By Kevin L. Connors, Esquire

Does a Plaintiff have the right to have Counsel present during an Independent Neuropsychological Evaluation, an issue recently addressed by the Pennsylvania Superior Court in Shearer v. Hafer, decided on March 9, 2016?

Read my lips, the answer is No!

Holding that the Trial Court acted within its discretion in entering a Protective Order prohibiting the presence of third-party observers during the standardized test portion of the Neuropsychological Evaluation, the Superior Court, in an Opinion authored by Justice Panella, considered the following facts:

  • The Plaintiffs were suing for injuries from a 7/15/10 motor vehicle accident;
  • The Plaintiff claimed that he had sustained a brain injury in the accident, resulting in cognitive deficits;
  • The Plaintiff was evaluated by a Neuropsychologist, in the course of which standardized testing was administered to the Plaintiff, with the testing being conducted without third-party presence;
  • The Plaintiffs were suing the Defendant for personal injuries, including the Plaintiff’s alleged brain injury;
  • The Plaintiff’s Neuropsychologist was listed as a Trial witness by the Plaintiff;
  • The Plaintiff was referred for an Independent Neuropsychological Evaluation by the defense;
  • Plaintiffs’ Counsel demanded to be present during all stages of the Plaintiff’s defense Neuropsychological Evaluation;
  • Plaintiffs’ Counsel requested to audiotape the defense Neuropsychological Evaluation;
  • The Defendant’s Independent Neuropsychologist objected to Plaintiffs’ Counsel being present during the standardized testing administered during the Plaintiff’s Neuropsychological Evaluation, as well as objecting to the testing being audiotaped by Counsel, with the objection predicated on the ethical principles applicable to psychologists under the Codes of Conduct adopted by the American Psychological Association (APA) and the National Academy of Neuropsychology (NAN);
  • Defendant’s Neuropsychologist would, however, agree to allow Plaintiffs’ Counsel to be present during the Neuropsychologist’s interview portion of the defense Neuropsychological Evaluation;
  • Plaintiffs’ Counsel refused to agree to the Defendant’s Neuropsychologist’s examination terms; and,
  • The Trial Court convened a Status Conference for resolution of this issue, requiring both Parties to submit Legal Briefs;
  • Defendant’s Legal Brief contained a supplemental outline by Defendant’s Neuropsychologist as to the privacy necessary to authenticate the data from standardized testing administered during a Neuropsychological Evaluation; and,
  • Upon review of the Legal Briefs submitted by the Parties, the Trial Court entered an Order granting the Defendant’s request for a Protective Order, barring Plaintiffs’ Counsel from being present during the standardized testing portion of the Plaintiff’s defense Neuropsychological Evaluation.

In prohibiting Counsel from being present during the Plaintiff’s standardized neuropsychological testing, the Trial Court ordered that Counsel would be permitted to be present during the interview phase of the Plaintiff’s defense Neuropsychological Evaluation.

The Trial Court also barred Plaintiffs’ Counsel from audiotaping any portion of the defense examination.

The Plaintiffs appealed the Trial Court’s Order, seeking reconsideration.

The Trial Court denied the Plaintiffs’ Motion for Reconsideration, with the Plaintiffs then certifying the Protective Order to allow for an Appeal of the issue to the Pennsylvania Superior Court, as the Trial Court Order granting Defendant’s Request for Protective Relief was an Interlocutory and not a final Order disposing of all factual issues and facts concerning the Plaintiffs’ personal injury claims before the Trial Court.

Although Discovery Orders are typically deemed to be Interlocutory, and not, therefore, immediately appealable, as they do not dispose of the underlying litigation, the Superior Court held that Appellate jurisdiction could be conferred when a non-final Order requires review of a separable issue collateral to the main cause of action, and that issue is too important not to be reviewed until final judgment in the case.  Pa.R.A.P. 313(b).

Holding that the issue of whether a third-party could be present during a Plaintiff’s defense Neuropsychological Evaluation was “clearly separable from and collateral to” the Plaintiff’s main cause of action, the Superior Court held that issue in question was sufficiently important to warrant Appellate review.

Recalling the terrifying presence of a third-party observer, clutching a bloody knife, in the infamous shower scene with Janet Leigh in Hitchcock’s Psycho (1960), an unforgettable image forever etched in our neuropsychological synapses, the Superior Court noted that there were no Pennsylvania Appellate Court Decisions directly addressing a Litigant’s right to be present during a Psychological Examination, with the Plaintiffs arguing that Pa.R.C.P. 4010 absolutely entitled Counsel to be present during all aspects of the defense examination, with the Superior Court determining that the legislative intent behind Rule 4010 was balanced against the right to seek a Protective Order under Rule 4012, which specifically contemplated a Trial Court having the discretion to enter an Order directing that “Discovery or deposition shall be conducted with no one present except persons designated by the Court.”

Analyzing Rule 4012, the Superior Court also held that the Rule requires the Party seeking protection to show “good cause”, with the Trial Court being responsible for exercising judicial discretion to “strike an appropriate balance between competing interests, including a Litigant’s privacy interests (however they may be defined)… and the Court’s obligations to administer justice efficiently and prevent abuse of the Discovery process.”  Citing to Dougherty v. Heller, 97 A.3d 1257 (Pa. Super. 2014).

Finding that the Defendant had established “good cause” to support the Protective Order, the Superior Court held that the Trial Court’s granting of the Protective Order, barring Counsel’s presence during the standardized testing portion of the Plaintiff’s defense Neuropsychological Evaluation was a fair and thoughtful balance of the Plaintiff’s right to have Counsel present during a Neuropsychological Examination, and the Trial Court’s obligation to administer justice efficiently, in order to prevent the abuse of the Discovery process.

Holding that the professional and ethical concerns raised by the Defendant’s Neuropsychologist were neither abstract nor unsubstantiated, the Superior Court held that the Defendant’s right to seek the Protective Order was certainly appropriate to safeguard the integrity and reliability of the defense Neuropsychological Examination.

Finding no abuse of the Trial Court’s discretion to grant the Defendant’s Motion for a Protective Order, the Superior Court affirmed the Trial Court’s Order, barring Plaintiffs’ Counsel from being present during the standardized testing portion of the Plaintiff’s defense Neuropsychological Evaluation, also barring Plaintiffs’ Counsel from audiotaping any portion of the examination.

Credit for this ruling, apparently one of first impression, should be given to the Defendant’s Neuropsychologist, in the course of presenting the Trial Court with substantive ethical and professional concerns regarding the necessity of maintaining elements of privacy during a defense Neuropsychological examination.

Take Away

We have all been here.

The issue is quite simple.  One of who should be in control.

Does the Plaintiff, claiming injury as a result of the alleged negligence of a Defendant, have the right to control how Discovery is conducted?

This question necessarily implicates, as it would in most jurisdictions, the appropriate rule of civil procedure, with Discovery, in almost all instances, having rational limits intended to prevent abuse, as well as to encourage an equitable balance to the information developed by the Parties during the Discovery process, in avoidance of undue advantage.

After all, what is fair is fair.

ConnorsO’Dell LLP

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Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at [email protected] (Phone: 610-524-2100 Ext. 112).