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Ussatis v. Bail

United States District Court, D. North Dakota

May 24, 2019

Kevin Ussatis and Julie Ussatis, Plaintiffs,
v.
Marilyn Theresa Bail, d/b/a M.R. Enterprises, LLC, Defendant.

          ORDER RE MOTION TO COMPEL RULE 35 EXAMINATION

          CHARLES S. MILLER, JR. UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         In this 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.

         Plaintiff 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 damages.

         Before 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.

         On May 20, 2019, the court held a telephone conference with the parties to discuss defendant's motion.

         II. DISCUSSION

         A. Whether the examination should be required

         Plaintiff 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.[1] 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.

         For these reasons, the court will require plaintiff to undergo the examination and his arguments of lack of necessity and proportionality are rejected.

         B. Whether the court should permit defendant's expert to conduct a diagnostic interview and, if so, whether that interview should be recorded

         The 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.

         With 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.

         For 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.

         In 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.

         Fed. R. 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 ...


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