J-A34007-15
2016 PA Super 61
DIANA SHEARER AND JEFF SHEARER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
SCOTT HAFER AND PAULETTE FORD
Appellees No. 665 MDA 2015
Appeal from the Order March 17, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2012-01286
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
OPINION BY PANELLA, J. FILED MARCH 09, 2016
Appellants, Diana Shearer and Jeff Shearer, appeal from the order
entered on March 17, 2015, in the Court of Common Pleas of Lebanon
County, granting Appellees, Scott Hafer’s and Paulette Ford’s motion for a
protective order. On appeal, Appellants argue that a litigant has an absolute
right to the presence of counsel during an independent neuropsychological
evaluation pursuant to Pennsylvania Rule of Civil Procedure 4010. Appellees
counter that the presence of third party observers jeopardizes the validity
and reliability of the examination and that Pennsylvania Rule of Civil
Procedure 4012 provides the court with the discretion to issue “any
[protective] order which justice requires.” For the following reasons, we find
that the trial court was well within its discretion in entering a protective
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order prohibiting the presence of third party observers during the
standardized test portion of the neuropsychological evaluation.
We take the underlying facts in this matter from the trial court’s March
17, 2015 opinion.
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 [the Appellants,] Mr. Hafer
pulled his vehicle into the path of a vehicle operated by Dana
Shearer, thereby causing an accident. As a result of this
accident, the [Appellants] seek monetary compensation for
injur[ies] they suffered.
One of [the Appellants’] claims involves alleged cognitive
harm that was triggered by the accident. According to
documentation presented [to the trial court,] M[r]s. Shearer was
evaluated by Dr. Paul Eslinger, a neuropsychologist with the
Hershey Medical Center. The neuropsychological examination
conducted by Dr. Eslinger employed standardized testing
procedures and was conducted without the presence of
[Appellants’] counsel and any other third party. Dr. Eslinger has
been listed by [Appellants] as a trial witness.
Because of the above, the [Appellees] hired Dr. Victor
Malatesta to conduct an independent neuropsychological
examination. Notice of Dr. Malatesta’s [proposed examination]
was provided to [Appellants’] counsel. [Appellants’] counsel did
not conceptually oppose the [Appellees’] request for an
independent neuropsychological examination. However,
[Appellants’] counsel demanded to be present during all
components of Dr. Malatesta’s neuropsychological examination.
When the precondition established by [Appellants’] counsel
was communicated to Dr. Malatesta, the doctor objected. Via a
letter dated May 6, 2014, Dr. Malatesta advised a representative
of the Appellees:
[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
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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[ing] 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
[Appellants’] attorney to be present during the interview portion
of his examination. However, Dr. Malatesta would not permit
either the presence of [Appellants’] counsel or audiotaping
during the standardized test phase of his evaluation.
Dr. Malatesta’s proposed compromise was not acceptable
to [Appellants’] counsel. [Appellants’] 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 [Appellants’] counsel and Dr. Malatesta created
an impasse that required intervention by the [trial court].
[The trial court] met both counsel at a status conference
on February 10, 2015. As a result of that status conference, [the
court] solicited legal briefs from both parties. [The court] also
asked the [Appellees’] 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.
The ethical rules governing exams by neuropsychological
experts upon which I am relying on preclude 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
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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 … “have specifically
stated that third party observers should be excluded from
the examination room to keep 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
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persons unqualified to interpret them (APA, 1992;
Codes 2.02, 2.06 and 2[.]10; APA, 2002; Codes 9.04
and 9.11).
Trial Court Opinion, 3/17/15 at 2-5.
After reviewing the briefs of the parties, along with the information
provided by Dr. Malatesta, the trial court entered an order granting
Appellees’ request for a protective order. The order stipulated that although
Appellants’ counsel “may be present during the preliminary interview phase
of the neuropsychological examination,” “no individual shall be permitted in
the evaluation room with Diana Shearer and Dr. Malatesta” during the phase
of the evaluation that involves standardized testing. Order, 3/17/15. The
order further provided that “no recording device shall be permitted in the
evaluation room.” Id. Finally, the trial court required that the results of the
examination be provided to plaintiff’s counsel.
Appellants filed a timely notice of appeal of the court’s March 17 order,
in addition to a motion for reconsideration of that order. The trial court later
denied their motion for reconsideration. Appellants additionally filed an
application to amend the protective order to include certification of the
matter as an interlocutory appeal with permission pursuant to Pa.R.A.P.
1311(b), which the trial court also denied.
By order of May 12, 2015, this Court directed Appellants to show
cause as to why this appeal should not be quashed as interlocutory.
Appellants filed a response. This Court then discharged the May 12 show
cause order and referred the issue of appealability to the merits panel.
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Prior to reaching the merits of Appellants’ argument, we must
determine whether we have jurisdiction to entertain Appellants’ appeal. An
appeal lies only from a final order unless otherwise permitted by rule or
statute. See Pa.R.A.P. 341(b).
