BROWN v. BROOKS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CLARENCE J. BROWN, JR., et al. : CIVIL ACTION

:

v. :

:

DASHAWN BROOKS, et al. : NO. 23-2966

MEMORANDUM AND ORDER

ELIZABETH T. HEY, U.S.M.J. August 12, 2024

As a result of the automobile accident that is the basis of this case, Ms. Brown

claims that she suffered a traumatic brain injury and related cognitive impairments. Doc.

14 ¶ 39. Defendants scheduled a neuropsychological evaluation of Ms. Brown by Idit

Trope, Ph.D., for August 20, 2024. Doc. 59-4. Plaintiff’s counsel advised that a

registered nurse would attend the evaluation, and Dr. Trope advised that she would

permit a third-party to be present during the intake portion of the evaluation, but not

during the neuropsychological testing portion due to “her concerns related to distraction,

ethical obligations and protecting test validity.” Doc. 65 ¶ 8. Ms. Brown has filed a

motion for a protective order requesting that the court permit a registered nurse to attend

the independent medical examination, relying on Pennsylvania Rule of Civil Procedure

4010. Doc. 59-2 at 3. Defendant responds that such protective orders are disfavored in

Pennsylvania and good cause exists to prohibit the presence of a third party during the

neuropsychological testing. Doc. 65 at 7-10.

Pennsylvania Rule of Civil Procedure 4010 allows the person to be examined to

“have the right to have counsel or other representative present during the examination.”

Pa. R. Civ. P. 4010(a)(4)(i). However, Pennsylvania’s civil rules also provide that “for

good cause shown” the court “may make any order which justice requires . . . that

discovery or deposition shall be conducted with no one present except persons designated

by the court.” Id. R. 4012(a)(6).

In support of their argument that no third-party should be present during the

neuropsychological testing, Defendants rely on the “Official Statement of the National

Academy of Neuropsychology” on the presence of third-party observers during

neuropsychological testing, Doc. 66-1, which states that the presence of such observers is

inconsistent with the technical manuals governing the administration of specific

psychological tests and may influence the reliability of the data. Id. at 2. Plaintiff states

that “[t]he sole purpose of the presence [of the third-party] will be for the comfortability

of this severely injured person as well as to act as an observer.” Doc. 59 ¶ 15.

In balancing similar interests in the realm of neuropsychological testing,

Pennsylvania courts have adopted the middle ground suggested by Dr. Trope, allowing a

third party to attend the interview portion, but not the testing portion of the evaluation.

See Shearer v. Hafer, 135 A.3d 637, at 644-45 (Pa. Super. 2016) (affirming trial court’s

decision allowing attorney to be present during preliminary interview phase, but not

during the standardized testing), appeal quashed, 177 A.2d 850 (Pa. 2018)1; Marion v.

Lukaitis, 32 Pa. D. & C. 5th 287, 2013 WL 10545387, at *5 (Lack. C.C.P. Aug. 15,

2013) (allowing representative to be present during review of records, history, and other

1The Pennsylvania Supreme Court found that the order granting the protective

order was not an immediately appealable collateral order.

background information, but precluding such presence once standardized testing begins).

The federal courts of our circuit have also recognized the need to exclude third parties

from psychiatric and psychological evaluations.

[T]he need for effective . . . examinations militates against

allowing an observer who could potentially distract the

examining [expert] and examine[e] thereby compromising the

results of the examination. Moreover, the presence of the

observer interjects an adversarial, partisan atmosphere into

what should be otherwise a wholly objective inquiry. . . .

Additionally, it is recognized that . . . examinations

necessitate an unimpeded, one-on-one exchange between the

doctor and the patient. . . . The Court finds that the presence

of an observer would lend a degree of artificiality to the

examination that would be inconsistent with the applicable

professional standard.

Smolko v. Unimark Lowboy Trans., LLC, 327 F.R.D. 59, 61-62 (M.D. Pa. 2018)

(quoting Shirsat v. Mut. Pharm. Co., 169 F.R.D. 68, 71 (E.D. Pa. 1996)).

Plaintiff relies on Gensbauer v. May Department Stores Company, in which the

federal court granted a protective order allowing the plaintiff to have his counsel present

during an independent medical evaluation. 184 F.R.D. 552, 553 (E.D. Pa. 1999).

Gensbauer is inapposite because it involved a physical examination. In Gensbauer, the

court acknowledged the line of cases cited above that precluded a third-party observer

from neuropsychological testing and stated, “[t]hese cases, however, involved

psychological rather than physical examinations, which may depend more on ‘unimpeded

one-on-one communication between doctor and patient.’” Id. (quoting Neumerski v.

Califano, 513 F. Supp. 1011, 1017 (E.D. Pa. 1981)).

I conclude that allowing a third-party to accompany Ms. Smith to the evaluation

and to be present during the interview portion of the examination, but to prohibit the

third-party’s presence during the standardized testing portion of the evaluation, properly

addresses the competing interests.

An appropriate Order follows.