In a medical malpractice action alleging negligent prenatal care and delivery resulting in brain damage, the plaintiffs sought an order compelling the defendant physician to attend an examination under Rule 39.03 before the hearing of the defendant’s motion to strike the claim.
The defendant had moved to strike the statement of claim under Rules 21.01 and 25.11, asserting that the pleading disclosed no material facts and was incapable of response.
The court held that where a party asserts in written submissions that it cannot respond to a pleading yet files no evidence supporting that position, the opposing party may examine that party prior to the motion to test the factual basis of the assertion.
The proposed examination was limited to issues relevant to the motion to strike.
The court concluded that the moving party met the modest threshold for an examination under Rule 39.03.
