CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This case involves the validity and construction of Rule 35 (a) of the Federal Rules of Civil Procedure as applied to the examination of a defendant in a negligence action. Rule 35 (a) provides:
"Physical and Mental Examination of Persons. (a) Order for examination. In an action in which 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 may be made only on motion for good cause shown and upon notice to the party 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 to be made."
An action based on diversity of citizenship was brought in the District Court seeking damages arising from personal injuries suffered by passengers of a bus which collided with the rear of a tractor-trailer. The named defendants were The Greyhound Corporation, owner of
the bus; petitioner, Robert L. Schlagenhauf, the bus driver; Contract Carriers, Inc., owner of the tractor; Joseph L. McCorkhill, driver of the tractor;*fn1 and National Lead Company, owner of the trailer. Answers were filed by each of the defendants denying negligence.
Greyhound then cross-claimed against Contract Carriers and National Lead for damage to Greyhound's bus, alleging that the collision was due solely to their negligence in that the tractor-trailer was driven at an unreasonably low speed, had not remained in its lane, and was not equipped with proper rear lights. Contract Carriers filed an answer to this cross-claim denying its negligence and asserting "that the negligence of the driver of the . . . bus [petitioner Schlagenhauf] proximately caused and contributed to . . . Greyhound's damages."
Pursuant to a pretrial order, Contract Carriers filed a letter -- which the trial court treated as, and we consider to be, part of the answer -- alleging that Schlagenhauf was "not mentally or physically capable" of driving a bus at the time of the accident.
Contract Carriers and National Lead then petitioned the District Court for an order directing petitioner Schlagenhauf to submit to both mental and physical examinations by one specialist in each of the following fields:
For the purpose of offering a choice to the District Court of one specialist in each field, the petition recommended two specialists in internal medicine, ophthalmology, and psychiatry, respectively, and three specialists in neurology -- a total of nine physicians. The petition alleged
that the mental and physical condition of Schlagenhauf was "in controversy" as it had been raised by Contract Carriers' answer to Greyhound's cross-claim. This was supported by a brief of legal authorities and an affidavit of Contract Carriers' attorney stating that Schlagenhauf had seen red lights 10 to 15 seconds before the accident, that another witness had seen the rear lights of the trailer from a distance of three-quarters to one-half mile, and that Schlagenhauf had been involved in a prior accident.
The certified record indicates that petitioner's attorneys filed in the District Court a brief in opposition to this petition asserting, among other things, that "the physical and mental condition of the defendant Robert L. Schlagenhauf is not 'in controversy' herein in the sense that these words are used in Rule 35 of the Federal Rules of Civil Procedure; [and] that good cause has not been shown for the multiple examinations prayed for by the cross-defendant . . . ."*fn2
While disposition of this petition was pending, National Lead filed its answer to Greyhound's cross-claim and itself "cross-claimed" against Greyhound and Schlagenhauf for damage to its trailer. The answer asserted generally that Schlagenhauf's negligence proximately caused the accident. The cross-claim additionally alleged that Greyhound and Schlagenhauf were negligent
"by permitting said bus to be operated over and upon said public highway by the said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagenhauf knew that the eyes and vision of the said Robert L. Schlagenhauf was [ sic ] impaired and deficient."
The District Court, on the basis of the petition filed by Contract Carriers, and without any hearing, ordered
Schlagenhauf to submit to nine examinations -- one by each of the recommended specialists -- despite the fact that the petition clearly requested a total of only four examinations.*fn3
Petitioner applied for a writ of mandamus in the Court of Appeals against the respondent, the District Court Judge, seeking to have set aside the order requiring his mental and physical examinations. The Court of Appeals denied mandamus, one judge dissenting, 321 F.2d 43.
We granted certiorari to review undecided questions concerning the validity and construction of Rule 35. 375 U.S. 983.
A threshold problem arises due to the fact that this case was in the Court of Appeals on a petition for a writ of mandamus. Although it is not disputed that we have jurisdiction to review the judgment of the Court of Appeals, 28 U. S. C. § 1254 (1) (1958 ed.), respondent urges that the judgment below dismissing the writ be affirmed on the ground that mandamus was not an appropriate remedy.
"The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts*fn4 has been to confine an inferior court to a lawful
exercise of its prescribed jurisdiction . . . ," Roche v. Evaporated Milk Assn., 319 U.S. 21, 26.
It is, of course, well settled, that the writ is not to be used as a substitute for appeal, Ex parte Fahey, 332 U.S. 258, 259-260, even though hardship may result from delay and perhaps unnecessary trial, Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382-383; United States Alkali Export Assn. v. United States, 325 U.S. 196, 202-203; Roche v. Evaporated Milk Assn., supra, at 31. The writ is appropriately issued, however, when there is "usurpation of judicial power" or a clear abuse of discretion, Bankers Life & Casualty Co. v. Holland, supra, at 383.
Here petitioner's basic allegation was lack of power in a district court to order a mental and physical examination of a defendant. That this issue was substantial is underscored by the fact that the challenged order requiring examination of a defendant appears to be the first of its kind in any reported decision in the federal courts under Rule 35,*fn5 and we have found only one such modern case in the state courts.*fn6 The Court of Appeals recognized that it had the power to review on a petition for mandamus the basic, undecided question of whether a district court could order the mental or physical examination of a defendant. We agree that, under these unusual circumstances and in light of the authorities, the Court of Appeals had such power.
The petitioner, however, also alleged that, even if Rule 35 gives a district court power to order mental
and physical examinations of a defendant in an appropriate case, the District Court here exceeded that power in ordering examinations when petitioner's mental and physical condition was not "in controversy" and no "good cause" was shown, both as expressly required by Rule 35. As we read its opinion, the Court of Appeals reached the "in controversy" issue and determined it adversely to petitioner. 321 F.2d, at 51. It did not, however, reach the ...