Corporation carelessly and negligently employed and caused its driver Robert L. Schlagenhauf to operate the said bus upon a public highway although he said Robert L. Schlagenhauf was not mentally or physically capable of operating the said bus upon a public highway at the time and place when said accident occurred, which fact was known or should have been known to the Greyhound Corporation.

The whole question involved in this case is an interpretation of Rule 35, the Rule permitting physical exam and mental examination of a party.

Rule 35 of course provides in an action in which the — the mental or physical condition of a party is in controversy, the Court in which the action is pending may order him to submit to a physical or mental examination by a physician.

The order maybe made only on motion for good cause show and upon noticed — upon notice to the party to be examined and to all other parties and shall specify the time, place, matter of conditions and scope of the examination, and the person or persons by whom it is to be made.

About this time in the proceedings, a petition was filed in the District Court by Contract Carriers asking that Schlagenhauf submit to physical and mental examinations.

Now it has to be remembered that Schlagenhauf is the unwilling dependent driver of the Greyhound bus.

I believe both Mr. Kightlinger and I can agree that there has never been an interpretation of the rule as it applies to an unwilling defendant as of this Court before.

Potter Stewart:

Every defendant is unwilling.

Robert S. Smith:

Sir?

Potter Stewart:

Every defendant is unwilling.

Robert S. Smith:

That is correct, that is correct.

The rule says, a party.

Potter Stewart:

How — how does this case differ.

I understand that it’s complicated in because of the pleadings and because there are several parties for the cross-claims — but is there any difference here basically between this case and an ordinary case in which a plaintiff has sued a defendant and then asked for a medical examination of that defendant?

Robert S. Smith:

Uh —

Potter Stewart:

I know that facts are more complicated but is there ultimately any difference in the application of Rule 35?

Robert S. Smith:

A plaintiff suing a defendant and asking for a physical examination?

I know of no cases where it’s been done Your Honor.

Now —

Arthur J. Goldberg:

Now, was there difference in all of the [Inaudible] as the Contract Carriers and the court below and there problems on these — especially with [Inaudible] at this stage of the game before the Court.

Robert S. Smith:

He was not — he was not a party.

Arthur J. Goldberg:

— and were accounted believe me that the Greyhound Corporation.

Robert S. Smith:

He was only a party in so far as the plaintiffs Markowitz were concerned –

Arthur J. Goldberg:

The original – (Voice Overlap)

Robert S. Smith:

That is correct.

Arthur J. Goldberg:

– with the situation at the bad times that later there was a counter claim by the National Lead who filed a kind of [Inaudible] were written in the files.

Robert S. Smith:

That is correct.

Arthur J. Goldberg:

But as of this moment, the question is against in one defendant, here they are the demolition under the rule of South Dakota.

Robert S. Smith:

That is correct, that’s correct statement.

Arthur J. Goldberg:

Now is there any petition of that type and the rule says by — I’ll be read it through [Inaudible]

Robert S. Smith:

It is not.

As a matter of fact Schlagenhauf’s physical or mental condition was never up to this date put in controversy.

[Inaudible]

Robert S. Smith:

I meet that Your Honor by pointing out that Rule 35 provides for the mental or physical condition of a party is in controversy.

Now, we — we —

Did National Lead file [Inaudible]

Robert S. Smith:

National Lead simply filed a statement.

[Inaudible]

Robert S. Smith:

No, I — I don’t believe that a defendant such as Schlagenhauf should be subjected to a physical or mental examination.

[Inaudible]

Robert S. Smith:

[Inaudible] refers to a party of plaintiff.

[Inaudible]

Robert S. Smith:

No, I — you didn’t say that Your Honor.

I can — I can readily see where there should be an examination of a defendant under certain circumstances.

Robert S. Smith:

For instance, suppose an individual buys a policy of life insurance and falsifies the application by saying that he has not had certain diseases and the company learns that he does have them and that they may prove fatal very shortly.

That company certainly is entitled to file an action, a declaratory judgment action for cancellation of that policy and if that man, the defendant in that case places the issue in controversy by denying that he had those conditions then I believe the court should and would order a physical examination of the individual but the respondent here or the petitioner pardon me, was never given any opportunity too put this issue in controversy as is required by Rule 35.

The Court was presented with a petition asking that he’d be examined by four doctors based simply on the statement of a lawyer that Schlagenhauf had had a similar accident in the past, it doesn’t say how far in the past.

That is the only cause shown and the Court signed an order ordering Schlagenhauf to submit to examination by nine physicians the same day the petition was submitted.

Neither Schlagenhauf nor we knew anything about this petition until the petition and the order signed by the Court was received.

Now, the lawyer attorney provides for notice and neither Schlagenhauf nor we were given any notice whatever.

[Inaudible]

Robert S. Smith:

Contract Carriers filed the first two Your Honor.

National Lead follows it.

But National Lead filed their cross-claim before they filed —

Tom C. Clark:

But National Lead included the bus driver in their cross-claim as a part of —

Robert S. Smith:

That is correct.

Tom C. Clark:

And they filed the application for the examination?

Robert S. Smith:

They filed it after Contract Carriers had.

Tom C. Clark:

But it is filed after they filed their cross action?

Robert S. Smith:

That is correct.

