J-A34007-15


                             2016 PA Super 61

DIANA SHEARER AND JEFF SHEARER                 IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellants

                   v.

SCOTT HAFER AND PAULETTE FORD

                        Appellees                    No. 665 MDA 2015


                    Appeal from the Order March 17, 2015
              In the Court of Common Pleas of Lebanon County
                     Civil Division at No(s): 2012-01286


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

OPINION BY PANELLA, J.                             FILED MARCH 09, 2016

      Appellants, Diana Shearer and Jeff Shearer, appeal from the order

entered on March 17, 2015, in the Court of Common Pleas of Lebanon

County, granting Appellees, Scott Hafer’s and Paulette Ford’s motion for a

protective order. On appeal, Appellants argue that a litigant has an absolute

right to the presence of counsel during an independent neuropsychological

evaluation pursuant to Pennsylvania Rule of Civil Procedure 4010. Appellees

counter that the presence of third party observers jeopardizes the validity

and reliability of the examination and that Pennsylvania Rule of Civil

Procedure 4012 provides the court with the discretion to issue “any

[protective] order which justice requires.” For the following reasons, we find

that the trial court was well within its discretion in entering a protective
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order    prohibiting   the   presence   of   third   party   observers   during   the

standardized test portion of the neuropsychological evaluation.

        We take the underlying facts in this matter from the trial court’s March

17, 2015 opinion.

               This case stems from a motor vehicle accident that
        occurred on July 15, 2010. On that date, Scott Hafer was
        operating a vehicle owned by his mother, Paulette Ford.
        According to the Complaint filed by [the Appellants,] Mr. Hafer
        pulled his vehicle into the path of a vehicle operated by Dana
        Shearer, thereby causing an accident. As a result of this
        accident, the [Appellants] seek monetary compensation for
        injur[ies] they suffered.

              One of [the Appellants’] claims involves alleged cognitive
        harm that was triggered by the accident. According to
        documentation presented [to the trial court,] M[r]s. Shearer was
        evaluated by Dr. Paul Eslinger, a neuropsychologist with the
        Hershey Medical Center. The neuropsychological examination
        conducted by Dr. Eslinger employed standardized testing
        procedures and was conducted without the presence of
        [Appellants’] counsel and any other third party. Dr. Eslinger has
        been listed by [Appellants] as a trial witness.

              Because of the above, the [Appellees] hired Dr. Victor
        Malatesta to conduct an independent neuropsychological
        examination. Notice of Dr. Malatesta’s [proposed examination]
        was provided to [Appellants’] counsel. [Appellants’] counsel did
        not conceptually oppose the [Appellees’] request for an
        independent    neuropsychological     examination.     However,
        [Appellants’] counsel demanded to be present during all
        components of Dr. Malatesta’s neuropsychological examination.

               When the precondition established by [Appellants’] counsel
        was communicated to Dr. Malatesta, the doctor objected. Via a
        letter dated May 6, 2014, Dr. Malatesta advised a representative
        of the Appellees:

              [T]he attorney’s request to audiotape the testing
           evaluation poses significant challenges. I am bound by the
           ethical principles of psychologists and code of conduct by
           the American Psychological Association (APA) and the

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        National Academy of Neuropsychology (NAN) to both
        protect the integrity of the examination and the security of
        the test materials. In this regard, the attached official
        statement of the National Academy of Neuropsychology is
        fairly clear regarding the presence of a third party observer
        (including audiotaping) during the administration of formal
        test[ing] procedures. Audiotaping during testing may
        represent a threat to the validity and reliability of the test
        data, and may compromise the valid use of normative
        standards. Thus, besides introducing a bias and potential
        distortion of the data, it is also inconsistent with the
        requirements for standardized test administration as set
        forth in the APA’s ethical principles.

