The Neuropsych Exam: such that the plaintiff's attorney must show good
cause to be present despite the fact that it is not specifi-
The Plaintiff's Right to a
Representative
By David Roth, Esq.
Editor's Note: The Memorandum of Law that accompanies this piece
will be available in its original form for download on the NYSTLA
Publications page of the association website, www.nystla.org.
Personal injury litigation today is linked to ever-
increasing discovery requirements imposed by Court
rule and decision, as well as constantly broadening
concepts of what discovery is, what is discoverable,
and to what extent plaintiffs must lay bare their entire
existences as the result of having brought a claim for
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damages. Nowhere has this become more apparent
over time than in those situations where a hapless
plaintiff alleges a neuropsychological injury, malady or
cognitive impairment as the result of the wrongful act
of another. Defendants have been quick and relentless
at recognizing and exploiting their rights to neuropsy-
chological examinations of plaintiffs which, in this type
of case, bear little resemblance to corporeal exams for
other injury profiles. This article and its accompany-
ing Memo of Law examines the rights plaintiffs have
and the strategies plaintiff’s counsel should consider in
cases such as these.
The plaintiff has the right to have counsel and/or a
third party attend a Defense Medical Exam. (This is
also known as an IME - independent medical exam -
but since there is usually nothing independent about it,
in our office we refer to it as a DME. In Court or when
dealing with defense counsel, the term “Insurance
Medical Exam” keeps the acronym intact yet lets all
sides press their point a bit.) There have been several
issues that have arisen as to who would be an appro-
priate third party observer. In New York the judiciary
has been reluctant to permit qualified medical person-
nel to attend the DME on behalf of the plaintiff. At
the Supreme Court level the issue is often decided
in a “knee jerk” reaction to immediately deny the
request with no real basis for the denial. Interestingly,
in speaking with attorneys in other jurisdictions, the
reactions there are often the same: the answer to this
request is usually “no” because “that is the way we
have always done it.”
In New York it is virtually Hornbook law that the
plaintiff’s attorney may be present at the defendant’s
medical exam. However, plaintiffs should be aware
that the Federal Courts take an opposite position and
do not usually permit even the attorney to attend the
DMEs.1 Federal Court Rule 35 has been interpreted
Bill of Particulars
22
cally addressed within the rule.2
The request by plaintiff’s attorney to have a qualified
person attend the neuropsychological DME is often
treated by the IAS Court as if it is novel or unrea-
sonable. Those cases that have been taken up to the
appellate level have resulted in some success for the
plaintiffs in permitting physicians to attend these
defense medical exams, as detailed in the following
memo of law.
In most traumatic brain injury cases the defense usu-
ally hires their own neuropsychologist to examine the
plaintiff. The plaintiff often has a paralegal or a nurse
paralegal attend such exam, and then shortly there-
after requests the raw data to be examined by their
own neuropsychologist. (If you are not doing this, it
is strongly suggested that you start doing it immedi-
ately.) There are several issues that come up with the
exchange of the raw data. The companies that publish
the testing materials, such as Pearson Publishing,
have copyrighted the test questions: the raw data is
meaningless without these questions. The release of
test questions is problematic (see the memorandum of
law which follows) because of both a public interest as
well as the proprietary interest of the test publishing
companies.
Plaintiffs might think they are better off to attempt to
videotape the DME. Unfortunately, while the plaintiffs
are generally allowed to have a representative in the
DME, they generally are not allowed to go so far as a
videotape. Only in rare instances, such as where the
plaintiff was in a semi-comatose state, have plaintiffs
been permitted to videotape a DME. In Savaresse v.
Yonkers Motors Corp., 205 A.D.2d 463 (1st Dept. 1994)
the court stated:
It was not an abuse of discretion, however, for the
trial court to deny plaintiff’s request to videotape
or audiotape the ordered psychiatric examination in
light of the fact that counsel will be present during
the examination to protect plaintiff’s interests (cf.,
Barraza v. 55 W. 47th St. Co., 156 A.D.2d 271; Milam
v. Mitchell, 51 Misc. 2d 948; Murray v. Specialty
Chems. Co., 100 Misc. 2d 658).
Many plaintiffs’ attorneys are under the impression
that once they get the raw data, they have a way to con-
firm and analyze the findings of the test as conducted
by the defense neuropsychologist. The problem with
this approach is the questionable accuracy of the raw
data and the ease with which it can be manipulated
(either intentionally or unintentionally) by the defense
neuropsychologist. In a recent case where I attended
a psychiatric examination of one of my plaintiffs, the
 defense psychiatrist did a screening of the plaintiff.
This is more of a mini-neuropsychological exam, where
a few questions are asked over an hour, compared with
a several hour, multiple day, full-blown neuropsycho-
logical examination. The DME psychiatrist did the
testing while I watched (along with plaintiff’s treating
psychiatrist who was present without objection by the
defense). The DME psychiatrist asked certain ques-
tions and recorded certain answers which amount to