Tom C. Clark:

And they alleged that the bus driver was negligent and that is [Inaudible]

Robert S. Smith:

That is correct.

Tom C. Clark:

Contract Carriers alleged that he was mentally incompetent?

Robert S. Smith:

I believe both of their petitions are practically identical Your Honor.

Tom C. Clark:

So what’s your point?

Frankly, I’m sorry.

I see – I don’t — he is a party of the National Lead, he’s a party as to the original plaintiffs, but your point here was not a party for Contract Carriers?

Robert S. Smith:

He was not a party to Contract Carriers.

My point is it boils down very much to this that Rule 35, when the physical or mental condition of a party is in controversy, now it is my contention that a matter cannot be put in controversy until an allegation is made by one party and denied by another party.

William J. Brennan, Jr.:

You mean joint issue?

Robert S. Smith:

That is correct.

William J. Brennan, Jr.:

There has to be an issue joined on the matter of his mental and physical health.

Robert S. Smith:

Correct.

William J. Brennan, Jr.:

Well tell me Mr. Smith that if at least to the National Lead cross-claim was there an answer of any kind filed on behalf its —

Robert S. Smith:

No sir.

William J. Brennan, Jr.:

And what was the allegation that — that his vision was bad is that all?

Robert S. Smith:

That his vision was bad.

William J. Brennan, Jr.:

In the National Lead.

Robert S. Smith:

That’s correct and that he was sleepy.

William J. Brennan, Jr.:

How — why is this — there’s no answer in the file?

Robert S. Smith:

And that he was sleepy.

Tom C. Clark:

Well, Greyhound has filed also, was it Greyhound or what was the name of that?

Robert S. Smith:

Sir, Greyhound, yes sir.

Tom C. Clark:

They had filed as I understand a cross action against the National Lead and Contract Carriers?

Robert S. Smith:

That is correct.

Tom C. Clark:

And of course the bus driver just their agent and –

Robert S. Smith:

He was their agent.

Tom C. Clark:

— possibly with judgment through [Inaudible] they were caused to representing him also on that, is that right?

Robert S. Smith:

Sir?

Tom C. Clark:

I say that the same lawyer represented the bus driver representing the bus company as —

Robert S. Smith:

That’s correct, yes sir.

And —

Tom C. Clark:

Mr. Smith is — is your position then that the rule is not applicable except as to a party who joined this issue with some other party on the matter of his mental or physical health –

Robert S. Smith:

– And upon the showing of good cause.

Tom C. Clark:

Well, I know but I — I am as confused as my brother Clark I’m not quite clear.

I thought you were telling us that your position is that the Rule is not applicable except in the instance where a party who in the examination of whom is sought has joined issue with some other party on the issue of his mental and physical health, is that right?

Robert S. Smith:

That is my contention.

Tom C. Clark:

And your point here is that Schlagenhauf whatever his name is, has not joined issue with anyone.

Robert S. Smith:

He was given —

Tom C. Clark:

On the matter of his mental and —

Robert S. Smith:

He was given no opportunity to admit, deny, stand mute, or anything else.

The petition with the bare allegation that he had been involved in a prior accident was filed —

William J. Brennan, Jr.:

But I don’t understand that he was made a party by — I can’t find the pleading here — by National Lead.

It must have alleged something against him, did it, bad vision or something?

William J. Brennan, Jr.:

Well, I don’t — I don’t understand.

Didn’t he have enough opportunity to answer that allegation?

Robert S. Smith:

No sir, he did not.

William J. Brennan, Jr.:

Why would that be?

Byron R. White:

Well let’s assume that he had had the opportunity to — and had denied that he had bad eyesight and then the Court ordered the examination.

Would Rule 35 — well you would sustain that action in 35.

Robert S. Smith:

I — I would, if he denied it and — I still don’t think that would be a good cause Your Honor.

Byron R. White:

Well, I know, I realize your good cause is probably another point down the line somewhere but as this would eliminate your present argument.

Robert S. Smith:

Yes sir, it would.

Byron R. White:

If Schlagenhauf had denied — denied in the court and the court had ordered the examination, this point would wash out.

Robert S. Smith:

This particular point, yes sir.

Byron R. White:

And so you think you should have — is this really a substantial question.

Robert S. Smith:

It is a very substantial question.

Byron R. White:

And do you know – how would you deny or what do you —

Robert S. Smith:

Yes it is.

Byron R. White:

Or would he admit it and let’s assume the — that mo — the complaint was filed under the alleged that Schlagenhauf had bad eyesight. You say he should have an opportunity to answer that.

Now what would — do you have any idea of what would happen, whether he deny it or affirm it?

Robert S. Smith:

I can’t answer that, Your Honor.

Byron R. White:

Well —

Robert S. Smith:

My assumption is he would deny it.

William J. Brennan, Jr.:

Well, if that happens then was the application under your own premise under Rule 35, this is about this thing?

Byron R. White:

He — he said it would — he said it would, except that then he gives another point of that cause.

William J. Brennan, Jr.:

I guess to the point of good cause and notice.

There of course, there is a question of invasion of privacy which I wouldn’t go into at this time.

I am afraid I have used — if the Court has no further questions I will reserve what —

Byron R. White:

[Inaudible]

Robert S. Smith:

Yes sir.

