Monday, October 21, 2013

ARTICLE: The Parameters of Independent Psychological and Vocational Exams

The below article of mine was recently published in the October 15, 2013 Pennsylvania Law Weekly and is republished here with the permission of American Law Media.  All rights reserved.

The Parameters of Independent Psychological and Vocational Exams

Daniel E. Cummins

As noted below, in the absence of any appellate guidance on this issue, the trial courts of Pennsylvania have struggled to craft appropriate remedies when disagreements in this regard arise between the litigating parties. The differing remedies allowed by the courts leave the issue in a somewhat erratic state in need of a sedative to calm the dispute.

Applicable Pennsylvania Rules

Under Pennsylvania Rule of Civil Procedure 4010(a)(2), "when the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by an examiner or to produce for examination the person in the party's custody or legal control."

Rule 4010(a)(4)(i) expressly provides that "the person to be examined shall have the right to have counsel or other representative present during the examination." Also under Rule 4010(a)(5)(i), an audio recording of the examination is allowed. There is no provision for any video recording of any examinations in the rule.

Under Rule 4010.1, pertaining to "Evaluation of Earning Capacity" by vocational experts, it is provided, under Subsection (b) that "the evaluation shall be subject to the provisions of Rule 4010(a)(3) through (b)(3) inclusive." In other words, the above-quoted rules also apply to interviews and testing that may be requested by vocational experts in their assessment of a plaintiff.

Trial Courts Differ

In an older Pennsylvania trial court opinion, former Luzerne County Court of Common Pleas Judge Michael T. Conahan (ahem) issued an order without any opinion in the case of Monahan v. Manitowoc, No. 465 - Civil - 2005 (C.P. Luz. Co. 2007), addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological independent medical exam arranged by the defense.

The order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, Pa., office of the expert by the plaintiff's own means or by means paid for by the defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, either by the plaintiff's own means or by means paid for by the defense.

More recently, Pennsylvania's discovery guru, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr., held in the case of Rotunda v. Petruska, No. GD08-018798 (C.P. Alleg. Co. 2010, Wettick, J.), that a neuropsychological IME could not be performed in the absence of plaintiffs counsel if an objection to that was lodged by the plaintiff.

Defense counsel had objected that the presence of another person at the psychological testing could alter the results and influence the test scores.

Wettick held that the wording of Rule 4010 "is clear" in allowing a party the right to have counsel or a representative present during the examination. Wettick also allowed the plaintiff to audio-record the proceeding, as allowed by the rules.

Earlier this year, in the case of Marion v. Lukaitis, No. 11-CV-7451 (C.P. Lacka. Co. Aug. 15, 2013 Minora, J.), Lackawanna County Court of Common Pleas Judge Carmen D. Minora 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.

In taking the middle-of-the-road approach, Minora relied upon Rule 4010, cited Wettick's opinion in Rotunda, and stated that, "although 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."

The defense in Marion also pointed to Rule 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, 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 additionally held that audio or video recording of the standardized testing portion of the examination would be prohibited as well.

Another recent decision along these lines was recently handed down in the Dauphin County Court of Common Pleas by Judge Bernard L. Coates Jr. in the case of Sanderson v. Geiger, 2011-CV-8539 (C.P. Dauphin Co. Aug. 22, 2013 Coates, J.). As noted below, Coates allowed for wider parameters for the defense-arranged examinations of the plaintiff than that allowed by Minora in the Lackawanna County case.

By order only, Coates ruled in Sanderson that the "plaintiff's attorney or representative shall be permitted to be present during all aspects of the examinations, without exception," in reference to the neuropsychological exam, the independent medical exam and the vocational interview and testing set up by the defense.

Coates also ruled that the "plaintiff, at her expense, shall be permitted to audio-record the entire IME, including the objective testing portion." The prevailing plaintiffs attorney in this matter, Robert F. Claraval of Harrisburg, Pa.-based Claraval & Claraval, advised that this portion of the order applied to all of the exams set up by the defense.

The court in Sanderson additionally ruled that the defense had to pay for the expenses for a hotel room for the plaintiff to stay in the night before her examinations to which she had to travel a distance. Plaintiffs counsel sought out this relief so as to allow the plaintiff to walk into the testing "fresh" and to prevent the plaintiff from having to undergo such examinations after a long drive, which could arguably impact the plaintiff's ability to test and alter the results.

In his order, Coates additionally required the plaintiff's experts and the defense experts to engage in a simultaneous exchange of all raw data, testing documents, expert reports and any other documents generated by the experts so as to prevent one side's experts from having information before the other side's experts obtained the same information.

As can be seen from the above, different state trial court judges have crafted different remedies in the absence of any appellate guidance to date.

The Issue in Federal Court

Over in the federal courts, Federal Rule of Civil Procedure 35(a)(1) provides that "the court where the action is pending may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner."

Unlike its state rule counterpart, there is no express provision in the federal rule allowing a third-party representative to attend an examination with the plaintiff.

In the U.S. District Court for the Middle District of Pennsylvania case Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie (now a member of the U.S. Court of Appeals for the Third Circuit) issued an order without any opinion holding that the plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation.

The defense brief in that case relied upon Federal Rule 35 and argued that a majority of federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere, as in Shirsat v. Mutual Pharmaceutical, 169 F.R.D. 68 (E.D.Pa. 1996), and Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981). In Showell v. Trump Taj Mahal Casino, No. CIV. A. 98-2141 (E.D.Pa. 2000), plaintiffs counsel was allowed to attend independent psychiatric examination, but only if he did not interrupt and sat silently behind his client.

As noted, Vanaskie chose to follow what the defense termed was the majority rule in the federal courts by precluding the attorney or any representative from attending the independent psychological examination with the plaintiff.

In the more recent Middle District case M.S. v. Cedar Bridge Military Academy, No. 1:08-CV-2271, PICS Case No. 11-0912 (M.D.Pa. May 13, 2011 Carlson, M.J.), Chief Magistrate Judge Martin C. Carlson also ruled that under Federal Rule 35, the plaintiffs attorney is not permitted to be present at a psychiatric examination of a minor party in a negligence action filed by parents on behalf of a minor plaintiff.

Need for Guidance

Until a remedy is provided by way of appellate guidance, it appears that litigants and the trial courts of Pennsylvania will have to continue to struggle in an unsettled fashion over the proper parameters for these types of examinations.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at

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