the raw data for that exam. The report that we received
that reflected the raw data contained inaccuracies in
the method as well as several errors in the findings.
Some information was additionally spoon-fed from
one question to the next. For example the first question
was similar to this: "If a bear jumped over a fox which
animal was under the other?" The next question might
be something similar to: “Tell me all the animals that
you can think of which live in the woods.” These types
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of questions posed even back to back can skew the raw
data and no one would be the wiser unless they had a
qualified professional present at the time of the exam.
Also let’s say the plaintiff is asked to count by 4s to 40.
The plaintiff stops at 19 and the DME report say the
plaintiff counted by 4s with no errors. Obviously one
cannot get to 19 counting by 4s so clearly the raw data
is inaccurate. Many attorneys believe once they have
the raw data they have everything they need; what they
do not understand is how easily the raw data itself can
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Bill of Particulars
24
be inaccurate. The test results can be recorded in any
way the examiner wants. Often what is being tested is
process time, not accuracy. Unless you have a quali-
fied person watching, there is no way to know what
is being tested, let alone the accuracy of the results.
Due to these concerns and the courts’ hesitancy to even
consider allowing a neuropsych on behalf of the plain-
tiff to be present at the plaintiff’s medical exam, I wrote
the attached memorandum of law. While writing this
memorandum, another active NYSTLA and AAJ mem-
ber was on trial with a TBI case that eventually settled
in the millions. He too requested the court to allow
his neuropsych to monitor the neuropsych DME and
was told that anyone other than someone with training
could monitor the DME! There was no basis for this
other than a knee-jerk reaction despite prevailing case
law. It is for situations such as this that I have written
the memo.
Tactically, in situations where there is some reluctance
on the part of the court to grant such a request, we
have offered to have the plaintiff’s monitoring neuro-
psychologist come in only on rebuttal to contradict the
raw data results and not to put the plaintiff’s monitor-
ing neuropsychologist on plaintiff’s case in chief. This
“half-a-loaf” strategy can often provide the middle
ground that persuades the court to allow plaintiff’s
expert to monitor the DME.
David Roth is an active NYSTLA member and
Committee activist. He is partners with Audra Roth in
the Manhattan firm of Roth & Roth, LLP, handling TBI
and significant injury cases.
1 Morrison v. Stephenson, 244 F.R.D. 405, 68 Fed.
R.Serv.3d 1271 (2007). There is a substantial body of
case law from both federal and state courts dealing with
the question presented here. It has been common for
parties, especially those who have advanced claims of
mental or emotional injury, to request that their attor-
ney attend a psychological examination requested by
the defendants, or that the examination be either video-
taped or that an audiotape recording be made. Several
decisions have canvassed the state of the law on this
issue, noting that there are cases supporting each side
of the issue and that, to date, the cases disallowing the
presence of either a third party or a recording device
at a psychological evaluation outnumber the ones
which have allowed such procedures. See, e.g., Cabana
v. Forcier, 200 F.R.D. 9 (D.Mass. 2001); Abdulwali v.
Washington Area Metro. Transit, 193 F.R.D. 10 (D.D.C.
2000); Holland v. U.S., 182 F.R.D. 493 (D.S.C. 1998).
2 Reyes ex rel. Reyes v. City of New York, (S.D.N.Y.
2000) Not Reported in F.Supp.2d, 2000 WL 1528239
(S.D.N.Y.). Rule 35 places the burden of establishing the
need for an examination on the party seeking the exami-
nation. See Fed.R.Civ.P. 35. The rule is silent, though,
on the question of who may attend an examination.
“[S]uch examinations,” however, “like all other forms of
discovery, are subject to the general provisions of Rule
26(c).” Tirado v. Erosa, 158 F.R.D. 294, 297 (S.D.N.Y.
1994). Rule 26(c) states, in pertinent part: “Upon motion
by ... the person from whom discovery is sought, and
for good cause shown, the court ... may make any order
which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed R. Civ. P. 26(c). Accordingly,
when, as here, the need for an examination has been
established pursuant to Rule 35, the party seeking the
attendance of a third party at that examination bears the
burden of showing “good cause” for such attendance
pursuant to Rule 26(c). See Hertenstein v. Kimberley
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Home Health Care, Inc., 189 F.R.D. 620, 628-9 (D. Kan.
1999).; cf. Galieti v. State Farm Mut. Auto. Ins. Co., 154
F.R.D. 262, 265 (D.Colo.1994) (“[T]he party seeking the
presence of a third party or recording device must carry
the burden of convincing the court.”); Tirado, 158 F.R.D.
at 299; Cline v. Firestone Tire & Rubber Co., 118 F.R.D.
588, 589 (S.D.W.Va.1988) (“[T]he proper rule is that
Plaintiff’s attorney should not be allowed to be present
absent a showing of good cause.”)
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Summer/Fall 2008
25
 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ___________
MEMO OF LAW IN SUPPORT
---------------------------------------------------------------------X OF PLAINTIFF’S REQUEST FOR
PLAINTIFF’S REPRESENTATIVE
PLAINTIFF,
PSYCHOLOGIST TO ATTEND
Plaintiff(s),
NEUROPSYCH EXAMINATION
- against -
Index No.: _________
DEFENDANT,
Defendant(s).
---------------------------------------------------------------------X