You said your time [Inaudible]

Robert S. Smith:

That is correct.

The petition was presented to the Court and the Court signed the order which accompanied the petition the same afternoon.

[Inaudible]

Robert S. Smith:

Along with the copy of the order signed by the Court.

[Inaudible]

Robert S. Smith:

Did Schlagenhauf —

[Inaudible]

Robert S. Smith:

No sir.

Hugo L. Black:

That line hold the practices of filing interrogative of defendants whether they have that method of doing this, what’s done is, the suit is filed in both places.

You can have the [Inaudible] and along with that, the plaintiff filed interrogatively to the defendant, asking questions.

He doesn’t give a notice to get the issue.

He wants to get evidence to try after they issue the form.

What’s the difference in that and this?

Robert S. Smith:

The difference is Your Honor — the interpretation of Rule 35.

Now, with interrogatories, you have the opportunity of objecting to them, submitting them to the Court.

Hugo L. Black:

Or they — he would have had objection opportunity when they began to ask him questions or examine him, wouldn’t they, did he file a motion to set it aside?

Robert S. Smith:

No sir, he did not.

Hugo L. Black:

Why didn’t he?

Robert S. Smith:

Because they objected to the invasion of privacy of an individual by doctors had set out in the Botsford case which of course arose before Rule 35.

Hugo L. Black:

But I — I wasn’t only assuming that it was the original decision here.

But it’s sealed, but it’s a — and he has the right to file interrogatory, so the plaintiff tried them off and they have the right to file to the defendant —

Robert S. Smith:

In a personal — and the reaction they (Voice Overlap) the plaintiff voluntarily —

Hugo L. Black:

— there’s an issue drawn when he files interrogatories to interrogate —

Robert S. Smith:

There is an issue drawn when the answers are filed.

If — if the — if certain things are denying it.

Hugo L. Black:

But you haven’t made an effort going after the Court.

You didn’t go back to the Court and say look here we didn’t have notice to do it, now we want to cancel this or reverse it or get it to be set aside and then we can draw some, or file an objection.

You just immediately took the position that there’s no, no right to do it because there had been no issue drawn.

Robert S. Smith:

That is correct Your Honor.

Hugo L. Black:

Why didn’t — why didn’t — if you had the —

Robert S. Smith:

The answer to that —

Hugo L. Black:

And yet it amounted anything, why didn’t you present it to the judge?

Robert S. Smith:

The answer to that Your Honor is a practical reason and not a legal.

Hugo L. Black:

What is it?

Robert S. Smith:

Judge Holder was leaving the afternoon as the order was signed to hold the Court in Evansville, Indiana and he did leave and had gone before we received either a copy of the petition or a copy of the order.

Hugo L. Black:

But you could have — you could have bound him I believe.

Robert S. Smith:

We could go on, and then bounding —

[Inaudible]

Robert S. Smith:

Through Evansville, let’s see, about 170 miles – I believe it’s about a170 miles —

William J. Brennan, Jr.:

Do you have the judges there?

Robert S. Smith:

Yeah, I know, I can’t say whether — there are two other federal judges.

Now I can’t say whether they were present in Indianapolis on that particular day or not.

Thank you.

Erle A. Kightlinger:

Mr. Chief Justice –

Earl Warren:

Mr. Kightlinger?

Erle A. Kightlinger:

– may it please the Court.

At the outset I would like on behalf of this respondent make one correction.

This order was filed on February, the petition was filed on February the 5th.

It laid upon the Dockets of the Court for a period of 15 days which under the local rules are required in order to file anything in opposition, and it laid one day longer and then the District Judge entered this order upon February the 21st.

The trans — the transcript in this case shows that it was served by United States mail pursuant to the federal rules and was put in the mails and there has never been in all of the transactions including before the Circuit Court of Appeals the suggestion until I just heard it that this petition was not properly filed and notice made and laid upon the Court records.

Byron R. White:

[Inaudible]

Erle A. Kightlinger:

That’s correct.

And the transcript shows that a male in service in this — in this record sir, so that this point was never made before the Circuit Court of Appeals.

It’s never been mentioned in the brief.

It’s not been mentioned in any transcript and I say to the Court that this matter did lie for 21 days before there was — for 16 days before there was any action taken which is required under the local rules that there be a 15-day period in order that any opposition or objection be filed thereto.

Byron R. White:

And now you’re speaking of the petitioner, Contract Carrier as the —

Erle A. Kightlinger:

I’m speaking of the petitioner, Contract Carriers?

Byron R. White:

Not National Lead.

Erle A. Kightlinger:

To which National Lead also joined and —

Byron R. White:

Well, and also they joined the same petition.

Erle A. Kightlinger:

Well, they filed a petition at — at the identical times in which they set up certain (Voice Overlap) they serve theirs too —

Byron R. White:

And the records shows?

Erle A. Kightlinger:

Then the record shows that.

[Inaudible]

Erle A. Kightlinger:

That is correct sir but there was also a filing before there was filing action of the cross-claim.

Now I would like to point this out under our Federal Rules.

They have been most useful and in the discovery areas we place a lot of emphasis because we’re really dealing with notice-pleading.

And we’re not dealing with code-pleading as is suggested here.

