In his recent decision in the case of Marion v. Lukaitis, No. 11-CV-7451 (C.P. Lacka. Co.
Aug. 15, 2013
Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common
Pleas held that a Plaintiff was allowed to have counsel present during the first
two components of a neuropsychological examination. However, the Court ruled that, once
standardized testing began, a Plaintiff was precluded from having a third party
present. As such, Judge Minora took a middle road and the Defendant’s
Motion for a Protective Order was granted in part and denied in part in this
motor vehicle accident litigation.
Judge Carmen D. Minora Lackawanna County |
Judge Minora relied on Pa. R.C.P. 4010 and stated that, “[a]lthough there
appears to be no Appellate guidance on this specific matter, other
Pennsylvania Common Pleas Courts have concluded the words of Pa. R.C.P. 4010 are clear, and a party being examined has
the right to have counsel present during a mental examination.”
Judge Minora cited the Allegheny County
Court of Common Pleas case of Rotunda v.
Petruska, (C.P. Allegheny Co. January 13, 2011 ).
Judge Minora stated, however, that there is an exception to Rule 4010 that provides that,
if a treating physician who
performed testing in the absence of a third party “will be offering opinion
testimony at trial for which an expert opinion must be filed that makes any
reference to the testing.”
The defense
in this matter also relied upon Pa. R.C.P.
4012 which allowed a party to request from the court, for good cause
shown, any order with justice required to protect a party or person from
unreasonable annoyance, embarrassment, oppression burden, or expense.
In order to accommodate both Rules 4010 and 4012, Judge
Minora chose to allow the Plaintiff’s counsel, or a designated representative
of the Plaintiff, to be present during the first two components of the
neuropsychological examination involving a review of the Plaintiff’s records,
medical history, and background information.
However, once standardized testing began, the Plaintiff was precluded
from having a third party present.
The court also held that audio or video recording of the
standardized testing portion of the examination would be prohibited as well.
Anyone wishing to review Judge Minora's Opinion in the Marion case may click this LINK.
The Tort Talk blog post on Judge Wettick's decision in the Rotunda case on the same issue can be viewed HERE.
Source: "Digest of Recent Opinions," Pennsylvania Law Weekly (September 10, 2013).
Source of Cartoon: "The Far Side" by Gary Larson.
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