Judge Minora of Lackawanna County Takes the Middle Road on Neuropsychological IME Issue

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.

Judge Minora of Lackawanna County Reviews Attorney-Client and Work Product Privileges Claimed in Post-Koken Discovery Dispute

In an appeal from a decision from the Lackawanna County Special Trial Master for discovery matters in the Post-Koken case of Marion v. Lukaitis and Motorists Mutual Insurance Company, No. 2011-CV-7451 (C.P. Lacka. Co. Nov. 12, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas affirmed the Special Trial Master's decision on a variety of discovery issues and denied the appeal of the Defendant, Motorists Mutual Insurance Company. 

Judge Carmen D. Minora
Lackawanna County

This matter arose out of a July 30, 2011 motor vehicle accident during which the Plaintiff and her minor children were in a stopped vehicle when the tortfeasor Defendant, allegedly traveling at a high rate of speed and under the influence of alcohol, struck the Plaintiff’s vehicle, allegedly resulting in injuries.  

At the time of the accident, the tortfeasor Defendant had no automobile liability insurance.  As such, in addition to suing the tortfeasor Defendant, the Plaintiffs also sued Motorist Mutual Insurance Company in support of an uninsured motorist benefits claim.  

During the course of discovery, the Plaintiff filed a Motion to Compel against the Defendant, Motorist Mutual Insurance Company, alleging insufficient responses to Interrogatories and a Request For Production of Documents.   The Plaintiff’s Motion to Compel was granted by Order of Special Trial Master Burke, after which the Defendant carrier filed its appeal up to Judge Minora in the Lackawanna County Court of Common Pleas.   

One of the central issues presented was the Plaintiff’s discovery requests seeking disclosure of information relating to the Defendant carrier’s evaluation and investigation of the claims for UM benefits, the terms of the policy under which the claim was made, and the nature of the claims handling after suit was filed.   The Defendant carrier asserted that these discovery requests were not relevant and/or were barred by the attorney/client privilege, the work product protection, or Pa. R.C.P.  4003.3. 

According to the Opinion, the Plaintiffs were more specifically requesting information regarding the records custodian for the insurance application in effect at the time of the accident, information regarding whether the policy, as originally issued, included a mandatory arbitration provision, information on the premiums paid, and information regarding whether or not the Defendant carrier maintained that the Plaintiff was at fault for the accident and/or otherwise barred from recovery.  

The Defendant carrier responded by asserting that it had produced all relevant and discoverable pre-accident log notes, with appropriate redactions.  The Defendant carrier argued that requiring the carrier to produce its post-suit log notes in this claim for UM benefits would violate the attorney/client privilege, the work product protection, or Pa. R.C.P.  4003.3. 

The Plaintiff asserted that relevancy was not a basis for a privilege argument and that they were seeking information reasonably calculated to lead to the discovery of admissible evidence.   The Plaintiff additionally argued that a claim against post-suit discovery was not a recognized privilege.   The Plaintiff additionally confirmed that they were not seeking any attorney-client or work product privileged portions of the post-suit log notes. 

After noting the Pennsylvania Rules of Civil Procedure generally permit discovery that is broad and liberal, the court denied the Defendant’s appeal.  

Judge Minora initially found that there was law on point allowing for the discovery of the insurance policy in question in both the Rules of Civil Procedure and under Pennsylvania case law.

As to the Plaintiff’s request for information regarding the Defendant’s investigation and evaluation of the UM claim, Judge Minora found that such information, including the identity of the records custodian of the insurance application, as well as the specific information related to the Defendant carrier’s evaluation and investigation of the claim presented, was discoverable as such information pertained to matters stemming from the insurance investigators, and not Defendant’s legal counsel.   As such, the requested information was found not to fall under the attorney work product privilege.

