Opposition to Motion for Neuropsychological Evaluation Pursaunt to M.R.C.P. 35

 Pursuant to Mass. R. Civ. P. 35(a), the Court may, “order [a] party to submit to a physical or mental examination by a physician,” where the “mental and physical condition… of [the] party is in controversy….”  M.R.C.P. 35(a) (emphasis added)[1].  In this case, Dr. ______ is a neuropsychologist and not a “physician.”  A neuropsychologist is not “a doctor of medicine,” but is a specialist in “a science concerned with the integration of psychological observations on behavior and the mind with neurological observations on the brain and nervous system.”  The Merriam Webster Dictionary, available at http://www.merriam-webster.com/dictionary, search “neuropsychology.”  Therefore, the Court should deny the defendants’ motion for a Rule 35 neuropsychological examination based on the plain reading of the Rule.

Additionally, the defendants’ Motion for Neuropsychological Examination should be denied because the defendants lack good cause.  To establish good cause under Rule 35, the defendants must demonstrate an affirmative need for this examination and cannot rely merely on the fact that it is relevant.  Doe v. Senechal, 431 Mass. 78, 81-82 (2000) (“the requirements of rule 35 are not met… ‘by mere relevance to the case- but require an affirmative showing… that good cause exists for ordering each particular examination’”).  The defendants argue that good cause exists because PLAINTIFF cognitive deficits cannot be observed through other means.  The PLAINTIFF, however, has already provided the defendants with a detailed neuropsychological report explaining his cognitive injuries.  The plaintiff’s expert neuropsycholigist, a highly reputable neuropsychologist who practices at ________________, performed a neuropsychological evaluation of the PLAINTIFF on ______.  The neuropsychologist’s report provides a thorough evaluation of his cognitive deficits.  Id.  Moreover, the neuropsychologist opined in her report that because she conducted her evaluation two years after his collision, these injuries are permanent and unlikely to change.  Id.  Given that the defendant already has the information which another neuropsychological report would yield, a second examination is unnecessary.  Accordingly, the defendants have not made “an affirmative showing” that good cause for this examination exists.  Doe, 431 Mass. at 81-82.

Further, the defendants’ Rule 35 motion should be denied because it would be inequitable to allow the defendants to continue to conduct discovery more than three months after the discovery deadline has passed.  See Tracking Order attached hereto at Exhibit B.  The defendants have been aware of his cognitive injuries throughout the entirety of this lawsuit and even nine months before its commencement.  The PLAINTIF sent an initial insurance demand letter on ______ which included a detailed report by a neurologist at Mass General.  That report explained that the PLAINTIFF was suffering from cognitive deficits.  Then, the PLAINTIFF stated in the Complaint, filed on ______, that he suffered from “substantial cognitive deficits.”  See page 3 of Complaint attached hereto at Exhibit D.  Moreover, the PLAINTIFF explicitly stated throughout the discovery process that cognitive injury was part of his claim for recovery.  Specifically, in his answers to interrogatories, served on ______, he stated that as a result of the collision, “[he] suffered a traumatic brain injury, resulting in permanent cognitive, emotional and functional difficulties.”  See page 6 of Answers to Interrogatories.  Plaintiff’s counsel even volunteered at his deposition that a neuropsychologist had previously conducted a neuropsychological examination of the PLAINTIFF.  See pages 125-27 of the PLAINTIFF’s Deposition Transcript attached hereto at Exhibit F.  This lawsuit was filed on ______ and discovery closed _______.  See Tracking Order at Exhibit B.  Therefore, the defendant had ample time to request such an examination of the PLAINTIFF and elected not to do so within the time period allowed by the Court.  Instead, the defendants now bring this motion over three months after the deadline for conducting discovery has ended.  Accordingly, the Court should not allow such an untimely motion from the defendants. 

 The defendants’ argument that they were not provided with the neuropsycholgist’s report until the close of discovery on ____________ is inapposite.  Pursuant to Massachusetts Superior Court Standing Order 1-88, parties do not need to disclose experts until the Pre-Trial Conference.  At the time of this disclosure, no Pre-Trial Conference had been scheduled.  Nevertheless, the plaintiff chose to disclose the report earlier than required as part of a settlement demand submitted to defense counsel at the close of discovery.

 In the event that the Court allows the defendants’ motion, the plaintiffs respectfully request that the Court allow a representative from the plaintiffs’ office to be present during the neuropsychological evaluation and that the examination be videotaped.  The plaintiffs also request that the Court limit the examination to a period of time not greater than four hours in duration, if allowed to proceed.

[1] Rule 35 does not define the term “physician” nor have Massachusetts appellate courts provided any guidelines regarding who may conduct such an examination.  Although Massachusetts courts sometimes look to federal law interpreting the corresponding federal rule of civil procedure, Massachusetts courts decline to do so where there are “significant differences in content” between the cognate rules.  Van Christo Adver., Inc. v. M/A/-Com/LCS, 426 Mass. 410, 414 (1998), Rollins Envtl. Servs., Inc., 368 Mass. 174, 180 (1975).

Here, it is inappropriate to look to federal law to interpret Mass. R. Civ. P. 35(a) because Fed. R. Civ. P. 35(a) is significantly more expansive than its Massachusetts counterpart.  F.R.C.P. 35(a) (allowing examinations by any “suitably licensed or certified examiner”).  The Massachusetts Legislature has not expanded the range of individuals who may conduct a Rule 35 examination and it would be improper to presume that the Legislature intended for Rule 35(a) to be expanded along with the Federal Rule.  Accordingly, the Court should construe the term “physician” by applying its “plain and ordinary meaning” rather than look to federal law.  Id. at 700 (holding that statutes should be construed “according to the plain and ordinary meaning of [their] language”), Bynes v. School Comm. of Boston, 411 Mass. 264, 267 (1991) (stating, as an elementary principle, that if the language in a statute is plain, the court must enforce it according to its plain meaning).


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