WHO PAYS THE PIPER CALLS THE TUNE—

RULE 35 EXAMINATIONS OUTSIDE THE PRESENCE OF COUNSEL 

by 

Jonathan J. Margolis

            Jessica, my paralegal, accompanied a female client to an examination by the defendant’s doctor.   When the doctor’s report came in, I had Jessica review it.  She found that that some of my client’s responses had been, to put the best light on it, inaccurately recorded.  I had her ready to testify as a rebuttal witness, challenging the doctor’s credibility. 

            Would you let your client go to a deposition without you?  Why then (if you had any say in the matter) would you permit her or him to undergo to a physical or psychiatric examination alone?  Often, attorneys do allow clients to go into doctors’ offices unaccompanied.  Perhaps they believe that the physician’s report will provide sufficient material for cross-examination.  They may have matters on their calendars that seem to be more important.  Or they may assume that the doctor will act as an objective observer.  Each of those ideas may turn out to be exactly wrong, perhaps with disastrous consequences.

1.             A plaintiff’s attorney should make every attempt to be present (or have a representative) at any encounter between his or her client and a physician, psychiatrist or psychologist working for the other side.  (Conceivably, a plaintiff could request that a civil defendant be examined, but I have not found a case in which that has happened.)  In some instances—particularly where there is to be a psychiatric or psychological evaluation—a recording may serve as a useful alternative to an attorney’s presence.  Counsel should not view that as a way to cut costs or effort, however, but should employ it only when a verbatim account is important, there is no other feasible means of obtaining a record of what went on, the lawyer has been prevented from attending in person, or she or he fears that by attending the attorney will become a potential witness.[1] 

            Defendants often move to preclude the presence of counsel at examinations, and such motions are frequently granted.  Indeed, even motions to permit recording of examinations have been denied.  Exclusion of counsel is particularly common in matters involving psychiatric or psychological evaluations.  However, there have been cases—though, apparently, none in Massachusetts—in which plaintiffs’ attorneys have had to fight for the right to attend physical examinations, and not always with success.[2

            Although physicians’ examinations are routine in many kinds of lawsuits, the Rules of Civil Procedure recognize that such encounters are very different from interrogatories, depositions, requests for production of documents or subpoenas for records.   As then-Justice Liacos observed, “It has been noted that more than any other mode of discovery, an examination [under Mass R. Civ. P. 35] impinges directly upon the privacy and personality of the person being examined.”[3]   Recently, the Supreme Judicial Court held that, “[I]n every case where a party requests a mental or physical examination, a judge must decide as an initial matter whether the party has adequately demonstrated the existence of the Rule’s requirements of ‘in controversy’ and ‘good cause.’”[4] 

            In moving to require an examination, a party may not rely on conclusory allegations in the pleadings, or a showing of mere relevance.  The party seeking the examination must show that “each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.”[5]  

            Although the rule does not explicitly deal with the presence of counsel, it appears that no jurisdiction expressly denies the right of attorneys to attend examinations, or the making of a recording.  When the issue has been raised, however, most federal courts have sided with defendants.[6]  In contrast, some states have established a presumptive right of counsel or another observer to attend.[7]  Most jurisdictions, including Massachusetts, take a middle position, permitting the trial court to exercise discretion over the issue.[8]  California, bizarrely, permits the presence of counsel at physical but not psychological examinations,[9]  although the latter present much more potential for abuse by the examiner than the former.

            There are no Massachusetts appellate decisions explicitly permitting counsel to be present at the examination of a plaintiff (or to have it recorded), but at least two Superior Court decisions dealing with psychiatric encounters support the idea.[10] 

            The reason mentioned most frequently for keeping plaintiff’s counsel out of an examination—particularly with a psychologist or psychiatrist—is that the presence of a third party (or a recording device) will assertedly prevent the subject from focusing on the examination.[11]  Courts have also reasoned that the right to see the examiner’s report, depose the doctor, psychologist or psychiatrist and to cross-examine her or him gives the plaintiff enough protection.[12]   A number of federal courts have held that, as one said, “far from being adversarial, these examinations should be divested as far as possible of any adversary character.”[13]  The same court expressed concern that the presence of counsel at an examination could raise ethical problems by making the attorney a potential witness.[14]  That is a point worth considering, although it is hard to believe that there is much chance that attending the examination would put the attorney in the position contemplated by Rule 3.7(a); for the lawyer to be necessary as a witness, the examiner would have to commit perjury or something very close and the attorney would have to have no effective way to discredit the doctor through cross-examination.