The Plaintiff has the right to have her own neuropsychologist attend the defense neuropsychological
examination. The Plaintiff has requested that she be permitted to have her own third party observer, Dr._______
_________, a licensed psychologist qualified and trained in the use and interpretation of neuropsychological test
instruments, to attend the defense neuropsychological examination of the Plaintiff ___________________.
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Dr. ______________ will not interfere in any way with the exam, will be there only to observe, will under-
take no participation nor will he speak to either the tester or the Plaintiff once the exam is commenced. Additionally
Dr. ________ will preserve the test instruments confidentiality and uphold the ethical principles and codes of psy-
chologists that administer these types of exams.

It is virtually Hornbook Law that a Plaintiff may have her attorney and/or a representative attend the
defense medical examination generally1 and have a representative/psychiatrist attend a psychiatric examination
specifically.2

The Plaintiff has the right and the need to have her representative third party observer who is qualified
and able to assist the Plaintiff’s attorney as to the methodology used during the testing as well as the accuracy of
the raw data of said testing of the defense neuropsychological examination.

There are several recent cases that have discussed the attendance of Plaintiff’s representative third party
observer at the defense medical exams. In the New York Jurisprudence treatise there is a clear and cogent discussion
of Plaintiff’s rights to have a qualified observer, specifically a physician of his/her choosing at the examination.

The New York Jurisprudence treatise addresses this in a clear and cogent analysis to wit:

44A N.Y. Jur. 2d Disclosure § 324E. Physical or Mental Examination of Persons 3. Procedure
a. In General
§ 324. Presence of attorney or other person during examination
A party is entitled to be examined by the defendant’s chosen medical examiner in the presence
of his or her attorney or other representative, unless the defendant makes a positive showing
of necessity for the exclusion of such an individual. The role of an attorney or representative
at a party’s physical examination is limited to that of observer, and no interference with or
restrictions upon the physical examination are permitted. The party’s attorney or representa-
tive may include a registered nurse. Absent any valid countervailing reason, the presence at
the physical examination of the party’s chosen representative, including a physician, should
be allowed. Thus, Plaintiffs are entitled to have a third-party observer physically, electronical-
ly, or otherwise present during their neuropsychological examinations. (Emphasis added.)

