Shearer, D., Aplts. v. Hafer, S.
177 A.3d 850
| Pa. | 2018Background
- July 15, 2010 motor-vehicle collision; Diana Shearer sued Scott Hafer and owner Paulette Ford for personal injuries including alleged cognitive/closed-head injury.
- Plaintiffs obtained a neuropsychological evaluation (standardized testing) without counsel present; defendants retained Dr. Victor Malatesta for an independent exam.
- Plaintiffs demanded counsel or other representative be present and an audio recording of the entire defense exam; Dr. Malatesta objected to presence/recording during standardized testing on ethical and test-integrity grounds.
- Trial court issued a protective order: plaintiffs’ counsel may attend the pretest interview but no one may be in the room during standardized testing and no recording is allowed.
- Superior Court affirmed, reasoning Pa.R.C.P. 4010 grants a right to a representative but Pa.R.C.P. 4012 permits protective orders for good cause and trial court properly balanced interests.
- Supreme Court of Pennsylvania granted allowance solely to decide (1) appealability under the collateral-order doctrine and (2) whether Pa.R.C.P. 4010/4012 require counsel presence/audio recording; it quashed the appeal, vacated the Superior Court, and remanded because collateral-order prongs were not met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether order denying counsel/recording during standardized portion of a defense neuropsychological exam is immediately appealable under Pa.R.A.P. 313 (collateral order doctrine) | Shearer: order is separable, right to representative/recording is too important to deny review, and loss is irreparable once exam occurs | Hafer/Ford: discovery orders are interlocutory; appeal not proper as collateral order | Court: separability satisfied, but importance and irreparability not; collateral-order test fails, appeal quashed |
| Whether Pa.R.C.P. 4010 mandates absolute right to have counsel/representative present and to make an audio recording of the entire examination | Shearer: Rule 4010’s language grants an absolute right to presence and recording during the exam | Hafer/Ford: Rule 4010 rights are subject to the trial court’s discretion and Rule 4012 protective orders for good cause | Court did not reach merits (no collateral-order jurisdiction); Superior Court had balanced 4010 and 4012 and allowed counsel only for interview phase but excluded counsel/recording during standardized testing |
Key Cases Cited
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (U.S. 1949) (formulation of the federal collateral order doctrine)
- Coopers & Lybrand v. Livesay, 437 U.S. 463 (U.S. 1978) (narrowing collateral-order review when intertwined with merits)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (U.S. 2009) (federal Court’s limitation on collateral appeals re: privilege disclosure)
- Pugar v. Greco, 394 A.2d 542 (Pa. 1978) (Pennsylvania adoption of collateral-order framework)
- Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011) (Pennsylvania approach to privilege-related collateral appeals)
- Vaccone v. Syken, 899 A.2d 1103 (Pa. 2006) (new trial/remedy can cure certain discovery-related harms)