     Dr. Malatesta ended his letter by indicating that he would permit
     [Appellants’] attorney to be present during the interview portion
     of his examination. However, Dr. Malatesta would not permit
     either the presence of [Appellants’] counsel or audiotaping
     during the standardized test phase of his evaluation.

           Dr. Malatesta’s proposed compromise was not acceptable
     to [Appellants’] counsel. [Appellants’] counsel reiterated his
     demand to be present at all phases of the independent
     neuropsychological examination. This would include the phase
     that involved standardized neurological testing. Unfortunately,
     the positions of [Appellants’] counsel and Dr. Malatesta created
     an impasse that required intervention by the [trial court].

            [The trial court] met both counsel at a status conference
     on February 10, 2015. As a result of that status conference, [the
     court] solicited legal briefs from both parties. [The court] also
     asked the [Appellees’] attorney to procure additional information
     from Dr. Malatesta. That information was communicated by way
     of a letter dated February 18, 2015. In that letter, Dr. Malatesta
     outlined with more specificity the phase of his testing for which
     he required privacy. In addition, he expanded upon the ethical
     constraints that govern his neuropsychological testing.

        The ethical rules governing exams by neuropsychological
        experts upon which I am relying on preclude a third party
        from being present during parts of the testing are drawn
        from at least two sources.

        First, the Official Statement of the National Academy of
        Neuropsychology (NAN) regarding Presence of Third Party
        Observers During Neuropsychological Testing, which was

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       also published in the Archives of Clinical Neuropsychology
       (2000, 15, 379-380), indicates that the presence of a third
       party in the testing room represents a potential distraction,
       and that standardized test manuals … “have specifically
       stated that third party observers should be excluded from
       the examination room to keep free from distraction.”
       (NAN, 2000, p. 379). It also states that “the presence of a
       third party observer in the testing room is also inconsistent
       with the requirements for standardized test administration
       as set forth in the APA’s Ethical Principles of Psychologists
       and Code of Conduct” (NAN, 2000, p. 379), because it
       creates the potential for distraction and/or interruption.
       The specific rule of the APA’s Ethical Principles and Code is
       stated under use of Assessments 9.02 (APA, 2002).

       Second, the Official Statement of the National Academy of
       Neuropsychology (NAN) regarding Test Security: An
       Update which was approved by the NAN Board of Directors
       on 10/13/03, and was first published in the Archives of
       Clinical Neuropsychology (2000, 15, 383-386) also
       indicates that:

          A major practice activity of neuropsychologists is the
          evaluation of behavior with neuropsychological test
          procedures. Many tests, for example, those of
          memory or ability to solve novel problems, depend
          to varying degrees on a lack of familiarity with the
          test items. Hence, there is a need to maintain test
          security to protect the uniqueness of these
          instruments. This is recognized in the 1992 and 2002
          Ethical Principles of Psychologists and Code of
          Conduct (APA, 1992; Code 2.1, and APA, 2002; Code
          9.11, Maintaining Test Security) … In the course of
          the practice of psychological and neuropsychological
          assessment,     neuropsychologists     may    receive
          requests from attorneys for copies of test protocols,
          and/or requests to audio or videotape testing
          sessions. Copying test protocols, video and/or audio
          taping a psychological or          neuropsychological
          evaluation for release to a non-psychologist
          potentially violates the Ethical Principles of
          Psychologists and Code of Conduct (APA, 1992; APA,
          2002), by placing confidential test procedures in the
          public domain 2.10, and by making tests available to


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            persons unqualified to interpret them (APA, 1992;
            Codes 2.02, 2.06 and 2[.]10; APA, 2002; Codes 9.04
            and 9.11).

Trial Court Opinion, 3/17/15 at 2-5.

