The Interplay Between Civ. R. 35 and Civ. R. 37

Discovery sanctions apply only to the specific instances enumerated in the discovery rule. They do not apply to the attorney fees and expenses incurred by a party in obtaining an order for a physical or mental examination.

Civ.R. 35 allows a party to seek an order requiring an opposing party to submit to a physical or mental examination “for good cause shown.” If the trial court orders a party to submit to a physical or mental examination and he or she refuses to comply, the party may be subject to sanctions under Civ.R. 37 (B) (2), including the payment of the other party’s reasonable attorney fees. However, there is nothing in Civ. R. 35 that authorizes a trail court to award a party his attorney fees and expenses in obtaining such an order.

The Civil Rules do not provide for an award of expenses associated with making or opposing a motion to compel attendance at a defense mental or physical examination. Failure to comply with an order may be sanctioned. However there is no provision for awarding expenses to procure the order.

The drafters of the Civil Rules clearly and deliberately chose not to […]