The Supreme Court in Ulster County has recently followed this rule as well. In Grange v. Sweet, 4 Misc.3d
470, 779 N.Y.S.2d 775 (Sup. Ct. Ulster 2004), the Court held:

The court is also aware that a physician retained by a party to examine and testify with
respect to an adverse party is not simply an impartial medical expert, oblivious to the
conflicting interests of the parties. With these principles in mind, the court holds that,
absent any valid countervailing reason, the presence at a physical examination of a
party’s chosen representative, including a physician, should be allowed (Gray v. Victory

Bill of Particulars
26
 Mem. Hosp., 142 Misc.2d 302, 536 N.Y.S.2d 679). The burden of proof rests with the
party opposing such attendance to show why the court should deny the party’s right to
have counsel, a physician or other representative present at the physical examination.

In Grady v. Phillips, 159 Misc.2d 848, 606 N.Y.S.2d 877 (Sup.Ct., Schenectady, 1993), the court permitted a
registered nurse employed by Plaintiff’s counsel to be present at Plaintiff’s examination. The court recognized the
importance, in general, of expert assistance in preparing a case, citing Brignola v. Lee, 192 A.D.2d 1008, 597 N.Y.S.2d
250 (3rd Dept. 1993). In Grady the Court also noted:

In this case, the court can articulate no sound reason, nor has defendant presented one, why
the registered nurse, as an authorized representative of Plaintiff’s counsel, should be barred
from the examination. It is, of course, presumed that the nurse’s function will be merely
that of an observer and that the nurse’s presence will not interfere in the conduct of the
examination. As to the actual physical examination the nurse will have no role. On the other
hand and for example it may become important during the trial of the action for Plaintiff
to produce testimony from someone other than Plaintiff concerning what was said in the
taking of a history and what transpired during the physical examination.

The Appellate Division in the Fourth Department specifically addressed having the attorney or other rep-
resentative attend the defense neuropsychological testing. The Court found in Jessica H. ex rel. Arp v. Spagnolo, 41

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A.D.3d 1261, 839 N.Y.S.2d 638, (4th Dept., 2007):

We conclude that the court properly allowed Plaintiff’s attorney to observe the neuropsy-
chological examination. “A party is ‘entitled to be examined in the presence of [his or] her
attorney or other ... representative ... so long as [that person does] not interfere with the
conduct of the examinations’ ..., ‘unless [the] defendant makes a positive showing of neces-
sity for the exclusion of’ such an individual” (A.W. v. County of Oneida, 34 A.D.3d 1236,
1237-1238, 827 N.Y.S.2d 790; see Ramsey v. New York Univ. Hosp. Ctr., 14 A.D.3d 349, 350,
789 N.Y.S.2d 104). Here, defendants failed to meet their burden of establishing that “the
presence of the attorney or other representative will ‘impair the validity and effectiveness’
” of the neuropsychological examination (A.W., 34 A.D.3d at 1238, 827 N.Y.S.2d 790, quoting
Matter of Alexander L., 60 N.Y.2d 329, 332, 469 N.Y.S.2d 626, 457 N.E.2d 731).

In A.W. v. County of Oneida, 34 A.D.3d 1236, 827 N.Y.S.2d 790, (4th Dept. 2006.) the issue was addressed at
length as well. The Court stated inter alia:

…A party is “entitled to be examined in the presence of [his or] her attorney or other ...
representative ... so long as [that person does] not interfere with the conduct of the exami-
nations” (Ponce v. Health Ins. Plan of Greater N.Y., 100 A.D.2d 963, 964, 475 N.Y.S.2d 102),
“unless [the] defendant makes a positive showing of necessity for the exclusion of” such an
individual (Parsons v. Hytech Tool & Die, 241 A.D.2d 936, 936, 661 N.Y.S.2d 362; see Ramsey
v. New York Univ. Hosp. Ctr., 14 A.D.3d 349, 350, 789 N.Y.S.2d 104). The defendant must
establish that the presence of the attorney or other representative will “impair the validity
and effectiveness of the particular examination” that is to be conducted (Matter of Alexander
L., 60 N.Y.2d 329, 332, 469 N.Y.S.2d 626, 457 N.E.2d 731). Here, defendants failed to make
that showing with respect to the neuropsychological examinations to be conducted, and
thus the court erred in granting those parts of defendants’ respective motions concerning
the presence of Plaintiffs’ attorney or other representative.

