Hastie and Forman, Circuit Judges, and Kirkpatrick, District Judge.
This is a proceeding on a petition for a writ of mandamus, prohibition or both. The breaking in two of the S.S. Pine Ridge off Cape Hatteras in 1960 caused alleged personal injuries or death to a number of seamen who, individually, or by their representatives, instituted suit in December of that year. In April of 1962 the defendant admitted liability and withdrew its petition to limit same. The cases were consolidated for trial and on April 7, 1964 the District Judge pretried these consolidated matters. He found that "virtually no discovery had been accomplished"*fn1 on the only remaining issue, one of damages. Therefore, the pretrial order entered May 11, 1964 set definite dates for the completion of discovery and indicated the necessity for a post-discovery final pretrial conference.
At the April 7 conference the plaintiffs and the defendant entered into an informal arrangement providing defendant with an opportunity to examine the plaintiffs after ten days notice of their availability by plaintiffs' counsel. Paragraph 3 of the pretrial order*fn2 formalized plaintiffs' willingness to submit themselves voluntarily for examination, and the necessity was avoided for a Federal Rule of Civil Procedure 35(a)*fn3 order for examination made on formal motion for good cause shown and upon notice to the party to be examined. On April 7, after the conference, the District Judge mailed a form of pretrial order to both counsel requesting suggestions. It contained, among other things, the following:
"6. All medical reports shall be exchanged within five days of the receipt thereof by either plaintiffs' attorney or defendant's attorney."
On April 30, plaintiffs-petitioners informally objected to the inclusion of paragraph 6 in the order. That paragraph was not deleted from the order of the District Judge filed on May 11 and has become the contested point before this court.
On May 13, plaintiffs' counsel addressed a letter to the District Judge stating the reasons behind the objection to paragraph 6 of the pretrial order and requesting a hearing in the matter. The District Judge set forth his position in his "Memorandum and Order re Pre-Trial Order" of May 22. Paragraph 6 of the pretrial order was retained and the request for a hearing was denied.
Plaintiffs then petitioned this court for a writ of mandamus, prohibition or both. The District Judge has responded and the defendant has intervened in support of the ruling below. We shall treat this petition as one for a writ of mandamus. As the petitioners have challenged the power alone of the District Judge to order an exchange of medical reports under the facts of this case, as distinguished from merely alleging an error in construction or application of the law, this court has jurisdiction to consider the question raised in the petition.*fn4
The plaintiffs-petitioners focus on Federal Rule of Civil Procedure 35(b) (1)*fn5 as justifying their petition for a writ of mandamus. Though petitioners have agreed to submit to examination by physicians acceptable to the defendant-intervenor they have never requested copies of reports. Their position is that paragraph 6 of the District Judge's pretrial order is an invalid exercise of his power, for Federal Rule 35(b) (1), at least where an injured party has been examined by his adversary, calls for an exchange of medical reports only where the examined party first requests the exchange.*fn6 In such an instance, petitioners view Rule 35(b) (1) as the exclusive method of medical report exchange and, therefore, find any such exchange governed by the examined party's desire, or lack thereof, to commence the exchange.
The District Judge-respondent, through counsel, argues that Federal Rule 35(b) (1) is not the exclusive means for an exchange of medical reports, and thus a request by the examined party for an exchange is not a prerequisite here. Respondent finds justification for the ordered exchange both in the encouragement given by Federal Rule 16*fn7 for simplification of the issues before trial and in the "Standing Orders" (Local Court Rules) for the Eastern District of Pennsylvania.*fn8 The defendant-intervenor makes substantially the same argument in defense of the District Judge's order.
Petitioners reply that Rule 16 does not vest a District Judge with unlimited authority and that from the nebulous language contained therein it would be an erroneous and strained construction of Rule 16 to extract from it a power which would place it in conflict with Rule 35. Petitioners read Rule 16 literally as only giving a District Judge discretion with which he may order counsel to confer for the purpose of simplification of the issues. Finally, petitioners argue that both paragraph 6 of the pretrial order and the Standing Order of the Court as construed are in conflict with Rule 16, itself, for that Rule only authorizes a pretrial order to be entered which is based on action taken at the pretrial conference, and here there was no discussion of medical report exchange at the conference.
This court has not previously ruled on the precise issue as presented here, but the view we now take has been presaged by Seaboldt v. Pennsylvania Railroad Company.*fn9 In that case, although the facts do not indicate that there had been a medical examination of the allegedly injured plaintiff by the defendant, the District Judge, at the pretrial stage, ordered an immediate exchange of all medical information. At trial it appeared that the plaintiff had not complied with the District Judge's order, but the Judge apparently felt that such disobedience was not prejudicial to the defendant's case. In reversing on this and other grounds, we accepted the District Judge's finding that his pretrial order had not been complied with, but also found potential prejudice to the defendant. In Seaboldt, where neither the issue of the exclusivity of Rule 35 nor the issue of the lack of good cause for the medical exchange was raised, the propriety of the District Judge's order was accepted as an adjunct to his duty to administer effectively pretrial procedure. We see no reason under the circumstances at hand to alter our view.
What is the role of Federal Rule 35 relative to other discovery Rules?*fn10 Rule 35(b) (1) sanctions an examined party receiving upon request a copy of the report of his adversary's examination of him, and without a showing of good cause for the receipt thereof. Paragraph (b) (2) of Rule 35*fn11 indicates that, if such a report is requested, even were a state privilege statute to be otherwise effective to bar discovery*fn12 of the claimant's personal medical reports, that request waives the local privilege (here physician-patient) that may have otherwise barred discovery.*fn13 This offsets the advantage an examined party might have by his own use of Rule 35 (b) (1), when linked together with his refusal, on privilege grounds, to reciprocate under that same Rule 35(b) (1). Thus the procedure outlined in Rule 35 (b) merely makes available a method by which an examined party can avoid having to show cause for receipt of the report of his adversary's examination of him, if he is willing to waive any privilege that may be of benefit to him. Rule 35(b) was framed with this situation in mind and was not intended as the exclusive method for medical report exchange.*fn14
Acceptance of the position advocating Rule 35(b) (1) procedure as the exclusive method by which medical reports are to be exchanged would substantially herald a return to pre-discovery days, even in circumstances similar to the instant case, where a party defending against a personal injury claim has been able to examine for himself his allegedly injured adversary. Absent the presence of other barriers to full discovery,*fn15 a party involved in litigation should have the maximum opportunity for discovery open to him. Merely because he has been able to medically examine his adversary, that adversary's decision not to request a copy of the report of his examination under Rule 35(b) (1) should not necessarily bar discovery, under Rule 34, or otherwise, by the defending party, of his adversary's personal medical reports. Much may be learned over and above that revealed by a party's own examination of his adversary, by ...