Judges Opinions, — April 15, 2015 10:00 — 0 Comments
Shearer, et vir vs. Hafer and Ford No. 2012-01286
Civil Action – Motor Vehicle Accident – Discovery – Defense Mental Examination – Presence of Counsel – Pa.R.C.P. 4010 and 4012 Reconciled – Motion for Protective Order.
Pennsylvania’s Rules of Civil Procedure, including those relating to discovery, shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. In this spirit, the purpose of the discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits.
Pa.R.C.P. 4010 provides that an order for a defense physical or mental examination may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. The person to be examined shall have the right to have counsel or other representative present during the examination. The party who is being examined may have made, upon reasonable notice and at the party’s expense, a stenographic or audio recording of the examination.
Pa. R.C.P. 4012 provides that upon motion by a party or by a person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following: that the discovery or deposition shall be only on specified terms and conditions; and that discovery or deposition shall be conducted with no one present except persons designated by the court.
Even though Rule 4010 uses the word “shall” in its description of counsel’s right to be present, Rule 4010 also states that the Court can specify the time, place, manner, conditions and scope of the examination and Rule 4012 authorizes a Court to make any order which justice requires, including a designation of who can and cannot be present during a discovery procedure. Consequently, the Court held that permitting a third party observer to be present during the standardized testing portion of the defense doctor’s examination or allowing recordation of the standardized testing would create an injustice that the Court did not believe was contemplated by a global evaluation of Pennsylvania’s discovery rules. However, the Court did not apply its ruling to the orientation and background interview phases of the examination; instead, it ruled that Plaintiffs’ counsel could be present during those phases of the examination.
The Court noted the existence of additional factors that it weighed in favor of the Defendants’ position: (1) no one was present when Plaintiffs’ doctor performed standardized testing upon Plaintiff; (2) official statements from the National Academy of Neuropsychology emphasize the need for privacy during standardized neuropsychological tests; and (3) permitting a third party observer into the neuropsychological examination room would afford Plaintiffs’ counsel with an irrefutable impeachment tool since the defense doctor had stated in writing that tests conducted with a third party observer present will not yield a valid result.
The Court noted that neither the parties nor its own research had revealed any Pennsylvania appellate decisions that specifically addressed the issue decided in this case.
Motion for Protective Order. C.P. of Lebanon County, Civil Action-Law, No. 2012-01286.
Matthew S. Crosby, Esquire, for Plaintiffs
Allyn M. Starry, Esquire, for Defendants
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
CIVIL ACTION – LAW
DIANA SHEARER and : NO. 2012-01286
JEFF SHEARER, :
Plaintiffs :
:
v. :
:
SCOTT HAFER and :
PAULETTE FORD, :
Defendants :
ORDER OF COURT
AND NOW, this 16th day of March, 2015, upon consideration of the Motion for Protective Order filed by the Defendants, and upon consideration of the arguments submitted by both parties, the Defendants’ Motion is granted as follows:
1. Plaintiffs’ counsel may be present during the preliminary interview phase of the neuropsychological examination to be conducted on behalf of the Defendants by Dr. Victor J. Malatesta.
2. During the phase of Dr. Malatesta’s evaluation that involves standardized testing, no individual shall be permitted in the evaluation room with Diana Shearer and Dr. Malatesta. Moreover, no recording device shall be permitted in the evaluation room.
3. Once Dr. Malatesta has completed his evaluation, the results thereof, including the results of his standardized testing, are to be provided to the Plaintiffs’ counsel.
BY THE COURT:
BRADFORD H. CHARLES, J.
APPEARANCES:
Matthew S. Crosby, Esquire For Diana Shearer and Jeff Shearer
HANDLER, HENNING &
ROSENBERG, LLP
Allyn M. Starry, Esquire For Scott Hafer and Paulette Ford
LAW OFFICES OF TWANDA
TURNER-HAWKINS
Opinion, Charles, J., March 16, 2015
Does a plaintiff’s counsel have a right to be present throughout an independent neuropsychological evaluation procured by a defendant where counsel’s presence could jeopardize the reliability of the results generated and where the presence of the plaintiff’s counsel would conflict with ethical rules governing the evaluator? In this case, Defendants argue that Pa.R.C.P. 4010 deprives us of discretion to prohibit the presence of Plaintiffs’ counsel under any circumstances. Plaintiffs respond that Pa.R.C.P. 4012 provides us with broad discretion to “make any order which justice requires.” For a multitude of reasons that we will articulate in more detail below, we agree with the legal and practical arguments proffered by the Defendants.