      After reviewing the briefs of the parties, along with the information

provided by Dr. Malatesta, the trial court entered an order granting

Appellees’ request for a protective order. The order stipulated that although

Appellants’ counsel “may be present during the preliminary interview phase

of the neuropsychological examination,” “no individual shall be permitted in

the evaluation room with Diana Shearer and Dr. Malatesta” during the phase

of the evaluation that involves standardized testing. Order, 3/17/15. The

order further provided that “no recording device shall be permitted in the

evaluation room.” Id. Finally, the trial court required that the results of the

examination be provided to plaintiff’s counsel.

      Appellants filed a timely notice of appeal of the court’s March 17 order,

in addition to a motion for reconsideration of that order. The trial court later

denied their motion for reconsideration. Appellants additionally filed an

application to amend the protective order to include certification of the

matter as an interlocutory appeal with permission pursuant to Pa.R.A.P.

1311(b), which the trial court also denied.

      By order of May 12, 2015, this Court directed Appellants to show

cause as to why this appeal should not be quashed as interlocutory.

Appellants filed a response. This Court then discharged the May 12 show

cause order and referred the issue of appealability to the merits panel.


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     Prior to reaching the merits of Appellants’ argument, we must

determine whether we have jurisdiction to entertain Appellants’ appeal. An

appeal lies only from a final order unless otherwise permitted by rule or

statute. See Pa.R.A.P. 341(b).

     Generally, discovery orders are deemed interlocutory and not
     immediately appealable because they do not dispose of the
     litigation. A non-final order may be reviewed if it is separable
     from and collateral to the main cause of action, the right
     involved [is] too important to be denied review and the question
     presented is such that if review is postponed until final judgment
     in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b).
     All three factors set forth in Rule 313 must be satisfied. The
     Pennsylvania Supreme Court has stated that Rule 313 must be
     construed narrowly: Claims must be analyzed not with respect to
     the specific facts of the case, but in the context of the broad
     public policy interests that they implicate. Only those claims that
     involve interests deeply rooted in public policy can be considered
     too important to be denied review.

Leber v. Stretton, 928 A.2d 262, 265 (Pa. Super. 2007) (some citations

and all internal quotation marks omitted).

     Here, we find that the order granting Appellees’ request for a

protective order to prohibit the presence of third parties during Mrs.

Shearer’s neuropsychological examination is clearly separable from and

collateral to the main cause of action, which is a personal injury action.

Second, we find that any matter implicating and potentially infringing upon a

litigant’s right to counsel is undeniably too important to be denied review.

Thirdly, we are convinced that the question presented is such that if review

is postponed until final judgment, the claim made concerning the Appellant’s

right to have counsel present during a neuropsychological examination


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would be irreparably lost. See, e.g., Commonwealth v. Shearer, 882 A.2d

462, 469 (Pa. 2005) (finding postponement in reviewing order compelling

minor complainant to submit to a psychological exam would render

underlying claim irreparably lost, given that there is no way to “turn back

the clock” should it later be determined that the complainant should be free

from such an examination). Accordingly, we find that Appellants have

properly appealed from a collateral order pursuant to Pa.R.A.P. 313, and we

proceed to address the merits of Appellants’ claim on appeal.

      Appellants frame the issue raised on appeal as follows.

      Whether the trial court erred in granting [Appellees’] motion for
      a protective order where Mrs. Shearer has the right to have her
      counsel present and to audio record all portions of the
      neuropsychological examination pursuant to the clear language
      of Pa.R.C.P. 4010, and in the alternative, [Appellees] have not
      shown good cause to justify the trial court stripping Mrs. Shearer
      of her statutorily protected rights.

Appellant’s Brief at 4.

      This Court has previously recognized that the issuance of a protective

order lies within the discretion of the trial court.

      There are no hard-and-fast rules as to how a motion for a
      protective order is to be determined by the court. Whether to
      grant or deny the motion, and what kind or kinds of protective
      orders to issue are matters that lie within the sound judicial
      discretion of the court, and the court’s determination as to these
      matters will not be disturbed unless that discretion has been
      abused.

