Shearer v. Hafer
| Decision Date | 18 January 2018 |
| Docket Number | No. 93 MAP 2016,93 MAP 2016 |
| Citation | 177 A.3d 850 |
| Parties | Diana SHEARER and Jeff Shearer, Appellants v. Scott HAFER and Paulette Ford, Appellees |
| Court | Pennsylvania Supreme Court |
Matthew Stephen Crosby, Esq., Laurie Jo DeBarr, Esq., Handler, Henning & Rosenberg, L.L.P., for Diane and Jeff Shearer, Appellants.
Allyn Michele Starry, Esq., Laurie B. Tilghman, Esq., Allstate Insurance Company, for Scott Haver and Paulette Ford, Appellees.
Rachael Lynne Baturin, Esq., Baturin & Baturin, for Pennsylvania Psychological Association, Amicus Curiae.
OPINION
In this appeal by allowance, we granted allocatur to consider, inter alia , the collateral order doctrine and 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 under Pennsylvania Rule of Civil Procedure 4010. For the reasons set forth below, we find that Appellants have not satisfied the collateral order doctrine, and, thus, we quash the present appeal as an unauthorized interlocutory appeal, vacate the order of the Superior Court, and remand the matter to the court of common pleas for further proceedings.
The facts underlying this matter are not in dispute. On July 15, 2010, Appellee Scott Hafer was operating a motor vehicle owned by his mother, Appellee Paulette Ford. Appellant Diana Shearer (hereinafter "Mrs. Shearer") alleged that Hafer pulled his vehicle into the path of the vehicle that she was driving, causing an accident. As a result of the collision, Mrs. Shearer and her husband Jeff Shearer (collectively, "Appellants") commenced a personal injury action against Hafer and Ford (collectively, "Appellees") in the Lebanon County Court of Common Pleas. Appellants' claims included damages for cognitive harm to Mrs. Shearer caused by the accident, including a closed head injury
that resulted in headaches, cognitive impairment, and memory deficits. In preparation for trial, Appellants hired a neuropsychologist, Dr. Paul Eslinger, who was associated with the Hershey Medical Center, to perform a cognitive evaluation. This evaluation, which employed standardized testing procedures, was conducted without Appellants' counsel or any other third party present.
In response to the evaluation, Appellees hired Dr. Victor Malatesta, also a neuropsychologist, to perform an independent neuropsychological evaluation as part of their defense. Appellants did not oppose the request for an independent neuropsychological examination, but demanded that the evaluation be audiotaped, and that their counsel, or other representative, be present during all stages of the examination.
Upon learning of Appellants' preconditions, Dr. Malatesta objected based on asserted ethical grounds, and because he believed such observation could result in the introduction of bias to the process, distortion of the data, and distraction of Mrs. Shearer. Specifically, he claimed that he was bound by the ethical principles of psychologists and the Code of Conduct of the American Psychological Association ("APA") and the National Academy of Neuropsychology ("NAN") to protect the integrity of the examination and the security of the test materials. Dr. Malatesta indicated, however, that, as a compromise, he would permit Appellants' counsel to be present during the interview portion of the examination, but would not permit the presence of counsel or audiotaping during the standardized testing phase of his evaluation.
Appellants' counsel rejected the doctor's proposed compromise and sought the trial court's intervention. Following briefing by both parties, including additional information concerning the alleged practical and ethical restraints on the presence of third parties, the trial court entered an order granting Appellees' request for a protective order; however, the court stipulated that Appellants' 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 test, nor could the evaluation be recorded. The trial court reached this determination after considering Pennsylvania Rule of Civil Procedure 4010, which, as we discuss below, governs defense requested physical and mental examinations, and provides that the person to be examined shall have the right to have counsel or other representative present during an examination, as well as Pennsylvania Rule of Civil Procedure 4012, which allows for protective orders, for good cause shown, to protect a party or person from whom discovery is sought from unreasonable conduct.