I. FACTS
This case stems from a motor vehicle accident that occurred on July 15, 2010. On that date, Scott Hafer was operating a vehicle owned by his mother, Paulette Ford. According to the Complaint filed by Plaintiffs, Mr. Hafer pulled his vehicle into the path of a vehicle operated by Diana Shearer, thereby causing an accident. As a result of this accident, the Plaintiffs seek monetary compensation for injuries they suffered.
One of Plaintiffs’ claims involves alleged cognitive harm that was triggered by the accident. According to documentation presented to this Court, Ms. Shearer was evaluated by Dr. Paul Eslinger, a neuropsychologist associated with the Hershey Medical Center. The neuropsychological examination conducted by Dr. Eslinger employed standardized testing procedures and was conducted without the presence of Plaintiffs’ counsel or any other third party. Dr. Eslinger has been listed by Plaintiffs as a trial witness.
Because of the above, the Defendants hired Dr. Victor Malatesta to conduct an independent neuropsychological examination. Notice of Dr. Malatesta’s examination was provided to Plaintiffs’ counsel. Plaintiffs’ counsel did not conceptually oppose the Defendants’ request for an independent neuropsychological examination. However, Plaintiffs’ counsel demanded to be present during all components of Dr. Malatesta’s neuropsychological examination.
When the precondition established by Plaintiffs’ counsel was communicated to Dr. Malatesta, the doctor objected. Via a letter dated May 6, 2014, Dr. Malatesta advised a representative of the Defendants:
[T]he attorney’s request to audiotape the testing evaluation poses significant challenges. I am bound by the ethical principles of psychologists and code of conduct by the American Psychological Association (APA) and the National Academy of Neuropsychology (NAN) to both protect the integrity of the examination and the security of the test materials. In this regard, the attached official statement of the National Academy of Neuropsychology is fairly clear regarding the presence of a third party observer (including audiotaping) during the administration of formal test procedures. Audiotaping during testing may represent a threat to the validity and reliability of the test data, and may compromise the valid use of normative standards. Thus, besides introducing a bias and potential distortion of the data, it is also inconsistent with the requirements for standardized test administration as set forth in the APA’s ethical principles.
Dr. Malatesta ended his letter by indicating that he would permit Plaintiffs’ attorney to be present during the interview portion of his examination. However, Dr. Malatesta would not permit either the presence of Plaintiffs’ counsel or audiotaping during the standardized test phase of his evaluation.
Dr. Malatesta’s proposed compromise was not acceptable to Plaintiffs’ counsel. Plaintiffs’ counsel reiterated his demand to be present at all phases of the independent neuropsychological examination. This would include the phase that involved standardized neurological testing. Unfortunately, the positions of Plaintiffs’ counsel and Dr. Malatesta created an impasse that required intervention by this Court.
We met with both counsel at a status conference on February 10, 2015. As a result of that status conference, we solicited legal briefs from both parties. We also asked the Defendants’ attorney to procure additional information from Dr. Malatesta. That information was communicated by way of a letter dated February 18, 2015. In that letter, Dr. Malatesta outlined with more specificity the phase of his testing for which he required privacy. In addition, he expanded upon the ethical constraints that govern his neuropsychological testing. He stated:
The ethical rules governing exams by neuropsychological experts upon which I am relying in precluding a third party from being present during parts of the testing are drawn from at least two sources.
First, the Official Statement of the National Academy of Neuropsychology (NAN) regarding Presence of Third Party Observers During Neuropsychological Testing, which was also published in the Archives of Clinical Neuropsychology (2000, 15, 379-380), indicates that the presence of a third party in the testing room represents a potential distraction, and that standardized test manuals (e.g, those for the Wechsler Tests described above) “have specifically stated that third party observers should be excluded from the examination room to keep it free from distraction” (NAN, 2000, p. 379). It also states that “the presence of a third party observer in the testing room is also inconsistent with the requirements for standardized test administration as set forth in the APA’s Ethical Principles of Psychologists and Code of Conduct” (NAN, 2000, p. 379), because it creates the potential for distraction and/or interruption. The specific rule of the APA’s Ethical Principles and Code is stated under Use of Assessments 9.02 (APA, 2002).
