HARRISBURG – The state Supreme Court won’t review whether a plaintiff in a civil lawsuit has the right to have counsel present and to record a neuropsychological examination by a defendant’s doctor, remanding the case back to Lebanon County Common Pleas Court.

The panel hearing the case included Chief Justice Thomas G. Saylor as well as justices Max Baer, Debra McCloskey Todd, Christine Donohue, Kevin M. Dougherty, David N. Wecht and Sallie Updyke Mundy. Todd wrote the majority opinion Jan. 18.

In the case, plaintiff Diana Shearer had leveled an objection to a cognitive evaluation she alleges she had to participate in without her lawyer being present. 

The majority found the issue to be an unauthorized interlocutory appeal.

On July 15, 2012, appellee Scott Hafer was driving a car owned by his mother, Paulette Ford. Appellant Diana Shearer alleged that Hafer drove his vehicle into the path of a vehicle she was driving, resulting in an accident. Shearer and her husband, Jeff, who was a passenger in the car, filed a personal injury complaint against Hafer and Ford in Lebanon County Common Pleas Court.

The Shearers’ claim included damages for cognitive harm Diana Shearer allegedly sustained in the accident. After suffering a closed head injury, she alleged she began to have headaches, cognitive impairment and memory issues.

The Shearers hired neuropsychologist Dr. Paul Eslinger, who was associated with the Hershey Medical Center, to perform a cognitive evaluation, the opinion states. However, the evaluation, which employed standardized testing procedures, was conducted without appellants’ counsel or any other third party present.

In the wake of the evaluation, Hafer and Ford hired Dr. Victor Malatesta, also a neuropsychologist, to perform an independent neuropsychological evaluation as part of their defense, according to the opinion.

While the Shearers didn’t object to the request for an independent neuropsychological examination, they asked that the evaluation be audiotaped and that their lawyer or another representative be present during the examination.

The opinion states Malatesta objected to the conditions on ethical grounds, maintaining that it could introduce bias into the process. He ultimately agreed to a compromise, permitting the Shearers’ lawyer "to be present during the interview portion of the examination, but would not permit the presence of counsel or audiotaping during the standardized testing phase of his examination," the suit states.

The Shearers objected to the compromise and requested the trial court’s intervention in the issue. The trial court issued an order that stated the Shearers’ lawyer could be present for the initial interview, but nobody would be permitted in the evaluation room during the standardized test, nor could it be taped in any way.

According to court documents, the trial court reached this determination after considering Pennsylvania Rule of Civil Procedure 4010, which “governs defense requested physical and mental examinations, and provides that the person to be examined shall have the right to have counsel or other representative present during an examination.”

The trial court further considered Pennsylvania Rule of Civil Procedure 4012, which “allows for protective orders, for good cause shown, to protect a party or person from whom discovery is sought from unreasonable conduct,” the opinion states.

On appeal by the Shearers,’ the Superior Court affirmed the trial court’s order and they asked the Supreme Court to hear the case, arguing the trial court’s order is reviewable as a collateral order under Pa.R.A.P. 313.

In the majority opinion, Todd noted that the right to have an attorney and layperson present “is largely limited, individualized and fact-based.”

Moreover, Todd noted that the Shearers wouldn’t lose any rights if the court didn’t permit an interlocutory appeal in the case.

“Accordingly, we find that appellants have not met the third prong of the collateral order test,” she wrote.

Wecht wrote a concurring opinion, noting that he had concerns about some aspects of the case.

Wecht wrote that there is a risk of relying on "standards written by non-governmental organizations" that could "run afoul of the non-delegation doctrine."

“While we have neither the record nor the advocacy in this case to resolve the delegation issue or even reach its merits, boards and agencies should be cognizant of the issue and should attend diligently to its implications,” he wrote.

Mundy wrote a dissenting opinion, maintaining that the issues raised by the Shearers were worth review and there was a chance Diana Shearer’s rights could be negatively impacted if the case wasn’t reviewed.

“Like the Superior Court, I deem the right to counsel … to be 'undeniably too important to be denied review,'” Mundy wrote. 

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