Defendants in the matter of Delgado v. Frovarp sought an order compelling the plaintiff to appear for a neuropsychological examination outside the presence of any third parties, including plaintiff’s counsel. In this case, defendants retained William B. Barr, Ph.D. to conduct a neuropsychological evaluation of the plaintiff. Dr. Barr indicated that his review of plaintiff’s records led him to include that "the only way to properly evaluated the plaintiff’s condition is to conduct a comprehensive neuropsychological evaluation…." In addition, Dr. Barr objected to the presence of plaintiff’s counsel or any other third party observer during the standardized testing portion of the evaluation. Dr. Barr cited to various standards and guidelines issued by various professional boards, including the American Psychological Association, the National Academy of Neuropsychology and the American Academy of Clinical Neuropsychology which all held that third party observers should be excluded from the examination room.  It was Dr. Barr’s opinion that the presences of a third party observer would pose technical issues that would interfere with the validity of the evaluation and raise potential ethical violations.
 
Plaintiff did not object to his client submitting to a neuropsychological examination as long as he was present.
 
Under New York law, the “proponent of such a conditional examination is required simply to make “positive showing” justifying exclusion in a particular case, not a substantial burden.
 
The Court found, over plaintiff’s objection, that defendants did much more than assert in a conclusory fashion that counsel’s presence would invalidate the tests results.  The Court noted that Dr. Barr cited independent authority to support his opinion.  Plaintiff did not offer any expert opinion contrary to that expressed by Dr. Barr and his sources.
 
However, the Court noted that counsel has a right to protect the legal interests of his client at all phases of the litigation.  The Court noted that this presence needed to be weighed against the validity of the examination and the credibility of the doctor as a trial witness.
 
The court found that in order to balance the competing psychological and legal interests, the court fashioned a compromise.  The court found that plaintiff should undergo a neuropsychological examination so long as it was conducted with the use of a 2-way mirror and such other equipment, undisclosed to the plaintiff, through which plaintiff’s counsel shall be able to hear and view the entirety of the examination in real time.