Shearer, D. and J. v. Hafer, S., 135 A.3d 637

Background

Car accident (July 15, 2010) led to Shearers suing Hafer and Ford for personal injuries, including claimed cognitive injury to Diana Shearer.
Plaintiffs previously had Diana examined by Dr. Paul Eslinger (standardized testing, no third parties present); Eslinger is listed as a trial witness.
Defendants sought an independent neuropsychological exam by Dr. Victor Malatesta; plaintiffs’ counsel demanded presence during all phases and audio recording.
Dr. Malatesta refused counsel/audiotaping during the standardized test portion, citing APA/NAN ethical rules and test‑security/validity concerns; he would allow counsel during the interview portion only.
Trial court granted defendants’ motion for a protective order: counsel may attend preliminary interview but no third‑party observers or recording allowed during standardized testing; results to be provided to plaintiffs’ counsel.
Plaintiffs appealed collateral order; appellate court found appealable under Pa.R.A.P. 313 and affirmed the protective order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pa.R.C.P. 4010 gives an absolute right to have counsel present and to audio record psychological/neuropsychological examinations	Pa.R.C.P. 4010’s use of “shall” creates a mandatory, absolute right to counsel presence and recording	Trial court has discretion under Pa.R.C.P. 4012 to issue protective orders limiting observers/recordings to protect test integrity and ethical duties	The right is not absolute; Rule 4012 allows protective orders for good cause, and court properly limited counsel/recording during standardized testing
Whether defendants met the “good cause” standard to bar third‑party observers and recordings	Plaintiff argued no good cause shown to strip statutorily protected rights	Defendants relied on Dr. Malatesta’s affidavit and NAN/APA official statements showing observers/recording jeopardize validity and test security	Good cause found: expert and professional guidelines support exclusion of observers/recordings during standardized testing to preserve validity; protective order appropriate
Whether allowing counsel’s presence would prejudice court’s administration of justice or create unusable evidence	Counsel presence is needed to protect plaintiff’s interests and ensure accurate record	Presence risks distraction, bias, test contamination, ethical conflicts for examiner, and provides impeachment material if test validity compromised	Court reasonably balanced interests by allowing counsel during interview but excluding them during standardized testing; no abuse of discretion
Appealability of protective order	Plaintiffs argued immediate appeal appropriate	Defendants argued discovery orders interlocutory	Appellate court held order is collateral, involves important right (presence of counsel), and delay would cause irreparable loss; appealable under Pa.R.A.P. 313

Key Cases Cited

Leber v. Stretton, 928 A.2d 262 (Pa. Super. 2007) (standard for collateral‑order appeal under Pa.R.A.P. 313)
Dougherty v. Heller, 97 A.3d 1257 (Pa. Super. 2014) (discussion of "good cause" balancing in protective‑order context)
Hutchinson v. Luddy, 606 A.2d 905 (Pa. Super. 1992) (protective‑order determinations rest within trial court discretion)
Sigall v. Serrano, 17 A.3d 946 (Pa. Super. 2011) (standard of review is de novo for rule interpretation)
Linde v. Linde Enterprises, Inc., 118 A.3d 422 (Pa. Super. 2015) (interpretation of mandatory versus directory use of "shall")
Fishkin v. Hi‑Acres, Inc., 341 A.2d 95 (Pa. 1975) (legislative intent governs interpretation of "shall")
Tyler v. King, 496 A.2d 16 (Pa. Super. 1985) ("shall" may be directory depending on legislative intent)
State Farm Mut. Auto. Ins. Co. v. Morris, 432 A.2d 1089 (Pa. Super. 1981) (dictum that allowing counsel at psychological exams is within trial court discretion)
Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005) (psychological exam context recognizing irreparable harm where review is delayed)