(concurring) — I concur with the majority’s well reasoned opinion on all points. The State is not entitled to a CR 355 exam during a chapter 71.09 RCW civil commitment proceeding, and must instead be satisfied with the examinations authorized by the statute. Given my grave concern at its application in the courts below, I write separately, as Justice William O. Douglas once did, to comment on CR 35 exams during discovery generally.
CR 35 empowers a court to order an exam of a party whose physical or mental condition is in controversy, upon a showing of good cause, and after consideration of whether alternative, less intrusive, and burdensome methods of acquiring the information, exist. The seminal case articulating the federal CR 35 “good cause” and “in controversy’ requirements is Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964). Schlagenhauf is the only *496case in which the United States Supreme Court has considered the significant constitutional issues attendant to such examinations. In light of Schlagenhauf and the deeper principles it rests upon, I strongly disagree with the holding below (properly overruled by the majority on other grounds) that the “good cause” requirement is satisfied merely “when the State can show that the RCW 71.09.040(4) examination is insufficient.” In re Det. of Williams, 106 Wn. App. 85, 97, 22 P.3d 283 (2001). “Good cause” must require more than that. This Court of Appeals holding cannot be squared with the United States Supreme Court’s interpretation of the parallel federal rule or the plain language of our own CR 35.
In Schlagenhauf, the Supreme Court overturned a district court order directing that a defendant be examined by nine separate physicians. Strikingly, the Supreme Court took this action despite the fact that, in large part, the question was moot. First, the Supreme Court explicitly rejected the argument that a party waives the constitutional right of privacy merely because litigation exists. Privacy is especially cherished and protected under Washington State law. See, e.g., Reid v. Pierce County, 136 Wn.2d 195, 961 P.2d 333 (1998) (finding actionable the disclosure of autopsy photos). Further, a required waiver of one constitutional right as a condition of exercising the right of access to the courts might, in itself, run afoul of the constitution. Schlagenhauf, 379 U.S. at 114; see also In re Pers. Restraint of Addleman, 139 Wn.2d 751, 991 P.2d 1123 (2000) (inmate may not be denied parole based in any part upon filing actions against the indeterminate sentencing review board or department of corrections).
Next, the Supreme Court took pains to establish that CR 35 requires some actual need, shown affirmatively by the movant, before an exam may be ordered. Schlagenhauf, 379 U.S. at 118. The movant must show that there is not some other (preferably less invasive and disruptive) way to acquire the desired information. Schlagenhauf, 379 U.S. at 119. Conclusory allegations are not sufficient to show either *497good cause or controversy. Schlagenhauf, 379 U.S. at 120. The trial judge is obligated to “delineate the ‘conditions, and scope’ of the examinations.” Schlagenhauf, 379 U.S. at 121 n.16 (quoting Fed. R. Civ. P. 35). Since the trial judge had entered the order without adhering to these standards, the Supreme Court vacated the CR 35 order and remanded.
While concurring with much of the law articulated by the majority, Justice Douglas would have denied remand, and simply vacated the original discovery order as a matter of law. His admonition should not be forgotten:
I do not suppose there is any . . . who does not suffer from some ailment, whether it be ulcers, bad eyesight, abnormal blood pressure, deafness, liver malfunction, bursitis, rheumatism, or what not. If he or she is turned over to the plaintiff’s doctors and psychoanalysts to discover the cause of the mishap, the door will be opened for grave miscarriages of justice. When the defendant’s doctors examine plaintiff, they are normally interested only in answering a single question: did plaintiff in fact sustain the specific injuries claimed? But plaintiff’s doctors will naturally be inclined to go on a fishing expedition in search of anything which will tend to prove that the defendant was unfit to perform the acts which resulted in the plaintiff’s injury. And a doctor for a fee can easily discover something wrong with any patient—a condition that in prejudiced medical eyes might have caused the accident. Once defendants are turned over to medical or psychiatric clinics for an analysis of their physical well-being and the condition of their psyche, the effective trial will be held there and not before the jury. There are no lawyers in those clinics to stop the doctor from probing this organ or that one, to halt a further inquiry, to object to a line of questioning. And there is no judge to sit as arbiter. The doctor or the psychiatrist has a holiday in the privacy of his office. The defendant is at the doctor’s (or psychiatrist’s) mercy; and his report may either overawe or confuse the jury and prevent a fair trial.