In terms of the Plaintiff’s request for production of post-suit claims log notes, the court noted that the Plaintiff had withdrawn its request for the production of documents requesting the Defendant carrier’s impressions upon the merits of the UM claim as such discovery would violate Rule 4003.3.   Rather, it was emphasized that the Plaintiff was seeking information regarding the methods the Defendant carrier utilized in arriving at its evaluation as well as information upon which individuals were charged with employing those methods. 

Since this UM case involved a breach of contract action, the court found that the production request regarding how the Defendant carrier evaluated a claim, and thereby fulfilled it obligations under the contract in question, were relevant as such information was reasonably calculated to lead to the discovery of admissible evidence.   As such, this discovery was also allowed.  

Anyone desiring a copy of this Opinion by Judge Minora in the case of Marion v. Lukaitis and Motorists Mutual Insurance Company may contact me at dancummins@comcast.net.

I send thanks to Attorney Ann Farias of the O'Donnell Law Offices in Kingston, PA for bringing this case to my attention.

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

Pennsylvania Law Weekly

October 15, 2013

By

Daniel E. Cummins

Daniel E. Cummins

 

 

 

 

 

 

A recent recurring issue in Pennsylvania civil litigation matters has involved the parameters of an independent neuropsychological or psychological examination with respect to vocational testing arranged by the defense of an injured plaintiff.

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 www.torttalk.com.

Recent Luzerne and Lackawanna County Decisions on Parameters of Expert Vocational Interviews

In the matter of Franchetti v. Ranieli, No. 7461 of 2010 (CP Luz. Co. 2012 Burke, P.J.), President Judge Thomas F. Burke, Jr., granted a Plaintiff's Motion for Protective Order and limited a vocational expert’s examination to four (4) hours.  President Judge Burke further compelled that the examination would be conducted Interrogatories in a local venue and not in the vocational expert’s office in Valley Forge, PA.

 In an Order entered by the Honorable Michael T. Vough in the matter of Price v. Price, Auto Glass Unlimited and State Farm Mutual Automobile Insurance Company, No. 13625 of 2010 (C.P. Luz. Co. 2012 Vough, J.), Judge Vough directed that a vocational expert appear to testify and explain before the Court on the issue of the location and requested length of his desired interview of the Plaintiff.  Reportedly, in response, the vocational expert agreed to be guided by the restriction set by President Judge Burke in Franchetti and the November 19, 2012 hearing on the Motion in the Price case was cancelled.

In neighboring Lackawanna County, in the case of Marion v. Motorist Mutual Insurance Company, No. 11-CV-7451 (C.P. Lacka. Co. 2012 Burke, D.M.), Attorney Henry Burke, in his capacity as the Lackawanna County Discovery Master, essentially adopted President Judge Thomas Burke’s position from the Franchetti case.  Judge Henry Burke restricted a vocational expert's examination to five (5) hours, ordered that it take place at a local venue, and that a representative of Plaintiff’s attorney’s office be allowed to be present (consistent with Rule 4010 and Rule 4010.1).

 

Anyone desiring a copy of these decisions may contact me at dancummins@comcast.net.

 

I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices in Kingston, PA for bringing these decisions to my attention.

Dauphin County Court Rules on Parameters of Neuropsychological and Vocational Exams

As noted in a recent Tort Talk blog post, Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas took the middle road in the case of  Marion v. Lukaitis while addressing the issue of third parties being in attendance during a neuropsychological IME of a plaintiff in a personal injury matter. 

More specifically, Judge Minora  held that a Plaintiff was allowed to have counsel present during the first two components of a neuropsychological examination.  However, the Lackawanna Court ruled that, once standardized testing began, a Plaintiff was precluded from having a third party present.  Click HERE to view that Tort Talk post, which contains a link to Judge Minora's actual Opinion as well as a link to a decision by Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas on the same issue.

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, Judge Coates allowed for wider parameters for the defense-arranged examinations of the plaintiff.

By Order only, Judge 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.

Judge Coates also ruled that the "Plaintiff, at her expense, shall be permitted to audio record the entire IME, including the objective testing portion."  I was advised that this portion of the Order applied to all of the above-noted exams set up by the defense.