            The idea that the plaintiff must focus only on the examination is closely linked to the frequent assertion that the methodology of psychiatry or psychology requires unimpeded communication between doctor and subject (for the plaintiff is not a patient), and that the mere presence of counsel or a recording device would damage the ethos of the examination.  This argument is frequently supported by affidavits from the prospective examiner.[15]  However, this view may represent no more than the mythology of psychotherapy.  I have found no case that cites any study or data other than the word of the examining doctor to support the contention that the presence of a third party will distort the encounter any more than its adversary nature already has, and the conclusion is hardly apparent.  Indeed, it has been explicitly challenged by some courts, one of which, which called such a contention “self-serving” and “not supported by any independent authority.”[16]   In a criminal case directing the appointment of an independent psychiatrist, the Supreme Judicial Court made a similar observation.[17] 

            A plaintiff enters the doctor’s office knowing that the examiner has been hired by the defendant and thus is hardly disinterested.[18]  Being alone with a professional hired by his or her adversary will raise apprehension and naturally lead to suspicion between doctor and subject.  Properly prepared, the plaintiff should be on guard at all times, which will interfere with the dynamics of the session.  Having counsel present to protect her or interest may well enable the plaintiff to relax, and in that way actually help to make the examination more valid.  As the Supreme Court of Colorado noted, the presence of a third party or a tape recording, might “not only lend emotional support to the examinee and protect the examinee from improper questions, but would facilitate rather than hinder the examination.”[19

            (There seems to be no good reason—apart from instances of clear abuse by the examiner—for counsel to do anything more than observe.  Thus, the attorney should be seated in a place where she or he will not intrude visually on the encounter, and should remain silent during it.  If a recording is to be made in addition to or in lieu of the attorney’s presence, the parties ought to agree that the recorder will be out of sight and be turned on before the plaintiff enters the office and off only after the examination has been completed.  If at all possible, the recording should be arranged so that no break in the session to change the tape will be necessary.  As the doctor has his or her notes, the recording should ordinarily be given to the plaintiff’s counsel, with the obligation to supply a duplicate to the defendant promptly.)

            Courts that have permitted plaintiffs’ counsel (or another observer) to be present—mainly but not exclusively state forums—take a very different view of examinations from those that have required the plaintiff go it alone.  “The underlying rationale for this line of cases is the view that the examination is part of the adversarial process…”[20]  Indeed, the greatest weakness of the cases denying counsel the right to accompany her or his client lies precisely in the courts’ failure to recognize that the examination does not involve therapy or treatment, but is instead an integral part of the litigation.[21] The attorney who witnesses an examination, will be in a much stronger position to cross-examine the doctor than an attorney who must rely on a report and her or his client’s recollection of what went on.[22]  

            Aside from the likelihood that an examiner’s bias may cloud the results, courts have noted a number of other potential sources of mischief in physical and psychological examinations.  In Gonzi v. Superior Court, the Supreme Court of California observed that “[w]henever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril.” [23]   (One might think that the risks are even greater in a psychological examination yet, as noted above, California does not accord counsel the right to be present at such sessions.)  Expanding on Gonzi, a New York court said, “[I]f the defense-employed doctor is called upon to testify at the trial on the issue of the plaintiff’s injuries his versions of the questions and answers elicited at the examination might differ materially from plaintiff’s counsel’s version of the same questions and answers.”[24]  Again, the danger would seem greatest in psychological or psychiatric examinations, in which the examiner’s conclusions will be based on the plaintiff’s responses to questions, as opposed to a physical examination where there are likely to be objective signs that can be evaluated by both sides. 

            Some courts have also expressed concern that the examiner might go outside the bounds of discovery and even seek the disclosure of privileged information.[25]  I have known of cases in which physicians have inquired into liability issues during examinations.  This might be mere curiosity, but it is at least conceivable that the doctors were trying to aid the side that hired them.  In psychiatric evaluations, it is easy to imagine the examiner getting into matters that have been discussed between client and counsel, perhaps in the guise of discovering the “real” source of the individual’s feelings about his or her injuries.

            At bottom, what plaintiffs fear about examiners is that they will abide by the old adage, “Who pays the piper calls the tune.”  No matter how eminent the practitioner, he or she knows which side is writing the check, and what that side’s interest is.  In Commonwealth v. Freeman,[26] a prosecutor described his psychiatric expert thus:  “He testifies in Suffolk County; he testifies in Middlesex County; he testifies in Norfolk County; he testifies in Essex County; he testifies straight across the Commonwealth….”[27]  Presumably, the witness’s testimony was favorable to the Commonwealth in every instance.  Perhaps the doctor was able to maintain strict objectivity in each case, but in the highly charged atmosphere of a lawsuit, opposing counsel would be well-justified in questioning that.  Indeed, counsel would be derelict in not doing so, and in not providing her- or himself with the means to do so.

            Lawyers should be able to attend their clients’ examinations, send a representative or have a recording made.  If an objection to such presence is made, the court should sustain it only where there is overwhelming evidence that the prospective harm from having a witness present will greatly outweigh the good.  Few, if any, such cases will arise.

    © Jonathan J. Margolis, 2001  One-time rights