Generally, discovery orders are deemed interlocutory and not
immediately appealable because they do not dispose of the
litigation. A non-final order may be reviewed if it is separable
from and collateral to the main cause of action, the right
involved [is] too important to be denied review and the question
presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b).
All three factors set forth in Rule 313 must be satisfied. The
Pennsylvania Supreme Court has stated that Rule 313 must be
construed narrowly: Claims must be analyzed not with respect to
the specific facts of the case, but in the context of the broad
public policy interests that they implicate. Only those claims that
involve interests deeply rooted in public policy can be considered
too important to be denied review.
Leber v. Stretton, 928 A.2d 262, 265 (Pa. Super. 2007) (some citations
and all internal quotation marks omitted).
Here, we find that the order granting Appellees’ request for a
protective order to prohibit the presence of third parties during Mrs.
Shearer’s neuropsychological examination is clearly separable from and
collateral to the main cause of action, which is a personal injury action.
Second, we find that any matter implicating and potentially infringing upon a
litigant’s right to counsel is undeniably too important to be denied review.
Thirdly, we are convinced that the question presented is such that if review
is postponed until final judgment, the claim made concerning the Appellant’s
right to have counsel present during a neuropsychological examination
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would be irreparably lost. See, e.g., Commonwealth v. Shearer, 882 A.2d
462, 469 (Pa. 2005) (finding postponement in reviewing order compelling
minor complainant to submit to a psychological exam would render
underlying claim irreparably lost, given that there is no way to “turn back
the clock” should it later be determined that the complainant should be free
from such an examination). Accordingly, we find that Appellants have
properly appealed from a collateral order pursuant to Pa.R.A.P. 313, and we
proceed to address the merits of Appellants’ claim on appeal.
Appellants frame the issue raised on appeal as follows.
Whether the trial court erred in granting [Appellees’] motion for
a protective order where Mrs. Shearer has the right to have her
counsel present and to audio record all portions of the
neuropsychological examination pursuant to the clear language
of Pa.R.C.P. 4010, and in the alternative, [Appellees] have not
shown good cause to justify the trial court stripping Mrs. Shearer
of her statutorily protected rights.
Appellant’s Brief at 4.
This Court has previously recognized that the issuance of a protective
order lies within the discretion of the trial court.
There are no hard-and-fast rules as to how a motion for a
protective order is to be determined by the court. Whether to
grant or deny the motion, and what kind or kinds of protective
orders to issue are matters that lie within the sound judicial
discretion of the court, and the court’s determination as to these
matters will not be disturbed unless that discretion has been
abused.
Hutchinson v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992) (citation
omitted). To the extent that Appellants’ question necessitates our analysis
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and interpretation of the Pennsylvania Rules of Civil Procedure, our standard
of review is de novo. See Sigall v. Serrano, 17 A.3d 946, 949 (Pa. Super.
2011).
Pennsylvania Rule of Civil Procedure 4010, entitled Physical and Mental
Examination of Persons, provides in relevant part as follows.
The person to be examined shall have the right to have counsel
or other representative present during the examination. The
examiner’s oral interrogation of the person to be examined shall
be limited to matters specifically relevant to the scope of the
examination.
Pa.R.C.P. 4010(a)(4)(i). Subdivision (a)(5)(i) further provides that “[t]he
party who is being examined or who is producing for examination a person
in the party’s custody or legal control may have made upon reasonable
notice and at the party’s expense a stenographic or audio recording of the
examination.”
Initially, we note that there is no Pennsylvania Appellate Court decision
that directly addresses a litigant’s right to counsel during a psychological
examination.1 Appellants rely, in part, upon the plain language of Pa.R.C.P.
4010 to support their position that the right to have counsel present during
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1
In State Farm Mutual Automobile Insurance Co. v. Morris, 432 A.2d
1089, 1092 (Pa. Super. 1981), a panel of this Court posited, in dictum, that
the decision to allow the presence of counsel during a psychological
examination was within the discretion of the trial court. Morris, however,
predates the 1998 amendment of Pa.R.C.P. 4010 to include the right to have
counsel present during the examination. Accordingly, it has no bearing upon
our analysis in this case.
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the examination is absolute. They assert that the legislature’s designation of
the imperative “shall” indicates a clear intent that the right to counsel during
a psychological or medical examination is mandatory.
While superficially appealing, there is an important caveat to
Appellants’ bright-line interpretation. When interpreting the legislature’s use
of the word “shall” in a different context, this Court has previously stressed
that
[e]xcept when relating to the time of doing something, statutory
provisions containing the word “shall” are usually considered to
be mandatory, but it is the intention of the legislature which
governs, and this intent is to be ascertained from a consideration
of the entire act, its nature, its object and the consequences that
would result from construing it one way or the other.
