Keeping the “I” In IME: Pa. Supreme Court Refuses To Overturn Order Barring Plaintiff’s Lawyer From Portions of Neuropsych IME

Witness_stand_in_a_courtroom

HARRISBURG, Jan. 18 –  Defendants in Pennsylvania civil personal injury litigation may have gotten a bit more incentive to try to keep independent medical exams free of interference by Plaintiffs’ lawyers.  This week, the Pa. Supreme Court quashed an interlocutory appeal from a trial court order barring the plaintiff’s counsel from attending parts of his client’s neuropsychological IME or recording the exam.

In Shearer v. Hafer, 2018 Pa. Lexis 353, the Pa. Supreme Court granted allowance of appeal  to consider whether a plaintiff in a civil personal injury action has the right to have counsel present and to record a neuropsychological examination of that plaintiff by a defendant’s neuropsychologist.  At the trial court level in Shearer, a Lebanon County judge issued a protective order ruling that the personal injury Plaintiff’s counsel could be present during the preliminary interview phase of the exam, but that no individual would be permitted in the evaluation room with Mrs. Shearer and the doctor during the standardized testing portion of the evaluation.  The order also provided that  the evaluation could not  be recorded.

On appeal to the Pa. Superior Court, the court affirmed the trial court ruling after finding that the order in question was collateral and properly appealable.   The Plaintiff then sought an allowance of appeal from the state Supreme Court.

In a 6-1 ruling,  the Pa. Supreme Court vacated the Superior Court ruling, and quashed the appeal, finding that an appeal from  the order in question was an unauthorized interlocutory appeal.  In writing for the majority, Justice Sandra McCloskey Todd analyzed the order under a three-part test for the appealability of interlocutory orders.

While finding that the order was separable from the main cause of action of the automobile accident case, thus satisfying the first prong of the analysis, Justice Todd found that the second and third elements of the analysis were not met.  As to the second element, the Court found that the interests in question would not go unprotected without immediate appellate review.  As to the third prong, The Court also found that the right asserted, i.e., to counsel at the entire IME,  would not be irretrievably lost, as the Plaintiff could obtain a new trial following an appeal at the end of the case.

The Court went to some length to discuss that the right of counsel at an IME was not a constitutional one, but rather one granted in the Pa. Rules of Civil Procedure,  Pa.R.C.P. 4010.  Those rules also provide that trial courts can craft protective orders in discovery to balance and accommodate the interests of competing litigants, via Pa.R.C.P. 4012.

While the Supreme Court did not address the merits of the protective order itself, the ruling suggests that if a protective order limiting the participation of the Plaintiff’s lawyer at an IME can be secured from the trial court,  the benefits of such an order are not likely to be disturbed by interlocutory appeal.

 

Advertisements

Author: CJ Haddick

C.J. Haddick is a Director with the law firm of Dickie, McCamey, & Chilcote, PC, based in Pittsburgh, Pa. He has advised and represented insurers in insurance coverage and bad faith litigation for more than a quarter of a century, and written and spoken throughout the United States on insurance coverage and bad faith prevention and litigation. He is Managing Director of the firm's Harrisburg, Pa. office. Reach him at chaddick@dmclaw.com or 717-731-4800.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s