To summarize the law in New York State as it presently exists, the Plaintiff is entitled to have a representa-
tive attend any defense medical exam that may provide expert assistance in preparing the case. In this instance it
is proper for the Plaintiff’s representative at the neuropsychological exam to be a practicing psychologist. It would
be appropriate to have someone who is familiar with the testing procedures and who can assist Plaintiff with pre-
paring her case who is qualified to take and administer said tests. As will be seen below, the appropriate person
should be a practicing psychologist who is qualified and will honor the ethical principles of psychologists as well
as the various codes of conduct from the different psychological and neuropsychological organizations. There has
been nationwide concern about maintaining the lack of familiarity with testing questions of the general public by
the publishers of said tests as well as the different psychological and neuropsychological organizations.

Summer/Fall 2008
27
 EXPOSING TESTING QUESTIONS AND TESTING INSTRUMENTS WILL RESULT IN SIGNIFICANT PUBLIC
HARM TO THE POPULATION AT LARGE

There is a grave public policy concern regarding the importance and validity of neuropsychological testing.
The largest publisher of these testing instruments and materials was Harcourt Assessment.3 Harcourt Assessment
was acquired by Pearson with the approval of the Justice Department and has now been taken over by the Pearson
Group.4 The importance of the confidentiality of these tests is explained in the Pearson’s Published Policy regard-
ing the release of raw data. The Policy explains the reasons for keeping these tests solely within the psychological
community as follows:

Ethical Issues
The original dissemination of these test materials is carefully restricted to individuals with a
professional background in psychology, and only individuals with appropriate training in
psychological assessment should interpret the tests.  Under the Standards for Educational and
Psychological Testing (American Psychological Association), psychologists have an ethical duty to
protect the integrity of secure tests by maintaining the confidentiality of the questions and answers to
the tests and by releasing such tests only to professionals who have the same duty.
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The confidentiality of test questions and answers is paramount to maintaining the integrity of the tests
and the validity of test results.  Unlike many other types of tests, the Wechsler tests (and many of our
other tests) do not consist of a large collection of test items that are rotated.  Rather, these tests have
one expensive and highly researched version that should remain intact for 10 to 15 years.  Millions
of dollars have been spent on the research and “norming” (compiling of statistical data regarding
results) of the tests.  Any leakage of test items severely compromises the value of the tests.

In the body of Pearson’s policy regarding the release of raw data, it discusses the trade secrets and other
issues that would materially affect Pearson in the dissemination of their testing materials. What is most signifi-
cant is the point regarding the interaction between the litigation process and the need for keeping the information
within the psychological community. The policy states in pertinent part:

The release of “raw data” is often requested in legal proceedings. “Raw data” is generally defined
as the patient’s specific answers, whether spoken or written, generated in drawings, or recorded
by computers or other lab devices. Not included in this definition are the actual assessment instru-
ments, test stimuli or questions, or lab devices. Since patient answers are written on test protocols,
legal and ethical standards dictate that that portion of a patient’s record cannot be released except to
a qualified licensed psychologist, or under a judge’s Protective Order.

In regard to legal standards, copyright laws and trade secrets laws protect test publishers from
the release of assessment instruments and test stimuli or questions. In regard to ethical standards,
the 2002 ethics code of the American Psychological Association, effective June 1, 2003 (American
Psychologist, 2002, 57, 1060-1073), indicates that test scores can be released to anyone properly desig-
nated by the client (Standard 9.04), but that test materials including manuals, instruments, protocols,
and test questions and stimuli should be released only to a qualified licensed psychologist (Standard
9.11). Similar standards regarding the release of test protocols have been published by the National
Academy of Neuropsychology (Archives of Clinical Neuropsychology, 2000, 15, 383-386).