Linde v. Linde Enterprises, Inc., 118 A.3d 422, 435 (Pa. Super. 2015),
appeal denied, ___ A.3d ___, 2015 WL 9646645 (Pa. 2015) (citing Fishkin
v. Hi-Acres, Inc., 341 A.2d 95, 97 (Pa. 1975)). See also Tyler v. King,
496 A.2d 16, 19 (Pa. Super. 1985) (“[I]t has long been the rule in
Pennsylvania that the word ‘shall,’ although usually mandatory or imperative
when used in a statute, may nonetheless be directory or permissive,
depending upon the Legislature’s intent.”).
With this caveat in mind, we look to Pennsylvania Rule of Civil
Procedure 4012 to further ascertain legislative intent. Rule 4012, governing
the trial court’s ability to issue protective orders, states that “[u]pon motion
by a party or by the person from whom discovery or deposition is sought,
and for good cause shown, the court may make any order which justice
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requires to protect a party or person from unreasonable annoyance,
embarrassment, oppression, burden or expense….” Subsection (a)(6) of that
Rule specifically contemplates a court’s discretion to impose an order
directing that “discovery or deposition shall be conducted with no one
present except persons designated by the court.”
Although no case law addresses the application of Rule 4012 to Rule
4010, the explanatory comment to the 1978 amendment to the Rule
stresses that “[t]he amendment provides a comprehensive Rule which
covers all depositions and all discovery.” (emphasis added). As Rule 4010
and Rule 4012 both appear in the same subchapter of the Pennsylvania
Rules of Civil Procedure governing Depositions and Discovery, it appears that
the legislature intended Rule 4012 to empower the trial court with the
discretion to issue protective orders in various discovery procedures,
including, specifically, the power to limit the number of individuals present.
Absent any indication that the legislature sought to curb the court’s power
under Rule 4012 to limit the protections provided under Rule 4010, we
conclude that the trial court’s power to issue protective orders expressly
encompasses the ability to limit the number of individuals present during all
discovery, including during psychological examinations.
Our inquiry does not end here. Rule 4012 does not empower the trial
court to issue protective orders carte blanche. The Rule places on the
moving party the burden of showing “good cause.” Although there has been
scant analysis as to what constitutes “good cause” under Rule 4012, we find
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guidance in this Court’s recent en banc decision in Dougherty v. Heller, 97
A.3d 1257 (Pa. Super. 2014), appeal granted in part, 109 A.3d 675 (Pa.
2015).
In Dougherty, the en banc panel affirmed the lower court’s order
granting a journalist’s motion to compel the deposition of a public figure and
denying protective relief. In that context, the panel expounded that the
“good cause” standard “strikes 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.” Id. at 1266.
Here, in finding that Appellees had established good cause to issue a
protective order, the trial court echoed the concerns raised by Dr. Malatesta.
The court found it significant that the official statements from the National
Academy of Neuropsychology and the American Psychological Association’s
Ethical Principles of Psychologists and Code of Conduct both state that third
party observers should be excluded from the standardized test portion of the
examination to keep it free from distraction. See Trial Court Opinion,
3/17/15 at 11-13. The court also found important the apparent potential of
third party observers to preclude valid interpretation of test results and
afforded great weight to 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.” Id. at 12-13. The
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court took seriously the fear that forcing Dr. Malatesta to conduct the
neuropsychological examination in the presence of counsel would place the
doctor at odds with his ethical duties, which the court was loathe to do. See
id. at 13. Finally, the court noted the National Academy of
Neuropsychology’s position that audio recording jeopardizes the validity of
test performance. See id.
In addition to the serious professional and ethical concerns highlighted
by Dr. Malatesta, the court feared that permitting a third party observer into
the neuropsychological examination room would afford Appellants’ counsel
with an “irrefutable impeachment tool.” Id. The court reasoned that given
the potential that tests conducted with a third party observer would not yield
a valid result, the doctor’s own written statements could potentially be used
for impeachment purposes if the court were to force Dr. Malatesta to
conduct his examination in the presence of a third party. See id.
We find that the trial court’s analysis represents a fair and thoughtful
balance of both the patient’s interest in the presence of counsel during the
neuropsychological examination and the court’s obligation to administer
justice efficiently and prevent abuse of the discovery process. The concerns
presented by Dr. Malatesta and highlighted by the trial court are not abstract
or unsubstantiated. We find that this evidence supports Appellees’ claim that
protection was, in this case, appropriate to safeguard the integrity and
reliability of the neuropsychological examination. Although Appellees counter
that they were not afforded the opportunity to present evidence to refute the
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information offered by Dr. Malatesta, they offer nothing of comparable
substance in rebuttal.
We are satisfied that Appellees have shown good cause that a
protective order was necessary to prohibit the presence of outside observers
during Dr. Malatesta’s neuropsychological examination. The trial court’s
decision to permit Mrs. Shearer’s attorney to be present during the
preliminary interview phase, but not during the standardized testing portion
of the examination, strikes a fair balance between Mrs. Shearer’s interest in
having her counsel present and preserving the integrity and validity of the
neuropsychological examination. Accordingly, we discern no abuse of the
trial court’s discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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