Hutchinson v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992) (citation

omitted). To the extent that Appellants’ question necessitates our analysis



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and interpretation of the Pennsylvania Rules of Civil Procedure, our standard

of review is de novo. See Sigall v. Serrano, 17 A.3d 946, 949 (Pa. Super.

2011).

       Pennsylvania Rule of Civil Procedure 4010, entitled Physical and Mental

Examination of Persons, provides in relevant part as follows.

       The person to be examined shall have the right to have counsel
       or other representative present during the examination. The
       examiner’s oral interrogation of the person to be examined shall
       be limited to matters specifically relevant to the scope of the
       examination.

Pa.R.C.P. 4010(a)(4)(i). Subdivision (a)(5)(i) further provides that “[t]he

party who is being examined or who is producing for examination a person

in the party’s custody or legal control may have made upon reasonable

notice and at the party’s expense a stenographic or audio recording of the

examination.”

       Initially, we note that there is no Pennsylvania Appellate Court decision

that directly addresses a litigant’s right to counsel during a psychological

examination.1 Appellants rely, in part, upon the plain language of Pa.R.C.P.

4010 to support their position that the right to have counsel present during

____________________________________________


1
  In State Farm Mutual Automobile Insurance Co. v. Morris, 432 A.2d
1089, 1092 (Pa. Super. 1981), a panel of this Court posited, in dictum, that
the decision to allow the presence of counsel during a psychological
examination was within the discretion of the trial court. Morris, however,
predates the 1998 amendment of Pa.R.C.P. 4010 to include the right to have
counsel present during the examination. Accordingly, it has no bearing upon
our analysis in this case.



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the examination is absolute. They assert that the legislature’s designation of

the imperative “shall” indicates a clear intent that the right to counsel during

a psychological or medical examination is mandatory.

       While   superficially   appealing,   there   is   an   important   caveat   to

Appellants’ bright-line interpretation. When interpreting the legislature’s use

of the word “shall” in a different context, this Court has previously stressed

that

       [e]xcept when relating to the time of doing something, statutory
       provisions containing the word “shall” are usually considered to
       be mandatory, but it is the intention of the legislature which
       governs, and this intent is to be ascertained from a consideration
       of the entire act, its nature, its object and the consequences that
       would result from construing it one way or the other.

Linde v. Linde Enterprises, Inc., 118 A.3d 422, 435 (Pa. Super. 2015),

appeal denied, ___ A.3d ___, 2015 WL 9646645 (Pa. 2015) (citing Fishkin

v. Hi-Acres, Inc., 341 A.2d 95, 97 (Pa. 1975)). See also Tyler v. King,

496 A.2d 16, 19 (Pa. Super. 1985) (“[I]t has long been the rule in

Pennsylvania that the word ‘shall,’ although usually mandatory or imperative

when used in a statute, may nonetheless be directory or permissive,

depending upon the Legislature’s intent.”).

       With this caveat in mind, we look to Pennsylvania Rule of Civil

Procedure 4012 to further ascertain legislative intent. Rule 4012, governing

the trial court’s ability to issue protective orders, states that “[u]pon motion

by a party or by the person from whom discovery or deposition is sought,

and for good cause shown, the court may make any order which justice


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requires to protect a party or person from unreasonable annoyance,

embarrassment, oppression, burden or expense….” Subsection (a)(6) of that

Rule specifically contemplates a court’s discretion to impose an order

directing that “discovery or deposition shall be conducted with no one

present except persons designated by the court.”

      Although no case law addresses the application of Rule 4012 to Rule

4010, the explanatory comment to the 1978 amendment to the Rule

stresses that “[t]he amendment provides a comprehensive Rule which

covers all depositions and all discovery.” (emphasis added). As Rule 4010

and Rule 4012 both appear in the same subchapter of the Pennsylvania

Rules of Civil Procedure governing Depositions and Discovery, it appears that

the legislature intended Rule 4012 to empower the trial court with the

discretion to issue protective orders in various discovery procedures,

including, specifically, the power to limit the number of individuals present.