Pearson as part of the terms and conditions of the sale of their testing products is very clear on the
Maintenance of Test Security and Test Use; the pertinent section to this memo is: 4) Access to test materials must
be limited to qualified persons with responsible, professional interest who agree to safeguard their use.

The presence during testing would give any third party observer “access” to the test questions. The policy
is clear that only “qualified persons” be given access, making a neuropsychologist or psychologist the proper third
party observer. There is no compelling reason for the Courts to expose these testing questions to persons who are
not “qualified” with a responsible professional interest to safeguard their use. As is articulated herein there is not
only a proprietary interest but a public interest in the confidentiality of these questions as well.

What is significant is that the ethical code of the American Psychological Association5 as well as the pro-
tocols published by the National Academy of Neuropsychology all mandate that the test questions, testing instru-
ments and proprietary information not be disseminated to anyone other than a qualified licensed psychologist. A
qualified licensed psychologist is someone who is trained to administer these tests and is already familiar with

Bill of Particulars
28
the test questions and testing procedures. There are many other neuropsychological and psychological associations
which address these issues and all of them have similar concerns and a uniform position. Therefore, it would stand
to reason that if a representative of the Plaintiff needs to be allowed at the exam, the presence of a licensed qualified
psychologist at the defense neuropsych exam is not just appropriate but necessary to honor the ethical and legal
standards as maintained by the neuropsychological and psychological associations. The revised position paper of
the National Academy of Neuropsychology states:

…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), which specify that these procedures are to be used only by psychologists trained in
the use and interpretation of test instruments (APA, 1992; Codes 2.01, 2.06; Unqualified Persons; and
APA, 2002; Code 9.04; Release of Test Data).

…Copying test protocols, video and/or audio taping a psychological or neuropsychological evalu-
ation 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 persons unqualified to interpret them (APA, 1992;

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Codes 2.02, 2.06 and 2.10; APA, 2002; Codes 9.04 and 9.11).

….Maintaining test security is critical, because of the harm that can result from public dissemination
of novel test procedures….

… Threats to test security by release of test data to non-psychologists are significant. Research con-
firms what is seemingly already evident: individuals who gain access to test content can and do
manipulate tests and coach others to manipulate results, and they are also more likely to circumvent
methods for detecting test manipulation (Coleman, Rapport, Millis, Ricker and Farchione, 1998;
Wetter and Corrigan, 1995; Youngjohn, 1995; Youngjohn, Lees-Haley & Binder, 1999). Consequently,
uncontrolled release of test procedures to non-psychologists, via stenographic, audio or visual record-
ing potentially jeopardizes the validity of these procedures for future use. This is critical in a number
of respects. First, there is potential for great public harm…..

… Different solutions for problematic requests for the release of test material are possible. For
example, the neuropsychologist may respond by offering to send the material to another qualified
neuropsychologist, once assurances are obtained that the material will be properly protected by that
professional as well.

The Michigan Bar Journal addressed just these concerns in September 2002 in their Trial Practice section. The
article entitled “Why Protective Orders Should Be Issued for Neuropsychological Test Instruments” analyzes the
interaction between the requirement for discovery in the litigation process and the dangers of eroding the validity
and reliability of these test instruments.6 There is a great public interest in maintaining the validity of these tests.
There is an imperative need of the public to protect the integrity of these tests because they are used to assess brain
function and said tests assist in making determinations including but not limited to: surgical decisions by neuro-
surgeons; choices of medication; academic placement of students; qualification for disability status; competency to
stand trial; evaluation of insanity defenses; as well as child custody decisions. The validity of these tests would be
compromised by public disclosure (See Michigan Bar Journal article “Why Protective Orders Should Be Issued For
Neuropsychological Test Instruments” infra).