Second, the Official Statement of the National Academy of Neuropsychology (NAN) regarding Test Security: An Update which was approved by the NAN Board of Directors on 10/13/03, and was first published in the Archives of Clinical Neuropsychology (2000, 15, 383-386) also indicates that:
A major practice activity of neuropsychologists is the evaluation of behavior with neuropsychological test procedures. Many tests, for example, those of memory or ability to solve novel problems, depend to varying degrees on a lack of familiarity with the test items. Hence, there is a need to maintain test security to protect the uniqueness of these instruments. This is recognized in the 1992 and 2002 Ethical Principles of Psychologists and Code of Conduct (APA, 1992; Code 2.1, and APA, 2002; Code 9.11, Maintaining Test Security)…In the course of the practice of psychological and neuropsychological assessment, neuropsychologists may receive requests from attorneys for copies of test protocols, and/or requests to audio or videotape testing sessions. Copying test protocols, video and/or audio taping a psychological or neuropsychological evaluation for release to a non-psychologist potentially violates the Ethical Principles of Psychologists and Code of Conduct (APA, 1992; APA, 2002), by placing confidential test procedures in the public domain 2.10, and by making tests available to persons unqualified to interpret them (APA, 1992; Codes 2.02, 2.06 and 210; APA, 2002; Codes 9.04 and 9:11).
The issues raised by the parties have been extensively briefed and we have read all of the documentation submitted by Dr. Malatesta. We issue this Opinion in support of our decision to permit Dr. Malatesta to conduct the standardized testing portion of his examination in private.
II. DISCUSSION
Pennsylvania’s Rules of Civil Procedure, including those relating to discovery, “shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126. In this spirit, “the purpose of the discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits.” McGovern v. Hospital Service Assoc. of Northeast Pennsylvania, 785 A.2d 1012, 1015 (Pa.Super. 2001). These precepts provide both a foundation and context for all rules of civil procedure, including the ones cited by both parties.
The argument proffered by Plaintiffs is predicated upon the language of Pa.R.C.P. 4010. That Rule states:
(3) The order [for a defense physical or mental examination] may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.
(4) The person to be examined shall have the right to have counsel or other representative present during the examination…
(5) The party who is being examined…may have made upon reasonable notice and at the party’s expense a stenographic or audio recording of the examination…
Pa.R.C.P. 4010. Plaintiffs assert that the seemingly mandatory language of Pa.R.C.P. 4010(a)(4) – the person to be examined shall have the right to have counsel present – deprives this Court of any authority to grant the Defendants’ request for a private examination.
The Defendants rely upon Pa.R.C.P. 4012, which deals with protective orders. That order states, in pertinent part:
(a) Upon motion by a party or by a person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following: …
(2) That the discovery or deposition shall be only on specified terms and conditions…
(6) That discovery or deposition shall be conducted with no one present except persons designated by the court…
The Defendants argue that we have authority under Pa.R.C.P. 4012 to grant a protective order that effectively prevents Plaintiffs’ counsel from being present during the standardized test portion of Dr. Malatesta’s evaluation.
Neither the parties nor our own research has revealed any Pennsylvania appellate decision that specifically addresses the issue now before us. However, the Defendants have referred us to Commonwealth v. Banks, 943 A.2d 230 (Pa. 2007), which addressed the question within the context of a criminal prosecution. In Banks, the trial court permitted the Commonwealth to conduct a psychiatric examination of the defendant, but directed that the examination be recorded and conducted in the presence of the defendant’s counsel. The Commonwealth’s psychiatrist refused to conduct an examination under these conditions. On appeal, the Pennsylvania Supreme Court declared the psychiatrist’s decision to be “understandabl[e].” Id. at 306. The Court emphasized the lack of any binding or persuasive precedent that would support the defense counsel’s request to be present during all phases of a psychiatric examination. The Court stated:
While the High Court [United States Supreme Court] has not yet specifically addressed whether there is a constitutional right to the presence of defense counsel at psychiatric examinations, each of the six federal Circuits that has had occasion to do so has determined that a defendant’s constitutional rights are not violated when he is examined by a psychiatrist in the absence of defense counsel.
Id. at n.8.