Appellants moved for reconsideration of the trial court's order, and for certification of the matter as appealable pursuant to Pa.R.A.P. 1311(b) (). The trial court denied the motions, and Appellants appealed to the Superior Court.1
A three-judge panel of the Superior Court affirmed the trial court's order. Shearer v. Hafer , 135 A.3d 637 (Pa. Super. 2016). Writing for the court, Judge Jack Panella first considered whether the court had jurisdiction under the collateral order doctrine. See Pa.R.A.P. 313(b). The court recognized that discovery orders generally are deemed interlocutory, and not immediately appealable, because they do not finally dispose of the litigation; however, the court recognized that, pursuant to Rule 313, a non-final order may be reviewed if: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that, if review is postponed until final judgment in the case, the claim will be irreparably lost. The Superior Court reasoned that the order granting the protective order prohibiting the presence of third parties during the neuropsychological exam was separable from, and collateral to, the main cause of action; that any matter implicating a litigant's right to have counsel present is too important to be denied review; and that, if the question presented were postponed until final judgment, Appellants' claim concerning their right to have counsel present would be irreparably lost. Accordingly, the court found the order was a collateral order pursuant to Rule 313.
Proceeding to the merits of the appeal, the Superior Court examined Pa.R.C.P. 4010, which pertains to the physical and mental examination of persons, and was amended in 1998 to explicitly include the examinee's right to have counsel present during such examination. The Rule provides, in relevant part, that a person "to be examined shall have the right to have counsel or other representative present during the examination," and that "[t]he party who is being examined ... may have made upon reasonable notice and at the party's expense a stenographic or audio recording of the examination." Pa.R.C.P. 4010(a)(4), (a)(5) (emphasis added). The court rejected Appellants' argument that the plain language of Rule 4010, granting the right to have counsel present during the examination, is absolute. Rather, the court reasoned that, while use of the term "shall" is usually mandatory, it may nevertheless be discretionary depending upon the intent of the drafter of the rule, and that such intent is discerned from considering various factors of statutory construction.
The Superior Court next looked to Pa.R.C.P. 4012, concerning protective orders, and reasoned that Rule 4012 was intended to give the trial court the discretion to issue protective orders in various discovery scenarios, including the power to limit the number of individuals present. Thus, absent any indication that Rule 4010 was intended to curb the powers granted by Rule 4012, the panel concluded the trial court's power to issue protective orders expressly encompasses the ability to limit the number of individuals present during all discovery, including psychological examinations. Shearer , 135 A.3d at 643–44.
The court went on to conclude, however, that Rule 4012 does not empower a trial court to issue protective orders carte blanche , and that the rule places on the party seeking the protective order the burden of showing "good cause." To determine what constitutes "good cause," the court looked to its en banc decision in Dougherty v. Heller , 97 A.3d 1257 (Pa. Super. 2014), in which, at the time of the Superior Court's decision in the instant case, this Court had granted review, in part.2 Finding no basis to disturb the trial court's determination that Appellees had established good cause to warrant a protective order, the Superior Court herein echoed the trial court's finding that the official statements from NAN, and the APA's Ethical Principles of Psychologists and its Code of Conduct, were persuasive that third-party observers should be excluded from the standardized test portion of the examination to keep the test free from distraction and bias caused by such observers. The panel further agreed with the trial court's conclusion that forcing Dr. Malatesta to conduct the examination in the presence of counsel would place him at odds with his ethical duties.
Finally, the Superior Court also concurred with the trial court's concern that permitting a third-party observer into the examination room would afford Appellants' counsel an "irrefutable impeachment tool," and, given the potential that tests conducted with a third-party observer might not yield a valid result, the doctor's own statements could be used for impeachment if the court forced him to conduct his examination in the presence of a third party against his will. Shearer , 135 A.3d at 644. Noting that the concerns expressed by the doctor and the trial court were neither abstract nor unsubstantiated, the court concluded that the trial court's proposed resolution—permitting Appellants' counsel to be present...
To continue reading
Request your trial
-
Brooks v. Ewing Cole, Inc.
...it to narrowly construe the collateral order doctrine to yield to the final order doctrine. Id. at *8 (relying on Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 858 (2018) ). Accordingly, the Commonwealth Court concluded it lacked jurisdiction to address the Family Court's appeal because the......
-
Commonwealth v. Pownall
...satisfies the three requirements set forth in Rule 313(b) — separability, importance, and irreparability." Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 858 (2018) (" Hafer "). Here, the DAO argues it has met all three prongs. Starting with the second, it tersely proclaims that "whether Pen......
-
Commonwealth v. Wardlaw, 15 WAP 2020
...judgment rule, which aims to create a clear division of labor between our Commonwealth's trial and appellate courts. Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 855 (2018). In drawing that line, the rule encourages judicial economy by precluding piecemeal determinations and by preventing ......
-
In re Interest of J.M.
...review, respects the traditional role of the trial judge, and promotes formality, completeness, and efficiency." Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 855-56 (2018). It also represents a determination that "the cost of a wrong decision by a trial judge is typically outweighed by eit......