There has been limited discussion in New York regarding the threats to validity of the neuropsych testing
by exposing these test questions to the general public. In Florida these issues have been discussed and it has been
acknowledged by the Courts that there are important issues regarding the release and dissemination of the propri-
etary testing questions. In Florida DOT v. Normandy Piccolo, Cir. Court Hillsborough County, case no. 2D06-4685,
September 7, 2007, the Court discussed the various concerns regarding the testing instruments being taped and held
by Plaintiff’s attorney. The Court noted the following:

At the hearing on the motion, the neuropsychologist that DOT secured to perform the exami-
nation of Piccolo, Dr. Glenn Larrabee, testified that he would not perform the examination
unless the court required that the tape and all copies be returned to him at the close of litiga-
tion. Dr. Larrabee explained that the nature of a neuropsychological examination is such that
it is essential that an examinee not be provided the questions to be asked and the protocol to
be followed prior to the examination. He opined that should a copy of an examination remain

Summer/Fall 2008
29
 with an attorney after the completion of litigation, it could be used to prepare other clients to
take such examinations, thereby compromising the results of future examinations. According
to Dr. Larrabee, because the questions used in a standard neuropsychological examination
have required extensive effort to develop, a proprietary interest exists that must be protected.
He also referenced the code of ethics adopted by his professional association that indicates
that such materials should not be given to those not certified as neuropsychologists and that
any such videotapes should be returned to the examiner. Additionally, DOT presented affida-
vits that indicated that other neuropsychologists in Central Florida were of the same opinion
and would not perform the CME under the conditions of the protective order. Accordingly,
DOT argued that denying its motion to modify the protective order was tantamount to deny-
ing it the opportunity to defend the case.

Although these issues have not been addressed in any depth by the New York Courts there has certainly
been a great concern nationwide over the continuing integrity of the neuropsych testing.

In the case at bar the Plaintiff is entitled to have a representative at the defense neuropsych examination.
The defendant cannot show that a qualified practicing psychologist bound by the various principles and codes
would not be an appropriate third party observer compared with any other representative of the Plaintiff who
is not bound to follow such principles.7 Having a licensed psychologist such as Dr. _______________ observe the
testing will protect the integrity of the testing while permitting the Plaintiff to have a representative that can assist
Roth

with trial preparation. To permit another person not bound by such principles and codes to observe the neuropsych
testing makes the test questions subject to dilution of their effectiveness. The additional exposure of the testing to
persons not already qualified to administer said testing unnecessarily exposes the questions to dissemination to the
public at large. By simply knowing the questions beforehand, it completely invalidates many of the answers. The
threat to the general public can only be protected by having a practicing psychologist observe the testing.

Dr. ____________ will supply an affidavit to the same effect as above if the Court requires.

Dated: New York, NY

July 2, 2008

_____________________________

1 Precedent permits a party’s attorney to be present during an adversary’s physical examination under CPLR 3121
(A party to a civil action is generally entitled to have his or her attorney or other representative present during a
physical examination conducted at an opponent’s demand by its physician provided the representative does not
interfere with the conduct of the examination.) Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612 (4th Dept.
1982); Ponce v. Health Ins. Plan, 100 A.D.2d 963, 475 N.Y.S.2d 102 (2nd Dept. 1984); Lamendola v. Slocum, 148 A.D.2d
781, 538 N.Y.S.2d 116 (1989); Grady v. Phillips, 159 Misc.2d 848, 606 N.Y.S.2d 877 (Sup. Ct. Schenectady 1993).
2 Gray v. Victory Memorial Hosp., 142 Misc.2d 302, 536 N.Y.S.2d 679 (Sup. Ct., Kings County, 1989). The court
permitted Plaintiff’s psychiatrist to be present to observe Plaintiff’s examination by defendant’s psychiatrist.
3 The below quote is from the Pearson (Harcourt Assessment) website which describes their company and the
importance it has in the neuropsych community: “Harcourt Assessment, Inc., has a long and rich history that dates
to the early part of the 20th century and is tied to some of the most respected names in publishing.
Although our modern-day company name derives from Harcourt Brace & Company, which was established in
1919, our corporate heritage goes back a bit further – to 1905 and the founding of World Book Company. Many of
the flagship educational products we offer today originated at World Book. Our industry-leading psychological
assessments originated at The Psychological Corporation, which was founded in 1921.”
4 Pearson, the international education and information company, today announced it had completed the previ-
ously announced acquisition of Harcourt Assessment from Reed Elsevier. The acquisition had received U.S.
Department of Justice clearance Jan. 24, subject to the sale by Pearson of several diagnostic assessment tests.
The acquisition extends Pearson’s position as the world’s leading education company by adding new capabili-
ties, complementary products and international reach. Harcourt Assessment brings an extensive catalog of
respected, research-based education tests such as the Stanford Achievement Test and the Otis-Lennon School
Ability Test, market-leading clinical assessments such as the Wechsler family of intelligence tests, the Beck scales,
the Preschool Language Scale and a host of other psychological, occupational therapy and speech assessments.
Additionally, Harcourt Assessment brings educational testing contracts to the organization in more than a dozen