This Rule does not say where the physical or mental condition is an issue, it says it is in controversy and I say it under the Federal Rules even if the forms were applied, if a plaintiff files a suit against two co-defendants and said “You are negligent,” that suffices.

From that point on the discovery of procedures are resorted to in order to get at the facts.

Now, it’s always possible for a co-defendant under that situation to prove and to discover it that would enable them to side that the other co-defendant is solely negligent by his neglect.

But later under this particular District Court’s requirement for purposes of instruction, there was a — there was a letter part indicating that the mental and phy – physical condition of this petitioner was placed in issue by the contributory negligence allegation in the special answer.

Later —

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

Mr. Justice Goldberg this is the practice.

This particular judge in which he had pretrial, he instructs all parties where they have not spelled out specific acts of negligence to spell them out and to indicate whether they are common law or statutory violations and this letter was in compliance with that order at the pretrial conference.

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

That’s correct sir.

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

Right sir.

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

That’s correct sir, that’s the sequence.

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

There was no formal, there was no formal hearing at anytime but there was the petition, there was an affidavit that by other discovery procedures it was discovered that the same driver Schlagenhauf for Greyhound that had a similar accident in Flat Rock, Michigan previously.

It was also pointed out that on the day of this very tragic accident there was another observer who was similarly positioned to Schlagenhauf on the highway and did see lights in this trailer for half a mile to three quarters and there was further evidence of discovery up to this time that was part of the affidavit that Schlagenhauf himself admitted that he saw lights for 10 to 15 seconds and although we’re on a four-lane highway in which he has two lanes he made no effort to deviate or to move from that position.

So all of this was before the judge without any opposition filed under the local rules within the 15-day period that was laid upon the record sir.

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

Well sir in the field of this sort of thing where there are visual problems.

In addition to that there can even be people who operate vehicles and become terrifically aggressive when they’re in a vehicle and there’s no other car.

There are instances when people are known under these situations to even have suicidal impacts.

Erle A. Kightlinger:

Now, all of these factors including the visual where you can’t find function, the disturbances is a proper area of psychiatry and there’s no reason why we wouldn’t examine this man from his eyesight and from other viewpoints and at the same time may find the underlying psychiatric problems that could lead here to the difficult so that the Court and we’re dealing with a common carrier and I would like to point out this anomaly.

On page 36 I think of the petitioner’s brief they point out that it would have sufficed had we taken the medical reports from the Interstate Commerce Commission upon this man Schlagenhauf and used them in the Court.

Now irrespective of the question of evidence on whether they could be, isn’t it an interesting approach that this man is willing to submit himself to physical examinations by an administrative tribunal, but when the Court insist it becomes an issue of the inviolability of the person.

Now, there are constitute —

Arthur J. Goldberg:

[Inaudible]

Erle A. Kightlinger:

No sir.

I think that if there are affidavits filed that there are similar accidents that he’s driving a vehicle in the Common Carrier type that other people saw a thing that he didn’t see and that there was 10 to 15 seconds intervening that when that sort of cause is shown and then the — those that oppose it do not come in within that 15-day period and lay up on the table any type of contrary affidavit or any type of contrary information then I say sir that a good cause is shown in the District Court, the respondent here was absolutely proper in exercising the discretion which is given to him under this rule and that it’s becoming increasingly more useful in this complex society where there are people at the wheel or at the airplane or at the throttle on fast moving equipment and so on and these explanations of these accidents can also be uncovered through reasonable, physical examination.

Now I will say that of course the District Court cannot just automatically do it, but he must being on the firing line with the cause field that there’s good and justifiable cause in order to grant such an order and I think that was replete here and it was so seen by the Seventh Circuit, Court of Appeals in considering this question.

Potter Stewart:

The District Judge didn’t exercised the — apparently exercised a little discretion in granting this but he didn’t even read your petition and are — read it understandingly because he granted a good deal more than you asked for, didn’t he?

He granted nine examinations instead of four.

Erle A. Kightlinger:

To that extent sir I think that is correct and whether or not the motive there was busy a judge who signed an order for which he should have made selection but the point still remains that after the Seventh Circuit decision is rendered and after the stay order was lifted this matter was represented to the crowd judge and he reduced these orders to four.

So as we stand here before this Court we‘re dealing with an order in which there were four physical examinations and the nine that was the subject to the Circuit Court of Appeals is a matter that is moot and we still say that unless the Court were to render a decision and vacuum it would — the recognition of this new development in this case since the ord — extraordinary writ of mandate is being sought that we’re now dealing with multiple examinations of four and that is not shopping, I know of many, many instances where plaintiffs submit their cases upon medical evidence that involves their own doctors, their treating doctors, their experts and in addition thereto the defense so that it is not on them and counting to have four or five doctors testifying as to medical condition of an individual.

Potter Stewart:

So you’re suggesting I suppose in effect that we now have before us because of these chain of circumstances a different case from the case in which we originally granted certiorari?

Erle A. Kightlinger:

I believe that’s an appropriate conclusion sir.

[Inaudible]

Erle A. Kightlinger:

Oh yes, I think that the pleadings were filed and I know of no instance where there was an opportunity to — to file appropriate pleadings to National Leads counter-claim.

