This article proposes an analysis for courts to follow when faced with a Rule 35 motion to compel a party to undergo genetic testing or any other procedure that tests for a specific medical condition.
Part I explains the analysis courts generally conduct for a Rule 35 motion. Generally, courts make a factual inquiry into whether there is a need for the procedure and whether the examinee has placed his or her physical or mental condition in controversy. Rarely have courts examined the risks associated with ordering an examination. When courts do examine the risks, they continue to show a willingness to order exams that are quite intrusive, that impact persons outside of the lawsuit, and that involve tests open to a wide range of interpretations.
Part II examines how courts have begun to order genetic tests in civil cases without any consideration of the purpose of the tests or the risks associated with ordering them. This section explores genetic testing, focusing on three specific diseases in an effort to illustrate the wide variance of information produced by different genetic tests. Part III considers the similarities between HIV testing and genetic testing, and details the implications of court-ordered HIV testing or genetic testing under Rule 35. This section examines the cases that have considered motions for court-ordered HIV testing, and shows a division among the courts: first, those courts that recognize that Acquired Immune Deficiency Syndrome ("AIDS") is unique, and second, those that treat HIV testing like any other type of examination. A similar division has occurred among public health officials and civil libertarians when debating policy regarding HIV. This debate has pitted traditionalists, those who believe all diseases should be treated similarly, against "exceptionalists," those who believe that HIV is so unique that it deserves exceptional treatment in the law. This debate has begun to encompass policy decisions regarding genetic information.
Part III concludes by describing the current arguments in the "genetic exceptionalism" debate and proposes to eliminate the labeling of diseases as exceptional or non-exceptional. It is argued instead that any testing policy should be based on the characteristics that make each disease unique. Finally, part IV proposes that courts faced with a Rule 35 motion should apply the approach developed in Part III and should thoroughly examine the unique characteristics of each genetic test. This would require the court to amend its fact-driven analysis of Rule 35 to include an "examination of the examination." This analysis requires the court to thoroughly examine the informational risks associated with ordering a genetic test and to determine whether the test results will prove useful to the court before it orders a genetic test. This section takes a detailed look at the specific informational risks associated with genetic testing and concludes that there is a general lack of usefulness of genetic test results in litigation.
34 U.S.F. L.Rev. 295 (2000).