Bill of Particulars
30
 states and school districts.
5 9.04 Release of Test Data
(a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and
psychologists’ notes and recordings concerning client/patient statements and behavior during an examination. Those
portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to
a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release.
Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or
misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these
circumstances is regulated by law. (See also Standard 9.11, Maintaining Test Security.)

9.11. Maintaining Test Security

The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test
data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and
security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner
that permits adherence to this Ethics Code.

6 Often, testing psychologists are asked to disclose test materials to lawyers and other individuals who are not
ethically or legally obligated to keep these materials confidential. Sometimes these materials will be admitted into
evidence as part of the public record. These actions slowly erode the validity and reliability of the instruments as
the test items become more widely available to anyone trying to obtain access to them.
Roth

American Psychologist, Vol. 54, No. 12, p. 1078 (Dec 1999).

7 2. Psychologists’ Professional Duty
The APA Code of Conduct (1992) requires that Psychologists refrain from misuse of assessment techniques,
interventions, results, and interpretations and take reasonable steps to prevent others from misusing the information
these techniques provide. This includes refraining from releasing raw test results or raw data to persons, other than
to patients or clients as appropriate, who are not qualified to use such information.

Principle 2.02(b)
Psychologists make reasonable efforts to maintain the integrity and security of tests and other assessment techniques
consistent with law, contractual obligations, and in a manner that permits compliance with the Ethics Code. (Emphasis
added.)

Principle 2.10
3. Proprietary Interest of Test Developers
Testing companies invest enormous sums developing and validating testing instruments. Understandably, they assert legal
protection of this intellectual property, a protection specifically envisioned by MCR 2.302(C)(8).

Member Discounts through the Partnership for Justice!

See the Partner Services Directory on p .82 for Contact Information.
Settlement Services: F orge C onsulting , for no additional cost, provides exclusive representation to the plaintiff in the analysis and/or
development of any Structured Settlement. (Code = NYSTLAPFJ)
• 75% discount for NYSTLA members for 50 A/B Analysis, pre/post verdict.
• Free reveiw of infant/wrongful death compromises.
• Free Structured Attorney Fee analysis.

Investigative Services:
MSA I nvestigations will offer a 20% discount on the next case for current or new clients. (Code = PFJ)
PM I nvestigations is providing 25% off the first 5 cases they work on for you!
(Includes locating a client, serving subpoenas, or obtaining witness statements.) (Code = PFJ)

Process Serving: U nited P rocess S ervice I nc . - Free one month unlimited routine process service for new clients in the New York
Metropolitan area (five boroughs of New York City, Nassau, Suffolk, Westchester, Rockland, Orange, Sullivan, Putnam & Dutchess counties).
(Membership discount code: TLA1008)

Appellate Printing: S t . L ouis W est , I nc . is providing 10% discount to NYSTLA members. (Code = SLW10)

Litigation Support: e L aw - $10 off unlimited life of a case eWatches-from $39.50 to $29.50. (Code = NYSTLAPFJ)

Video Services: W ander C ommunications will offer a 10% discount to members. (Code = W102008)

Advertising: A mbassador M edia - 15% off on all new ads 1/2 Page & larger (Code= 8234)

Expert Services: T he TASA G roup will waive the $175 administrative charge on the invoice for one expert’s services on one new matter.
(Code = NYSTLAPFJ)

Demonstrative Evidence: F rein L azzara , L td . will give 10% off the total invoice for first time clients. (Code = PFJ)

Bill of Particulars
32