[Inaudible]

Erle A. Kightlinger:

Well, there’s been fi — there’s been answers filed in those cases that issues that have been closed.

[Inaudible]

Erle A. Kightlinger:

Yes, I’m sure there has been.

[Inaudible]

Erle A. Kightlinger:

This case was actually set with all of these pleadings for trial by the District Court and the state proceeding —

[Inaudible]

Erle A. Kightlinger:

Well, there’s certainly it’s a — it’s in the case.

It might have been filed subsequently.

The clerk refused to print anything in this record other than what was before the Circuit Court of Appeal.

Now, I — I know that the matter has – the issues have been closed and I supposed the clerk was very proper in that but the District Judge did order me as an attorney for him to file with this Court and bring these proceedings to date.

Now the issues have been closed but I — I think it’s very possible that that was not closed at the time that the matter went before the Circuit Court of Appeals.

But that it has been since then.

But I don’t consider that to —

Hugo L. Black:

Besides this thinking — the investigation so far as Sibbach versus Wilson, what can you say?

Erle A. Kightlinger:

The —

Hugo L. Black:

In the reflection you made or physically examination of the defendant and the judgment of the Court that the plaintiff is to be subjected to be put into the examination —

Erle A. Kightlinger:

Mr. Justice Black I don’t think there are any with the exception that this is a seeking a physical examination of the defendant who is a part of the rule doesn’t confine it to — to plaintiffs who were seeking personal injury, it says a party.

The real doesn’t confine it to one who seeks the federal orbit as a forum.

The rationale as suggested by the petitioner here that one who seeks the forum therefore waves some constitutional right.

Well, we know this right is highly qualified.

It’s not in an absolute sense whatsoever.

Hugo L. Black:

And then there’s been denied the right to examine a plaintiff, personal injuries or something that is material to the case on the ground that there had been no forum, pleading issues, pending, you know of any, I don’t —

Erle A. Kightlinger:

No, I know of none but the rationale there is that the plaintiff by filing his action is seeking personal injury in the complaint and therefore it’s an issue upon the complaint even under the very limited notice form of this Court it would still require that statement sir.

Byron R. White:

Do you know of any [Inaudible] where the — where the examination is sought to prove negligence rather than injury.

Erle A. Kightlinger:

There is no case to my knowledge and that’s the unique — uniqueness of this case before the Court.

Byron R. White:

That Court, this present time.

Erle A. Kightlinger:

— from exhibit and it has to do with the defendant.

Byron R. White:

This is the difference between this and [Inaudible]

Erle A. Kightlinger:

That’s correct but this — but this whole area of discovery, someone talks about substantive rights being involved and what we’re really doing is seeking out the truth by all of the discovery methods which has its impact ultimately up on substantive rights.

But what difference does it make whether a defendant is put in a position and asked questions from which he indicts himself as to the facts under a deposition procedure or whether he’s subjected to physical examinations and we find the explanation for one of these tragic accidents and this is not an unusual occurrence where men because of physical disability and incapacity of some sort of another find themselves in a serious accidents involving trucks, air craft, and various other methods of modern transportation.

And the suggestions that are made for the petitioner here would take us back to pre Botsford days.

These rules have had terrific utility and they should be brought —

Byron R. White:

Well, that’s not along this line.

Erle A. Kightlinger:

Sir?

Byron R. White:

Not along this line.

Erle A. Kightlinger:

Well, how many instances that perhaps the —

Byron R. White:

Have you ever used the rules to get the physical examination — get the physical examination of the party to prove that he was negligent?

Erle A. Kightlinger:

No sir.

This is — this is the first instance where we have explored it, but there was the first instance when we used in the paternity suit in the District of Columbia.

There was the first instance when it was used under a warrant of arrest policy.

There was a — there’s been the first instance under these rules and many examples where a plaintiff who was just seeking personal injuries, this rule has been expanded and that utilities expanded and I think in this day of modern transportation we’re upgrading this whole situations who are recognition of a very definite fact and that is in the areas of hot conditions, many other physical factors, these are explanations for many of these tragic accidents and this was an unusual one.

This was an accident resulting in demands well in excess to $2 million, a young boy who is maimed for life with the most serious riding on a Common Carrier and the Common Carrier having two similar accidents with their driver of this sort and so on.

Now, there had been suggestions made to the Court that there were constitutional questions involved here.

Erle A. Kightlinger:

And of course Sibbach, put at rest in our opinion any constitutional questions.

Now, with the precise —

Byron R. White:

I think that was a constitutional [Inaudible]

Erle A. Kightlinger:

It — it did this. It said that the — that the Rule 35 was procedural in its origins.

It was therefore consistent with the Enabling Act and this Rule then was reported from the Court to the Congress without change or deviation and through that process.

I would say that that it was attacked on constitutional grounds, but it — even Mr. Justice Frankfurter in his dissent as to the reasoning said there’s no question but what there’s no constitutional question here that this is still within the power that it’s still procedural and not subsidy and that it — it’s still consistent with the whole scheme of things under our discovery procedures.

Earl Warren:

Well, Mr. Kightlinger what prompted the judge to provide for nine physicians to examine this man when even the parties only asked four?

