Plaintiffs' Bar Seeks Presence During Clients' Medical Exams

Debate over Rule 35 exams continues
By Noah Schaffer, Massachusetts Lawyers Weekly

From brain-injury cases to emotional-distress claims, some plaintiff's lawyers are complaining that they are not given an opportunity to attend medical exams requested by defense counsel.

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Kenneth I. Kolpan of Boston, a plaintiffs' attorney who is waiting to find out the status of a disputed Rule 35 request in a pending case, said that "it's a matter of a right — the defense has to show good cause for conducting the exam. Once you show good cause, the court sets the condition of the exam, not the examiner.

But, he said, "the court has the discretion to decide whether an observer can be present or not, and the decisions vary."

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