The court 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.  Plaintiff's 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, Judge Coates also 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 expert obtained the same information.

Anyone wishing to review Judge Coates detailed Order may click this LINK.


I send thanks to Attorney Robert F. Claraval of the Harrisburg, Pennsylvania law firm of Claraval & Claraval for bringing this decision to my attention.


Source of image: www.condanaststore.com

Proper Parameters for Neuropsychological IME Addressed by Pennsylvania Superior Court

In its recent decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9, 2016 Panella, J. Ott, J., and Jenkins, J.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of a Defendant’s Motion for a Protective Order prohibiting the presence of third party observers during the standardized test portion of a neuropsychological evaluation.  

According to the Opinion, this matter arose out of a motor vehicle accident.   Among the injuries claimed by the Plaintiff was cognitive harm allegedly triggered by the accident.   The Plaintiff treated with a neuropsychologist and, during that treatment, the Plaintiff’s treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the Plaintiff’s attorney or any other third party.  

During the course of the litigation, the defense hired a doctor to complete an independent neuropsychological examination.   Plaintiff’s counsel demanded to be present during all components of the neuropsychological examination.   The IME doctor objected to this request, including the Plaintiff’s counsel’s request to audio tape the testing evaluation.   The IME doctor pointed to an official statement of the National Academy of Neuropsychology as indicating that third party presence and/or audio taping during testing may represent a threat to the validity and reliability of the test data.   The IME doctor indicated that he would allow the Plaintiff’s attorney to be present during the interview portion of the examination.  However, the IME doctor would not permit either the presence of the Plaintiff’s counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.

This proposed compromise by the IME doctor was not acceptable to Plaintiff’s counsel.  

The issue then came before the trial court, which entered an Order granting the Defendant’s request for protective order.  That order stated that, although Plaintiff’s counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the Plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing.   The order further provided that no recording device would be permitted in the evaluation room.  

The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant’s right to counsel during a psychological examination.   As noted, on appeal, the Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue.  The court also found support for the trial court’s decision under Pa. R.C.P. 4010, pertaining to Physical and Mental Examination of Person.  

The Superior Court also noted that, although there was “no case law [that] address of the application of Rule 4012 to Rule 4010,” the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive Rule which covers all depositions and all discovery.   Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.  

The Superior Court went on to note that Rule 4012 did not empower the trial court to issue protective orders carte blanche.  Rather, the moving party still had the burden of showing “good cause” for the issuance of a protective order.   The court noted that the good cause standard “strikes an appropriate balance between competing interests, including a litigant’s privacy interest (however they be defined)…. and the court’s obligation to administer justice efficiently and prevent abuse of the discovery process.”   See Op. at 11 [citation omitted].  

Here, the Superior Court found that the Defendants had established good cause for the trial court’s issuance of the protective order.  In the end, the Superior Court found that the trial court’s decision represented a fair and thoughtful balance of both the patient’s interests and the presence of counsel during a neuropsychological examination and the court’s obligation to administer justice efficiently and to prevent abuse of the discovery process.   See Op. 12.   As such, the trial court’s order was affirmed as the Superior Court found no abuse of the trial court’s discretion in this regard. 

Anyone desiring a copy of this decision may click this LINK.

Additional Commentary: For one of the first decisions on this same issue with the same result (which decision actually predates and is cited by the trial court in its decision in Shearer), see Lackwanna County Judge Carmen D. Minora’s Opinion in the case of Marion v. Lukaitis in this Tort Talk post HERE.

UPDATE:  This decision was later vacated by the Pennsylvania Supreme Court who ruled that the Superior Court erred in considering the appeal in the first place as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court's order only met one of the three prongs of the collateral order doctrine. 

To view this decision by the Pennsylvania Supreme Court, click HERE.  The Concurring Opinion by Justice Wecht, and the Dissenting Opinion by Justice Mundy are not Linked here.