Erle A. Kightlinger:

Mr. Chief Justice I think in all frankness to the Court that it was an example of a busy judge who had submitted to him a prepared order which is the custom in which there were nine named doctors from which he could make selection and instead of making this selection of the required number he by inadvertence signed the order as to the norm.

But that that would be my only explanation of the matter and I don’t think it would have ever occurred had within the 15-day period, the petitioner made any steps here and we do all agree that busy trial judges who keep their calendars up frequently are confronted with these situations but that matter is that we have now appear before this Court is completely corrected.

And I think it’s an important situation because this Court has never indulged in moot questions and has never indulged in thinking in vacuum and —

Earl Warren:

We might not agree with you on the — on the mootness issue and that advantage does become material.

You — you must argue that — argue that he was entitled to a point these nine judges before the Court of Appeals and the Court of Appeals sustained it.

Erle A. Kightlinger:

Mr. Chief Justice we did so argue and there we argued also on behalf of the respondent because we don’t know what was in his mind.

Earl Warren:

Beg your pardon?

Erle A. Kightlinger:

We don’t know what was in his mind but we also argued there that he could have been motivated just as well in the exercise of the discretion by not putting all of Schlagenhauf’s models in one basket if you want to out it that way and gave multiple examinations here so there would be no possible question after virtually this board of doctors reach their conclusion as to what was the true condition of this man and he was not being asked to submit to one doctor and what he might say but he was being asked to submit in all of these specialties so that there would be no question afterwards because of this disaster as to the situation.

So to that extent sir it was so argued before the Circuit Court and the Circuit Court of Appeals of the Seventh Circuit took the position that this was a discretionary matter that it was within the corners of the court and it would not as an appeal Court invade the discretion of the court in the — on the basis if this record in the trial court by the extraordinary writ of mandate which by has been stated by this Court time and time again should only be issued when the District Court is virtually nullifying the Rule by an excess exercise of power beyond the intention of the Rule.

I’m sorry my time, I’m not sure where I am.

[inaudible]

Erle A. Kightlinger:

The logic of my argument is that in an — but I do want to insist upon one point that the trial judge must have before him certain facts in an affidavit form or in form that would justify his conclusions.

Now, I don’t think we can say that in every negligence case a co-defendant or any defendant is going to be subjected to a psychiatric or mental examination.

Arthur J. Goldberg:

[inaudible]

Erle A. Kightlinger:

Mr. Justice Goldberg that’s the logic of my position when we put in that question.

We do —

Hugo L. Black:

And still it wouldn’t be the views of discretion if the Judge requires nine examinations of the man instead of one.

Erle A. Kightlinger:

Multiple examinations as I’ve said had been recognized under rule and when we start drawing the line, is it going to be two, is it going to be five? I’ve pointed out that in my experience I have frequently found plaintiffs in serious cases with six doctors, five doctors, testifying.

Now I can see in this area of medical specialty and specialization that multiple examinations will be in appropriate cases will be the answer.

And they will be pursued and if they’re on the plaintiff there’s no reason in the world why they shouldn’t be pursued and the defendant subjected to the same sort of discovery procedure and other in order to — I know that then what are we doing. We’re unearthing the truth, the truth for in the Courtroom.

And this suggestion of the inviolability of the person in this case where there’s a qualified right to begin with is false – I suppose boy and girl today go down to get their license for their wedding, for a marriage, and are subjected to a requirement administratively, a blood test would prefer not to have such a test, but it’s a qualified right.

You might say, well we don’t have to get married.

They can refuse to get married but the point is that in our society these rights are qualified and there’s no reason why this right shouldn’t cut both ways in order for us to get at the backs prior to trial and in pretrial and find out frequently as it could have been here.

Erle A. Kightlinger:

What could have been the cause of this tragic accident and what would have happened in the end?

Suppose this man submitted which he hasn’t done now and we’d find there’s nothing wrong physically or mentally with him.

He’s been inconvenienced, yes, but supposed we find that he does have serious physical disability that accounts for these two accidents or mental disturbances that accounts for these two accidents, then I say a miscarriage of justice has been averted and the truth has been sustained in the spirit of the federal rule.

Hugo L. Black:

That’s right.

I’m — I’m not sure I completely understand it but this is a mandamus, isn’t it?

Erle A. Kightlinger:

This is a writ seeking under the All Writs Act, a mandate against the Court to expunge from his record, to mandate and to the expand from the record of disorder.

Hugo L. Black:

Now, here’s the ground.

If one of the grounds — is there in the ground that it’s void because there were too many examinations going.

I didn’t understand that was an issue.

Erle A. Kightlinger:

Yes, I think impliedly throughout the argument of the petitioner, they have suggested that the — that the fact that there were nine just as the Chief Justice suggested that there were nine requested — oh, only four requested and — and nine actually granted that that was of an in itself an indication of an abuse of discretion.

Hugo L. Black:

Now, another thing that could correct it though.

Erle A. Kightlinger:

That — that has sir.

Hugo L. Black:

I thought he was claiming that there was no power at all.

