Civil practice – Neuropsychological examination – Rule 35

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Where a defendant filed a motion seeking an order requiring the plaintiffs’ ward to submit to a neuropsychological examination, a judge’s decision to allow the motion should be affirmed because a neuropsychologist falls within the definition of “physician” under rule 35 of the Massachusetts Rules of Civil Procedure.

“A court may order a party whose mental or physical condition is at issue to ‘submit to a physical or mental examination by a physician … for good cause shown.’ Mass. R. Civ. P. 35(a), 365 Mass. 793 (1974). Here, in connection with an appeal of such an order in a negligence suit, we are asked whether a neuropsychologist falls within the definition of ‘physician’ under rule 35. We conclude that the answer is yes and affirm the motion judge’s decision to allow the motion for examination. …

“Thomas M. Ashe suffered serious and permanent injuries as a result of a work-related accident that the defendants allegedly caused. Ashe’s coconservators, the plaintiffs in the litigation, sued multiple parties for negligence, including Shawmut Design & Construction, Inc. (Shawmut), the general contractor for the worksite.

“During discovery, the plaintiffs produced records demonstrating Ashe’s physical and cognitive deficiencies based on an examination conducted by Jeffery B. Sheer, Ph.D., a board-certified clinical neuropsychologist. Shawmut sought to have Ashe examined by its expert, Karen Postal, Ph.D., also a board-certified clinical neuropsychologist, because, after a review of the records, Postal disagreed with Sheer’s conclusions regarding Ashe’s deficits.

“When the plaintiffs declined to make Ashe available, Shawmut filed a motion pursuant to rule 35 seeking a court order requiring Ashe to submit to a neuropsychological examination. The plaintiffs opposed the motion, arguing that rule 35, which applies to examinations performed by a ‘physician,’ precluded examination by Postal. After a hearing, the motion judge granted the order for examination, and the plaintiffs appealed. …

“The plaintiffs argue that the judge’s order was improper because Postal is not a physician within the plain meaning of that term as it appears in rule 35, and because Shawmut did not establish good cause for the examination. For the reasons that follow, we disagree. …

“Although the plaintiffs contend that the definition of ‘physician’ does not include neuropsychologists, we are not convinced that the term is meant to be read as narrowly as the plaintiffs suggest. …

“Neuropsychologists conduct assessments to ‘evaluate, diagnose, and treat individuals with known or suspected neurological disease and/or injury.’ … Thus, although not a medical doctor, a neuropsychologist is a ‘person skilled in the art of healing’ and is, indeed, a ‘physician’ pursuant to that definition of the word. …

“Further, in considering the meaning of ‘physician’ as it is used in rule 35, we are reminded that it is incumbent on us to interpret our rules of civil procedure in a ‘manner which will accomplish their obvious purpose and objective.’ …

“The purpose of rule 35 in particular is to provide a defendant with an equal opportunity to evaluate any injuries the defendant is alleged to have caused. … Here, after the defendants received a report of Ashe’s condition from the plaintiffs’ neuropsychologist, it seems obvious that the defendants may invoke rule 35 to give them an opportunity to have their own neuropsychologist examine Ashe so as to ‘level [the] playing field.’ … We thus conclude that neuropsychologists are physicians for the purposes of rule 35. …

“The plaintiffs additionally argue that Shawmut failed to demonstrate good cause for the rule 35 examination. However, during the hearing on the motion, Shawmut’s counsel explained that the conclusions that the plaintiffs’ neuropsychologist reached may have been skewed by a failure to consider Ashe’s visual impairment. Shawmut thus sought to have its own neuropsychologist examine Ashe to provide a ‘level playing field’ on which to evaluate the conclusions reached by the plaintiffs’ expert. The judge aptly noted that as Ashe’s cognitive deficits are the central issue in the case, she could not ‘imagine a better cause.’ We agree. …

“We conclude that the judge did not abuse her discretion by allowing Shawmut’s motion for an order requiring Ashe to submit to an examination by Postal. … The order allowing Shawmut’s rule 35 motion is affirmed.”

Ashe, et al. v. Shawmut Woodworking & Supply, Inc., et al. (Lawyers Weekly No. 10-045-22) (8 pages) (Budd, C.J.) A pretrial motion to compel a neuropsychological examination was heard by Heidi E. Brieger, J., in Superior Court. Marsha V. Kazarosian (Shawn P. O’Rourke, Walter A. Costello Jr. and Marc A. Moccia also present) for the plaintiffs; Mark B. Lavoie for Shawmut Woodworking & Supply, Inc.; Matthew C. Welnicki, for Lanco Scaffolding, Inc., was present but did not argue; Lee Dawn Daniel, Thomas R. Murphy, Kevin J. Powers and Paul R. Johnson submitted a brief for Massachusetts Academy of Trial Attorneys, amicus curiae; Kyle E. Bjornlund and Grant D. King, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief (Docket No. SJC-13152) (April 15, 2022).

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