Schlagenhauf, 379 U.S. at 125 (Douglas, J., dissenting in part). We should heed Justice Douglas’s wise words when determining whether the movant has established good cause, controversy, lack of alternative methods to acquire the needed information, and appropriate scope.
*498Aside from the constitutional concerns, an examination by an expert hired by the opposition is rarely a desirable experience. Examinations can be financially, physically, and emotionally demanding. Parties are often required to take considerable time away from work or other activities, to travel inconvenient distances to the expert’s office, and to wait significant amounts of time to be subjected to questions and questionnaires posed by experts suspicious of their answers and motives. Examinations often involve unwanted touching, poking, and twisting, causing discomfort and indignity, all done pursuant to a written order of a judge vested with the authority of the State. Such extreme exercise of judicial power should happen only upon a most stringent showing of necessity.
Washington’s Civil Rule 35 provides in pertinent part:
When the mental or physical condition ... of a party ... is in controversy, the court. . . may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist.... The order may be made only on motion for good cause shown . . . and shall specify the . ..scope ....
Former CR 35(a) (1993). The rule provides for “a” examination; the rule does not provide for infinite exams. In an appropriate case, good cause might be shown for more than one examination. However, subjecting a party to more than one episode of poking, prodding, and invasion of physical and mental privacy should be the rare exception. If multiple experts are needed, great efforts should be taken to consolidate the exams. One examination does not mean one expert; our rule clearly contemplates multiple examiners at an exam. Former CR 35(a). Frequently, one examiner can perform all of the tests necessary and lay a foundation for multiple experts. It is not “good cause” to subject a party to multiple examinations because the opposition picked the wrong examiner the first time, or because scheduling several experts to be in one place will be tricky or inconvenient for the movant’s experts. Inability to coordinate the calendars of experts is not “good cause” for more than one exam. *499It is not “good cause” that a party desires multiple expert witnesses who have each actually bent and twisted a party’s limbs. Medical science has established standards, such as range of motion in degrees, which may be recorded by one examiner and interpreted by others. Similarly, mental disorders can be measured by standardized psychometric testing with objective scores.6 Different experts may interpret the data differently. Further, the court should freely order that the exam be recorded on videotape which can be viewed by several experts. See former CR 35(a). Of course, psychometric testing is generally not diagnostic and must be correlated with clinical findings. Still, a party’s desire to present multiple expert witnesses in multiple specialties to testify on an issue is not “good cause.” Also, the mere mental status of a party does not justify separate examinations by a psychologist, a psychiatrist, a neurophysiologist and a neurologist.
I make these comments because it is clear from the record in the cases before us that the State, and many courts below, believe the State is entitled to multiple examinations under CR 35. Multiple CR 35 exams are generally an abuse by the judge, not the moving party. Read properly, the rule, the underlying principles, and the common law establish that if the trial judge properly applies CR 35: (1) to require a showing of good cause, (2) to require a showing that there is no less intrusive and burdensome method to obtain the information desired, and (3) to properly delineate the condition and scope of the CR 35 exam, additional examinations would be allowed in only the most rare and exceptional of circumstances.
I concur with the majority on all points of law, and in result.
Reconsideration denied December 11, 2002.
CR 35 was amended September 1, 2001; therefore, former CR 35 (1993) is the applicable rule in this matter.
I recognize that the standards in some professions require independent examinations. However a party wishing to bring multiple experts to bear must establish good cause for each subsequent exam, which should include good cause for why the information could not have been garnered in an earlier exam. I find myself skeptical there would often be good cause to subject a party to a physical or mental exam twice.