Erle A. Kightlinger:

He — he did do that sir but the argument is presented here to the Court this morning, I did not get that implication and I did not deal with the areas of constitutionality which I think long ago been foreclosed by this Court’s decision and I think it would be a sad day, we went back to pre Botsford day and the like and the — and the language is clear, the operation of this Rule is clear and I would think it would be as I’ve said a sad day for us to strike at discovery and I’m not so sure that it wouldn’t also create a lot of problems in other areas because if there, if that is without — without power then it must be on the theory that there’s a constitutional innovation and this Court has never to my knowledge ever suggested that there were any constitutional problems involved here whatsoever.

Hugo L. Black:

Now another question —

Byron R. White:

Going back to the physical examinations to —

Erle A. Kightlinger:

— to prove negligence?

Well, that’s with the same rule you know.

Erle A. Kightlinger:

Again, we’re in areas where many of these things under rules are not reported.

The Dinsel — the Dinsel case that’s in this file indicates one Court felt that there was an inherent power in the Court to take a driver of a co-defendant — of a defendant and subject him to a physical examination either even though the rule didn’t apply.

Now, that’s one instance I think —

[Inaudible]

Erle A. Kightlinger:

No sir, there was a proposal made to this Court to permit the agent who is not a named party to be physically examined just as the named party would be and this Court as far as advisory committee was concerned the impression I get from it was that this Court took the position that it should occur at that point.

[Inaudible]

Erle A. Kightlinger:

Well I did invisibly.

That was the one I will say that to my knowledge there are not a great many cases in this area.

But if this Court wanted to say a plaintiff who pursues personal injury, in the Rule it could have easily been said or if you just wanted to say anyone who pursues — pardon me sir.

Hugo L. Black:

As a defendant though you cannot, the plaintiff was in this objective into the same examination, I assume that’s not arguable.

Is it argued that because he’s the defendant he is immune from the same kind of inquiry —

Erle A. Kightlinger:

Yes.

Hugo L. Black:

— should be made on examination the same with the plaintiff?

Erle A. Kightlinger:

Yes, Mr. Justice Black that’s exactly what has been argued and it had been argued by the petitioner here and they’ve even gone so far as to say that the rationale is if you pursue a remedy in the federal forum then you subject yourself on a waiver theory.

Now, our point about that is suppose the defendant removes the matter to federal court and he selected the forum does he then subject himself but the plaintiff does not.

Now all of the —

Hugo L. Black:

Is it argued also I thought that it has to [Inaudible]

Erle A. Kightlinger:

Pardon.

Hugo L. Black:

If one of the arguments I’m not sure on what you say and what he says but you can examine to find if a physical defect like an absence of an arm or absence of vision see, but you can examine to see if the mental defect as did Mike have is or a motor disaster effect.

Is that one of the argument?

Erle A. Kightlinger:

As I view their brief, they’re merely saying that a defendant and it’s just not sub — subject to a examination unless under some circumstances brought himself into the federal orbit of the forum and on a consent or waiver theory and they go back to the Botsford language and the use the Botsford language about the inviolability of the person and they bring it in to this courtroom at this later date and all these years after when we all know that we’re dealing in no absolute sense with any rights in a modern society.

All rights are modified to the common good and this is one that is.

The power is clearly here, the — the power to subject it as far as the defendant is concerned is clearly here.

And so this Court has narrowed down as we stand here at the moment to interfere with the discretion of the District Court on the theory of nine or four examinations as I see it and that’s how this case is narrowed.

Hugo L. Black:

I hope your case doesn’t stand on this argument you have made with all individual rights in this country and be subjected by the legislative and to hit the grounds to what they say is the common good.

Erle A. Kightlinger:

No, I don’t think I — I meant that but I did say that the inviolability of the person certainly in a modern society as we hammer out the respective rights are not in any absolute sense particularly as we deal with it here such a right that it isn’t qualified as to the common good of society.

Now that doesn’t mean that any Court by virtually edict with this — this thing here has been growing for five centuries, the assertion that it was not in the common law but for five centuries as Wigmore brings out clear back in the days when the emphasis upon the property.

This Rule was developed.

I believe I’ve exceeded my time, I apologize.

Hugo L. Black:

I suggest that you read — I suggest that you read the state law that make you to ask the question unless they’ve changed as I knew them but at least [Inaudible] practically, one of the best thing that the party in the lawsuit did in that case would try to find that if the plaintiff or the other fellow was not the man who is doing the work possibly injury and did have some defect and to find out if there was any negligence that was the purpose of the discovery instantly in those kinds of cases.

Erle A. Kightlinger:

We do that too and the point is that by the process of discovery there are many of these cases disposed then without trial because the truth is out upon the — on the table and for all to see and of all these cases had be to tried, the — the federal courts would be so congested as they are in many instances that would be impossible that’s how useful the discovery are.

Thank you sir.

Earl Warren:

Mr. Smith.

Robert S. Smith:

I have few moments left I don’t know how many.

I was interested in Mr. Kightlinger’s comments about the growing tendency or say to authorized invasion of the privacy of the individual.

[Inaudible]

Robert S. Smith:

Sure sir.

William J. Brennan, Jr.:

Do I understand that if in fact this petitioner had filed an answer to the National Lead cross-claim denying the allegation of that cross-claim that this accident was due to his defective vision or whatever that allegation was.

Now that he would not be here?

Robert S. Smith:

No, I don’t say that Your Honor.

I say that that would eliminate the one point, the in controversy point.

William J. Brennan, Jr.:

Well then what’s left?