Plaintiffs argue that Banks was decided under principles of criminal law and procedure. According to Plaintiffs, “the cases cited by the Defendants involve a criminal defendant’s Sixth Amendment right to counsel. To say these cases are factually distinguishable is a gross understatement. They simply have no place in interpreting the Pennsylvania Rules of Civil Procedure.” (Plaintiffs’ Reply Brief at 2). While we understand Plaintiffs’ argument, we nevertheless cannot ignore the fact that Banks was decided in a case that implicated an individual’s liberty, which is decidedly more important than a case like the one at bar that involves merely money. Nevertheless, we agree with Plaintiffs that Banks does not control our decision.
In the context of civil litigation, both parties have presented Common Pleas precedent to support their respective positions. Plaintiffs rely primarily upon the case of Rotunda v. Petruska, 18 Pa. D. & C. 5th 422 (C.P. Allegheny Co. 2010). In Rotunda, as in this case, the plaintiff’s attorney asked to be present during all phases of neuropsychiatric examination. Relying upon what it considered to be the mandatory language of Pa.R.C.P. 4010, the Allegheny Court of Common Pleas granted the request of plaintiff’s counsel to be present during the neuropsychological examination and stated:
The clear language of the rule allows only examinations that are possible when counsel is present. A trial court may not, in the exercise of its discretion, provide for an examination outside the presence of counsel because through the promulgation of a rule permitting counsel to be present, the Pennsylvania Supreme Court has decided that the interest of the party to be examined in receiving the protections afforded by the presence of his or her counsel outweigh the interest of the party seeking an examination that can only be conducted outside the presence of a third party.
Id. at 430.
The Defendants have referred us to a case from Lackawanna County that reached a result diametrically opposed to the one articulated in Rotunda. In Marion v. Lukaitis, 32 Pa. D.&C. 5th 287 (C.P. Lacka. Co. 2013), the Court focused upon the fact that the plaintiff’s treating physician had conducted a neuropsychological test that was not recorded and that was outside the presence of any attorney. The Court reasoned that requiring a defendant’s doctor to conduct testing contrary to accepted psychological protocol “would render the defense expert’s test results invalid.” Relying in part on Pa.R.C.P. 4012, the Court in Marion held:
In order to accommodate both Pa.R.C.P. 4010 and 4012, this Court will allow the Plaintiff’s counsel or their designated representative to be present during the first two components of the neuropsychological examination involving a review of the plaintiff’s records, medical history and other background information. However, once standardized testing begins and until it is concluded, the presence of a third party is precluded. The standardized testing shall be conducted with just Dr. King and Amanda Marion present in the examination room. Moreover, audio or video recording of the standardized testing is also strictly prohibited.
We find the reasoning in Marion to be more persuasive than the reasoning of Rotunda. In addition, we note the existence of additional factors that we have weighed in favor of the Defendants’ position. In no particular order of importance, those factors are:
(1) A copy of a Report from Clinical Neuropsychologist Paul Eslinger, Ph.D. was appended to Plaintiffs’ Pre-Trial Statement. Dr. Eslinger reported that Ms. Shearer “participated well in the neuropsychological testing and the results were judged to provide reliable and valid estimates of her current capabilities.” (Report of 3-21-14 at p. 2). The Report also reveals that Dr. Eslinger afforded Ms. Shearer with a battery of different tests, including the Wechsler Test of Adult Reading, the Wechsler Memory Scale Test, the Dellis Caplan Executive Function Test, the DKEFS Verbal Fluency Test, and the Wisconsin Card Sorting Test – 64. Dr. Eslinger reported: “Overall, the pattern of results indicate that Ms. Shearer struggles with tasks sensitive to attention – concentration, processing speed, word finding and executive functions.” (Report of 3-21-14 at p. 5). As a result, Dr. Eslinger opines that “Ms. Shearer will continue to experience cognitive difficulties as a result of the cerebral concussion” and that she suffers a “moderate level of disability with 25-30% rating.” (Report of 3-21-14 at p. 6). From the above, it is crystal clear that Ms. Shearer’s cognitive impairment will be an important issue at trial and Dr. Eslinger’s testing will be a key component of proof with respect to Ms. Shearer’s cognitive impairment claims.
