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Pennsylvania Court Rules No Right to Counsel During Neuropsychological Testing

May 31, 2016

The Pennsylvania Superior Court recently upheld a trial court’s decision to issue a protective order that bars Plaintiffs’ attorneys from attending the standardized testing portion of a neuropsychological independent medical examination.  The Court ultimately ruled that, despite the seemingly mandatory requirement that plaintiffs have a right to counsel during independent medical examinations, the Pennsylvania Legislature expressly granted trial courts the power to limit the number of individuals present during such testing. 
In Shearer v. Hafer, 2016 PA Super. 61, a case not handled by Zarwin attorneys, plaintiff alleged that she sustained cognitive injuries as a result of a motor vehicle accident.  In defense of Plaintiff’s allegations, the defense counsel arranged for an independent neuropsychological evaluation, but objected to plaintiff’s counsel’s request to observe and record the examination.  The trial court sided with Defense Counsel and barred plaintiff’s attorney from being present during the standardized testing of the examination.  
On Appeal, the Pennsylvania Superior Court noted that the Pennsylvania Rules of Civil Procedure generally grant plaintiffs the right to have counsel present during a medical examination requested for the purposes of litigation.
However, the Court also noted that the Pennsylvania Rule of Civil Procedure permits a trial court the discretion to issue a protective order to protect a party from discovery that is an unreasonable annoyance, an embarrassment, oppressive or an unreasonable burden or expense.  
In reconciling the contradictory nature of the Rules, the Superior Court noted that the amendment granting the right to a protective order is a comprehensive rule and pertains to all aspects of discovery.  Thus, the trial court could prevent plaintiff’s attorney from being present during the standardized testing portion of a neuropsychological examination so long as “good cause” is shown.    
Upon consideration of the ethical and practical implications of attorneys’ presence during neuropsychological examinations and the impact such observations may have on the integrity and reliability of such testing, the Superior Court agreed with the trial court and upheld the decision to preclude plaintiff’s attorney from being present during such testing.  

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