Robert S. Smith:

What is left — the order maybe made only on motion for good cause show.

Now this order was made on a motion alleging that Schlaugenhauf had been involved in a similar accident at sometime in the past.

That motion does not say that any physical or mental defects that Schlagenhauf might have were the approximate cause of this accident whether a remote cause or the —

William J. Brennan, Jr.:

Well, if I — I understand that argument, that — that’s not to say then that it did not be powered to make the order in the case I put you, you answered and denied the allegation of the cross-claim, but only that the premise upon which so orders this issue namely good cause is not missed out.

Robert S. Smith:

That’s correct.

William J. Brennan, Jr.:

Now, is there any — is there any other ground?

Robert S. Smith:

I don’t believe that it’s our contention.

As we point out in the brief that Rule 35 contemplates the physical or mental examination of the defendant in this type of case —

William J. Brennan, Jr.:

Well that you mean to prove negligence?

Robert S. Smith:

Yes sir.

William J. Brennan, Jr.:

In other words that it’s only examinations submitted only on the issue of damages.

Robert S. Smith:

I would say so yes Your Honor and the Life Insurance case that I cited earlier —

William J. Brennan, Jr.:

Is there anything in the wording of the rule itself would justify that distinction?

Robert S. Smith:

No, no.

William J. Brennan, Jr.:

Well then what?

Robert S. Smith:

Nothing in the wording —

William J. Brennan, Jr.:

How would you support it?

Robert S. Smith:

Because I believe that using the other interpretation it violate several sections of the constitution which we set out in our brief that it certainly — well, they all boil down to invasion of the individual’s right to privacy.

Byron R. White:

Do you make the — do you still would make any point out of the nine examinations instead of four or that is washed out of the case?

Robert S. Smith:

It is not washed out Your Honor.

As I understand it this Court is considering this case on the record as certified to this Court from the Seventh Circuit.

Your clerk directed what was to go into that record.

Byron R. White:

But there is no issue remaining, actually there’s no practical issue remaining between you as far as being nine rather than the four examinations?

Robert S. Smith:

No sir, no sir.

Byron R. White:

There were only four —

Robert S. Smith:

Judge Holder later did modify his order.

Byron R. White:

So the order has been modified.

Robert S. Smith:

It has been, yes Your Honor.

There are — to my knowledge he did not, again I’m speaking from a record that has been created since this occurred.

He did modify the order.

Tom C. Clark:

Well, it so set out in our appendix that is so brought up and it’s so certified by the judge himself directing us to file that —

Robert S. Smith:

I’m — I’m sure he did.

I’m sure he did.

Now whether he named the four doctors or not I cannot say.

But as I pointed out earlier there is no reported case under the federal laws where a federal court has granted such a petition even for an examination of a defendant by one doctor, let alone, four or not.

There is not a reported case anywhere that we have been able to search and find.

If this — a state of affair should be permitted to exist that the rule should be interpreted in that manner, it would simply mean that every United States District Court of the land would become a damage in the Court where you could do the things in that Court that you cannot do in your state court.

Indiana does not permit the examination of a defendant —

[Inaudible]

Robert S. Smith:

We have that position of course, but not physical examinations and I know of no state that does physical examination of a defendant.

Byron R. White:

To prove negligence.

Robert S. Smith:

That’s correct.

Byron R. White:

That’s what you’re really saying, to prove negligence.

Robert S. Smith:

— that’s what I intent to say, yes.

Byron R. White:

You would have the same problem getting an examination of the plaintiff through the contributory negligence.

Robert S. Smith:

That is correct.

If the purpose of that examination was solely to prove contributory negligence.

[Inaudible]

Robert S. Smith:

Oh, we can — we can file interrogatories and due —

Hugo L. Black:

You’re drawing a distinction not as I understand it, not between whether the issue is one of negligence but whether the relief of question is a physical or mental examination of the party.

Robert S. Smith:

That is correct.

Here we have a petition for a physical and mental examination of Schlagenhauf filed six months after the accident happened and the petitioner doesn’t even alleged that any physical or mental defect that might possibly be discovered was approximate cause, contributory cause or the remote cause or anything else of this accident.

Tom C. Clark:

And one of the [Inaudible] to the judgment that in the motion incorporates the letter.

Robert S. Smith:

Their letter Your Honor says that —

Tom C. Clark:

— to the judge which to site that they had a pretrial conference that that conference he was instructed to do certain things.

He was never for advancing a judge, he was alleging his — on page 21 and he said there that Schlagenhauf was mentally and — [Inaudible] here.

It’s page 40.

The defendant Greyhound Corporation carry this thing that he is employed until his driver expecting to have — to operate the said bus from public highway although it says like an [Inaudible] he’s not mentally or physically capable of operating the said bus from the sort of tallies at the time and place when the said accident occurred.

Which fact is known and should have been known grade in.

Robert S. Smith:

That is contained in the letter, yes Your Honor.

Tom C. Clark:

That was before their motion and there motion refers to the letter, refers to their claim of mental incompetence.

The motion which starts on page 7 refers to that as I understand that the judge had been able to take notice of the fact that they had alleged the mentally incompetence of the party [Inaudible]

Earl Warren:

I beg your pardon, your time is up.

Thank you gentlemen.