Preparing for and Defending Civil Rule 35 Mental Examinations

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Course Information

Time 60 Minutes
Difficulty Intermediate

Course Description

In civil litigation where emotional distress damages are sought, it has been a common occurrence for the parties to dispute whether the court should order a compelled mental exam for the Plaintiff under Rule 35 of the FRCP. These exams are often quite expensive and invasive. This program will offer practical advice for both plaintiffs and defense attorneys in cases where a Rule 35 exam has been ordered, including a discussion of the terms under which a mental exam can be undertaken, who can attend a mental exam, whether it can be recorded, when a report is required, and the scope of the examiner’s inquiry and testimony. Veteran employment law attorney Robert B. Fitzpatrick will explore the role of the treating mental health practitioner, and discuss possible alternatives to Rule 35 mental exams. 

This program will benefit both plaintiff and defense side practitioners in cases where emotional distress damages are sought.  

Learning Objectives:

  1. Review the requirements for Rule 35 mental examinations
  2. Assess the appropriate scope of examinations
  3. Differentiate garden variety cases from more complex matters
  4. Analyze whether the rule can be used to allow exams by vocational rehabilitation experts 

Credit Information

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Robert B. Fitzpatrick

Robert B. Fitzpatrick, PLLC

Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

Prior to entering private practice, Mr. Fitzpatrick served as a staff attorney in the Jackson, Mississippi office of the Lawyers Committee for Civil Rights Under Law in the late 1960's; as a staff attorney in the Office of General Counsel of the Equal Employment Opportunity Commission in the early 1970's; and with the Washington Research Project (now the Children's Defense Fund) training minority attorneys in the Deep South to litigate employment discrimination cases.

He has been in private practice in Washington, D.C. since 1970, having been born in Washington, D.C., and raised in neighboring Chevy Chase, Maryland. He attended Georgetown Preparatory School in North Bethesda, and received his undergraduate degree from the George Washington University. He is the father of three. He is an avid alpine mountaineer.

He is a Fellow of the College of Labor & Employment Lawyers, having been inducted as a Fellow at the first annual induction ceremony in 1996. He has been listed as one of The Best Lawyers in America® for 25 continuous years.

He is admitted to practice in all courts of the District of Columbia (Superior Court, D.C. Court of Appeals, and the Federal District Court of the District of Columbia), the Federal District Court for Maryland, the Federal District Court for the Northern District of Mississippi, the Supreme Court of the United States, and the United States Courts of Appeal for the District of Columbia as well as the Fourth and Sixth Circuits.

Mr. Fitzpatrick is an active member of the American Bar Association (ABA) and the District of Columbia Bar, being a frequent speaker at Bar meetings and a participant in the activities of several sections of the ABA and the D.C. Bar. He has been Co-Chairman of the ABA's Committee on Individual Employee Rights and Responsibilities of the Labor and Employment Law Section; Co-Chairman of the Steering Committee of the Labor Relations Section of the D.C. Bar; Chairman and founder of the D.C. Bar's Committee on Individual Employee Rights and Responsibilities; Chairman of the Federal Bar Association's Labor Law and Labor Relations Section; Chairman of the FBA's Committee on Equal Employment Opportunity; Chair of the Alternative Dispute Resolution Committee of the ABA's Section of Individual Rights and Responsibilities; and Chair of the Employer-Employee Relations Committee of the Torts and Insurance Practice Section of the ABA. He has been a member of the Class Action Task Force of the Torts & Insurance Practice Section of the ABA and served as a member of the Long Range Planning Committee of ABA's Torts and Insurance Practice Section.

Mr. Fitzpatrick has been a trustee of the Dalkon Shield Other Claimants Trust appointed by the late Hon. Robert R. Merhige, Jr. of the United States District Court for the Eastern District of Virginia. He has been a member of the Committee on Pro Se Litigation of the United States District Court for the District of Columbia. 

Mr. Fitzpatrick received his J.D. Degree with honors from the George Washington University's National Law Center in 1967. He has been a member of the Bar of the District of Columbia since 1968.