Absent any indication that the legislature sought to curb the court’s power

under Rule 4012 to limit the protections provided under Rule 4010, we

conclude that the trial court’s power to issue protective orders expressly

encompasses the ability to limit the number of individuals present during all

discovery, including during psychological examinations.

      Our inquiry does not end here. Rule 4012 does not empower the trial

court to issue protective orders carte blanche. The Rule places on the

moving party the burden of showing “good cause.” Although there has been

scant analysis as to what constitutes “good cause” under Rule 4012, we find

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guidance in this Court’s recent en banc decision in Dougherty v. Heller, 97

A.3d 1257 (Pa. Super. 2014), appeal granted in part, 109 A.3d 675 (Pa.

2015).

      In Dougherty, the en banc panel affirmed the lower court’s order

granting a journalist’s motion to compel the deposition of a public figure and

denying protective relief. In that context, the panel expounded that the

“good cause” standard “strikes an appropriate balance between competing

interests, including a litigant’s privacy interests (however they may be

defined) … and the court's obligations to administer justice efficiently and

prevent abuse of the discovery process.” Id. at 1266.

      Here, in finding that Appellees had established good cause to issue a

protective order, the trial court echoed the concerns raised by Dr. Malatesta.

The court found it significant that the official statements from the National

Academy of Neuropsychology and the American Psychological Association’s

Ethical Principles of Psychologists and Code of Conduct both state that third

party observers should be excluded from the standardized test portion of the

examination to keep it free from distraction. See Trial Court Opinion,

3/17/15 at 11-13. The court also found important the apparent potential of

third party observers to preclude valid interpretation of test results and

afforded great weight to the official position of the National Academy of

Neuropsychology “that neuropsychologists should strive to minimize all

influences that may compromise accuracy of assessment and should make

every effort to exclude observers from the evaluation.” Id. at 12-13. The

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court took seriously the fear that forcing Dr. Malatesta to conduct the

neuropsychological examination in the presence of counsel would place the

doctor at odds with his ethical duties, which the court was loathe to do. See

id.   at   13.   Finally,   the   court   noted   the   National   Academy   of

Neuropsychology’s position that audio recording jeopardizes the validity of

test performance. See id.

      In addition to the serious professional and ethical concerns highlighted

by Dr. Malatesta, the court feared that permitting a third party observer into

the neuropsychological examination room would afford Appellants’ counsel

with an “irrefutable impeachment tool.” Id. The court reasoned that given

the potential that tests conducted with a third party observer would not yield

a valid result, the doctor’s own written statements could potentially be used

for impeachment purposes if the court were to force Dr. Malatesta to

conduct his examination in the presence of a third party. See id.

      We find that the trial court’s analysis represents a fair and thoughtful

balance of both the patient’s interest in the presence of counsel during the

neuropsychological examination and the court’s obligation to administer

justice efficiently and prevent abuse of the discovery process. The concerns

presented by Dr. Malatesta and highlighted by the trial court are not abstract

or unsubstantiated. We find that this evidence supports Appellees’ claim that

protection was, in this case, appropriate to safeguard the integrity and

reliability of the neuropsychological examination. Although Appellees counter

that they were not afforded the opportunity to present evidence to refute the

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information offered by Dr. Malatesta, they offer nothing of comparable

substance in rebuttal.

      We are satisfied that Appellees have shown good cause that a

protective order was necessary to prohibit the presence of outside observers

during Dr. Malatesta’s neuropsychological examination. The trial court’s

decision to permit Mrs. Shearer’s attorney to be present during the

preliminary interview phase, but not during the standardized testing portion

of the examination, strikes a fair balance between Mrs. Shearer’s interest in

having her counsel present and preserving the integrity and validity of the

neuropsychological examination. Accordingly, we discern no abuse of the

trial court’s discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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