Given the above, fairness requires that the Defendants be afforded a meaningful opportunity to investigate Dr. Eslinger’s testimony. In the opinion of this Court, meaningful investigation must include the ability to evaluate Ms. Shearer’s cognitive impairment claims using the same testing modalities that were employed by Dr. Eslinger. Significantly, no one was present when Dr. Eslinger performed standardized testing upon Ms. Shearer. If the Defendants are to have a meaningful opportunity to “compare apples with apples,” the environment of Dr. Malatesta’s testing must be similar to the environment enjoyed by Dr. Eslinger. This will not be possible if Plaintiffs’ counsel is permitted to remain in the examination room.
(2) Dr. Malatesta has provided official statements from the National Academy of Neuropsychology that address the need for privacy during standardized neuropsychological tests. Those official statements include the following admonitions:
“The presence of a third party observer during the administration of formal test procedures is inconsistent with recommendations promulgated in The Standards for Educational and Psychological Testing…that the psychological testing environment be distraction free.” (NAN Official Statement of 5-15-99).
“Standardized test manuals…have specifically stated that third party observers should be excluded from the examination room to keep it free from distraction.” (NAN Statement of 5-15-99).
“The presence of a third party observer in the testing room is also inconsistent with the requirements for standardized test administration as set forth in the APA’s Ethical Principles Of Psychologists and Code of Conduct” (APA, 1992) in that it creates the potential for distraction and/or interruption of the examination.” (NAN Official Statement of 5-15-99).
“The presence of a third party observer introduces an unknown variable into the testing environment which may prevent the examinee’s performance from being compared to established norms and potentially precludes valid interpretation of the test results.” (NAN Official Statement of 5-15-99).
“Observer effects can be magnified by the presence of involved parties who have a significant relationship with the patient (e.g. legal representatives who have a stake in the outcome of the examination…)…” (NAN Official Statement of 5-15-99).
“The weight of accumulated scientific and clinical literature with respect to the issue of third party observers in the forensic examination provides clear support for the official position of the National Academy of Neuropsychology that neuropsychologists should strive to minimize all influences that may compromise accuracy of assessment and should make every effort to exclude observers from the evaluation.” (NAN Official Statement of 5-15-99).
“Recording an examination can additionally affect the validity of test performance.” (NAN Official Statement of 10-5-99).
“Uncontrolled release of test procedures to non-psychologists via stenographic, audio or visual recording potentially jeopardizes the validity of these procedures for future use.” (NAN Official Statement of 10-13-03).
If we were to require Dr. Malatesta to conduct his testing in the presence of Plaintiffs’ counsel, it would place Dr. Malatesta in the position of being at odds with his own ethical duties. This is not something we are interested in or willing to do.
(3) We fear that permitting a third party observer into the neuropsychological examination room would afford Plaintiffs’ counsel with an irrefutable impeachment tool. Via the dispute that is now before us, Dr. Malatesta has emphasized in writing that tests conducted with a third party observer will not yield a valid result. If we were to force Dr. Malatesta to conduct his examination in the presence of a third party observer, Dr. Malatesta’s own written statements could be used as powerful and perhaps even irrefutable tools of impeachment. This would be profoundly unfair given that Dr. Malatesta has consistently advocated for private testing and given that Plaintiffs’ lawyer has been the one to push the need for a third party observer.
As we noted at the outset of our discussion, the Rules of Civil Procedure are intended to promote justice and fairness. Even though Rule 4010 uses the word “shall” in its description of counsel’s right to be present, Rule 4010 also states that the Court can “specify the time, place, manner, conditions and scope of the examination” and Rule 4012 authorizes a Court to “make any order which justice requires,” including a designation of who can and cannot be present during a discovery procedure. For the reasons we have outlined above, permitting a third party observer to be present during Dr. Malatesta’s examination would create an injustice that we do not believe was contemplated by a global evaluation of Pennsylvania’s discovery rules.
We will permit Plaintiffs’ counsel to be present during the orientation and background interview phases of Dr. Malatesta’s evaluation. However, when Dr. Malatesta moves into the phase of his examination that involves standardized testing, no one else will be permitted to be present, and no recording devices will be permitted. In essence, we will permit Dr. Malatesta to enjoy the same type of testing environment that was employed by Dr. Eslinger. We perceive no other way to ensure the integrity of Dr. Malatesta’s testing. An Order to accomplish the above will be entered simultaneous with this Opinion.