United States District Court, D. North Dakota
ORDER RE MOTION TO COMPEL RULE 35
CHARLES S. MILLER, JR. UNITED STATES MAGISTRATE JUDGE.
action, plaintiff Kevin Ussatis (“plaintiff”) was
the engineer on a train that collided with defendant's
semi-truck at approximately 45 m.p.h. There is some evidence
that plaintiff lost consciousness for a short period of time
following the collision. However, after some delay at the
scene of the accident, plaintiff continued to drive the train
to the end of his run.
subsequently was awarded complete disability, primarily due
to the consequences of a closed-head injury he suffered.
Defendant admits 100% of the fault for the accident rests
with it and the only issue for trial is the amount of
the court is defendant's motion to compel plaintiff to
under go a neuropsychological examination along with a
request to delay the trial to accommodate the examination.
Plaintiff opposes the motion, contending that the conditions
for the examination are not acceptable. Plaintiff also
opposes the request for a continuance.
20, 2019, the court held a telephone conference with the
parties to discuss defendant's motion.
Whether the examination should be required
contends that an examination is unnecessary because his own
doctors have performed two neuropsychological examinations
and the examinations have not shown any abnormalities.
However, given that plaintiff (1) claims he has suffered from
a closed-head injury, (2) clams impairments that may be of a
neuropsychological nature (including memory loss, anxiety,
and depression), and (3) is seeking several million dollars
in damages, the court is loathe to deny defendant the tool
its attorneys believe is necessary to mount a proper defense.
For example, with respect to the claim that plaintiff now has
memory problems (including, for example, forgetting on
occasion where he placed an object), defendant's expert
might come to the conclusion following his examination that
the perceived detriments are consistent with the cognitive
abilities of a person of plaintiff's age and background
and not necessarily the product of head trauma. Further,
given questions raised in the initial neuropsychological
examination and in a later followup evaluation with respect
to the permanency of some of the claimed psychological
impairments, additional testing now may cast some light on
that issue-one way or the other. Finally, even if the
depression and anxiety are the products of circumstances
resulting from the accident (e.g., the resulting
changes in plaintiff's life, including an inability to
work at his chosen trade) and not the product of head trauma,
defendant's examining expert appears qualified to
evaluate that also.
these reasons, the court will require plaintiff to undergo
the examination and his arguments of lack of necessity and
proportionality are rejected.
Whether the court should permit defendant's expert to
conduct a diagnostic interview and, if so, whether that
interview should be recorded
examination that defendant's neuropsychologist wants to
conduct is compromised of three parts: a diagnostic interview
of the plaintiff; cognitive testing; and completion of a
symptoms questionnaire. Plaintiff's counsel argues there
is no need for a diagnostic interview, contending that
defendant's expert can refer to the prior examination
reports and plaintiff's deposition for the information he
needs. In the alternative, plaintiff contends that, if a
diagnostic interview is permitted, it should be recorded,
preferably by video.
respect to the issue of necessity, it appears the diagnostic
interview is important for more than just information
gathering. The manner in which the plaintiff conveys the
information is also important. The report of plaintiff's
own neuropsychologist reflects as much. Further, in this
instance, there may be a need for the defense expert to ask
questions that were not covered by the earlier examinations.
these reasons, the court will not restrict defendant's
expert with respect to what he believes is necessary for him
to make a proper evaluation. The diagnostic interview portion
of the examination may proceed. This leaves the issue of
whether the diagnostic interview needs to be recorded.
opposing the recording, defendant states that its expert has
advised that recording is contrary to accepted practices
within his profession. In further support of that point,
defendant has proffered a 2001 policy statement of the
American Academy of Clinical Neuropsychology entitled
“Policy Statement on the Presence of Third Party
Observers in Neuropsychological Assessments” that was
published in The Clinical Neuropsychologist, Vol.
15, No. 4, pp. 433-39. The American Academy takes the
position in the policy statement that, with some exceptions,
audio and video recording should not be permitted during a
medicolegal patient examinations for several reasons,
including, as particularly relevant here, the potential for
it adversely affecting the results of the examination.
Civ. P. 35 does not address the issue of recording and the
Eighth Circuit appears not to have considered it. The
prevailing view, at least among the district courts of the
Eighth Circuit, appears to be that recording a Rule 35
psychological examination not be ordered-at least absent
special circumstances. Perhaps, the leading case is