Section 6-335 - [Effective 1/1/2025] Physical and mental examinations(a) Order for Examination.(1) In General. The court where the action is pending may order a party whose mental or physical condition - including blood group - is in controversy to submit to a physical or mental examination by one or more suitably licensed or certified examiners. The court has the same authority to order a party to produce for examination a person who is in the party's custody or under the party's legal control.(2) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties; and(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.(b) Examiner's Report. (1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.(2) Contents. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.(3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request - and is entitled to receive - from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.(4) Failure to Deliver a Report. The court on motion may order - on just terms - that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.(5) Scope. This subpart (b) applies also to an examination made by the parties' agreement, unless the agreement states otherwise. This subpart does not preclude obtaining an examiner's report or deposing an examiner under other rules.Rule 35(b) comment amended February 26, 1997; Rule 35(a) and 35(a) comment amended November 21, 2001. Renumbered and codified as § 6-335, effective 7/18/2008; amended November 13, 2024, effective 1/1/2025.COMMENTS TO § 6-335
[1] The requirement that the examination be conducted by a suitably licensed or certified examiner mirrors the requirement in Rule 35 of the Federal Rules of Civil Procedure and gives the court the discretion to assess the examiner's credentials to ensure that the examiner has the expertise necessary to perform the proposed examination.
[2] The rule originally required that notice of a motion for an examination be given to all parties and to the person to be examined. The requirement of giving notice to the person to be examined was eliminated by the 2024 Amendments because it was unnecessary. The requirement of giving notice to all parties - including self-represented parties, parties represented by an attorney, and persons bringing claims as a representative (for example, a next friend) - ensures that the person to be examined will receive notice of the motion.
[3] Subpart (b) requires a party that receives a copy of the examiner's report to provide copies of any reports that the party may have on the same condition. Because those reports involve a condition that is an element of the party's claim or defense, those reports are not covered by the physician-patient privilege. See Neb. Rev. Stat. § 27-504(4)(c).