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Paul S. Bovarnick, Rose, Senders & Bovarnick, LLC, 1205 NW 25th Ave., Portland, OR 97210; T: 503-227-2486; PBovarnick@rsblaw.net.
By Paul S. Bovarnik, Portland, OR
In one of my recent cases, the railroad sought both a neuropsychological court-ordered medical exam and a neurological medical exam. Below is an excerpted version of my response to the railroad’s motion to compel both exams.
The plaintiff is a 60 year old who worked for the defendants as a switchman/brakeman from 1970 until he was injured on June 19, 2010. On the day he was injured, the plaintiff was standing on a ladder on the side of a moving freight car when the ladder failed. He fell from the ladder, struck his head, and was knocked unconscious. He suffered a closed head injury, post-concussion syndrome, and a contusion to his spinal cord, as well as cognitive impairments. The plaintiff now suffers from persistent spine pain, headaches, and cognitive impairments. The plaintiff’s doctors have concluded that his injuries make it impossible for him to return to work as a brakeman/conductor.
The defendants and the third party defendants have now moved to compel the plaintiff to submit to an eight-hour exam by Dr. W. (PhD) (neuropsychological exam), and a two hour exam by Dr. M. (MD) (neurological exam). The plaintiff has no objection to appropriate examinations conducted by witnesses hired for that purpose. However, the plaintiff believes that the examinations proposed by the defendants are unreasonably burdensome for the plaintiff, and include tests unlikely to lead to the discovery of admissible evidence.
Oregon Rules of Civil Procedure 44A provides:
Order for Examination. When the mental or physical condition or the blood relationship of a party…is in controversy, the court may order the party to submit to a physical or mental examination by a physician or a mental examination by a psychologist…. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
In addition, Oregon Rules of Civil Procedure 36C states that “the court…may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
Rules 44 and 36 should be read in conjunction with each other. Thus, the “time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made,” language from Rule 44A should “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
Defendants Should Not Be Permitted to Re-Depose Plaintiff through Its Experts
On November 1, 2011, the defendants commenced an exhaustive seven and one-half hour deposition of the plaintiff that they finished on November 2. The deposition transcript fills 292 pages. The three defense lawyers elicited testimony from plaintiff concerning the events surrounding the injury, his current medical condition, his past medical condition, his past and present avocations, his education, and every other conceivable facet of his life.
The defendants should not be permitted to require the plaintiff to fill out questionnaires or forms which rehash matters already covered extensively by the defendants in their earlier seven and one-half hour deposition.
Defendants Should Be Required to Provide a Precise Description of the Tests Their Doctors Intend to Perform and Should Not Be Permitted to Administer Burdensome and Inadmissible Tests
Rule 44A mandates that the court “shall specify the time, place, manner, conditions, and scope of the examination.” The plaintiff should only be required to submit to such testing as is likely to lead to the discovery of admissible evidence. Dr. M. should not be permitted to test for diabetes, for example, because there is no evidence that the plaintiff ever suffered from diabetes. Likewise, Dr. W. should not be permitted to administer the Minnesota Multiphasic Personality Inventory (MMPI), a lengthy test that is not likely to produce admissible evidence.
Virtually all of these MMPI scales relate to the personality and credibility of the test subject. The MMPI purports to both test the plaintiff’s credibility and identify characteristics of the plaintiff such as “lie” and “symptom validity,” “superlative self-presentation,” and “Amorality,” to name a few of the test features. This test will produce nothing more than commentary on the character and credibility of the plaintiff. Such evidence is inadmissible.1
The plaintiff’s psychologist did not use this test, and given both the length and inconvenience of the test as well as the substantial likelihood that the results of the test will be inadmissible, the test should not be permitted. Furthermore, the defendants’ proposed use of this particular test, which is of dubious utility and admissibility in the present case, only serves to highlight the need for the defendants to tell the plaintiff and the court what tests its witnesses intend to use.
Plaintiff Should Be Permitted to Have an Observer Present and Record the Examinations
This issue was recently addressed by the Oregon Supreme Court, which ordered a trial court to allow that legal counsel be present at an Oregon Rules of Civil Procedure 44 examination.2
The affidavit of Dr. W. also claims that “third-party observation of these examinations…causes a significantly greater risk of dissemination of testing materials.” This is a bizarre assertion. For one thing, the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (2010) contemplates the recording of tests:
4.03 Recording: Before recording the voices or images of individuals to whom they provide services, psychologists obtain permission from all such persons or their legal representatives.
Defendants’ Witnesses Should Be Required to Turn over the Raw Data from Their Tests
The defendants argue that the data obtained by Dr. W. should be protected from disclosure to the plaintiff’s attorneys. In her affidavit, Dr. W. asserts that “[f]ailure to protect these materials can result in great difficulty for other licensed psychologists and can put the integrity and effectiveness of these materials at risk.” Based on this unsubstantiated declaration, the defendants seek to have the court abdicate its duty to conduct a fair trial.
The Rules do not make protecting the business interests of voluntary, non-party professional witnesses a concern of the court. The plaintiff, however, is a party, and he cannot effectively cross-examine the defense witnesses without the data that underlies the witnesses’ conclusions.
The plaintiff requests that this court permit the examinations of the plaintiff by the defendants’ witnesses under the following conditions:
(1) Dr. W. should not be permitted to administer an MMPI test, and her examination should last no more than four hours, including one break.
(2) The witnesses should not be permitted to interrogate the plaintiff about anything that occurred prior to his deposition, on November 1 and 2, 2011, nor about any other matters pursued by defense lawyers during the deposition. The witnesses may be permitted to question plaintiff about his current physical, mental and emotional status.
(3) The witnesses shall promptly disclose to the plaintiff’s counsel the tests they propose to administer so that the plaintiff can promptly make an objection, if need be.
(4) The plaintiff should be permitted to use a silent observer to record the examinations. (5) The defendants’ witnesses should be required to promptly provide the plaintiff’s attorneys with the results of their testing, along with any written test instruments they may use.
Defense psychologists often use these psychological MMPI scale tests as nothing more than a vehicle to attack the credibility of the plaintiff. You must vigorously oppose the exams or obtain conditions. Please see a proposed order I have offered in relation to issues in this article.
To view footnotes for this article, click here.