MOTION TO COMPEL THE RELEASE OF RAW DATA AND TEST BOOKLETS

Transcription

1 MOTION TO COMPEL THE RELEASE OF RAW DATA AND TEST BOOKLETS NOTE: This document has not been updated and all articles cited need to be verified independently and all caselaw cited verified to make sure the caselaw is appropriate and has not been overturned or limited. COMES NOW the Plaintiff, by and through his/her undersigned attorneys, and moves this Court for the following: 1. Production of all raw data, testing material, handwritten notes and actual tests utilized in reaching any conclusion with reference to this case. 2. Production of test booklets at the defense doctors deposition. To require that all the tests administered by the defense Neuropsychologist be provided only to the plaintiff s Neuropsychologist would presume erroneously that a plaintiff s Neuropsychologist actually owned all of the tests administered by the defense Neuropsychologist. There are hundreds of neuropsychological tests and psychological batteries available and various versions of these tests. For example, the Wechsler Adult Intelligence Test exists in its original form, a second version; the WAIS, R and a third version, the WAIS, III. Furthermore, the defense argument that these tests cannot be disseminated because it results in individuals learning how to beat the test must consider the fact that these are already available for purchase and, in fact, as indicated in Are Psychologists Hiding Evidence? A need for Reform, Claims magazine, by Dr. Paul Lees-Haley, PhD, he states: (page 2 of article) he makes it clear that anyone can go to the Library of Congress and obtain these tests. Moreover, numerous copies of copyrighted tests and test manuals are sent to the Library of Congress. There, they are available to any library patron who asks, and accessible to residents of other areas through inter-library loan services, consultants and professional research services. The contents of many of the most widely used tests are available to the public in texts that can be purchased through public bookstores or borrowed from libraries. There are 567 questions in the MMPI-2, a common psychological personality inventory 1

2 and multiple cross-referencing scales. This is only one of many tests administered by the DME. The DME failed to explain in any degree of specificity just exactly how someone could beat the test or be coached. The defense certainly could have produced this information, had it existed, in camera and thus protected the test publishers. However, the defense did not and the undersigned would put forth the proposition that the defense did not because the defense could not. Furthermore, if the parties agree not to disseminate the tests material outside the four corners of this law suit, then that concern is moot. Dr. Lees Haley indicates that the following individuals also have access to tests and test data: (page 5 of his article) teachers' aides principals and assistant principals special education teachers speech pathologists physical therapists managers executives supervisors training and development specialists personnel managers human resources managers industrial psychologists licensed and unlicensed school psychologists licensed and unlicensed educational psychologists guidance counselors vocational experts 2

3 rehabilitation consultants clerical and administrative personnel at all levels licensed and unlicensed counseling psychologists and school counselors research scientists court reporters attorneys Therefore, this material is already available to individuals other than the doctor and it is important this court determine whether or not: A. The tests the doctor claims he gave were actually given. B. The test was scored correctly. C. The tests actually tests for those issues which the doctor testifies that it does. D. The patient actually answered the questions (i.e. is the handwriting actually the patients? The defense s position is akin to permitting the DME to have an ex parte deposition of a brain damaged plaintiff with no court reporter to protect for accuracy. The defense admits that the patient gets to see the raw data. The patient has the raw test data (i.e. test questions) given to him and used against him in this case but the defense seeks to preclude the patient s own attorney from seeing the very items that serve as the basis for the defense in this case. The psychometrician, who may not have any college education whatsoever, gets to see the raw data. The secretary typing up the report and copying pages for the file gets to see the raw data. The only person prevented from seeing the raw data is the person who needs it the most, the patient s attorney. Defense claims that providing the data to the plaintiff s expert psychologist will comport with the law and should address the plaintiff s concerns. It does not because of the following: A. The doctor does not know or remember if the patient actually answered 3

4 the questions as set forth in the raw data because the plaintiff s treating doctor was not present when the DME examined the patient. B. The lawyer cannot familiarize himself with the actual answers given by the plaintiff nor can he ask the plaintiff why certain questions were answered in a certain fashion so as to explain the results. C. The defense position requires the plaintiff, ultimately responsible for the cost of this law suit, to pay an expert hundreds of dollars per hour (his own psychologist) to go through this information when the plaintiff s lawyer is paid on a contingency basis and it, therefore, does not cost the plaintiff additionally for his or her lawyer to go through the material. D. Even if the plaintiff s treating psychologist has access to the raw data, he or she will not know the forensic significance of same. For example, the DME may claim he conducted a very thorough examination and his report reflects all significant findings. However, the plaintiff s lawyer may find that a question answered on the MMPI2 reveals the patient endorsed suicidal items. Claiming to write a thorough report and leaving out the fact that the patient was actively suicidal has great forensic meaning that would be missed by a non-lawyer. E. The defense s position assumes the treating psychologist already has the tests and test questions given by the DME. This is frequently a fallacious assumption because there are hundreds of potential psychological tests and multiple versions. Without producing the tests and test questions, it thus requires the plaintiff s treating doctor to go out and buy the test and test questions and such costs are ultimately passed on to the plaintiff in this law suit. F. The lawyer cannot have a confidential conversation with his client about the reasons he or she answered items in a certain manner because the only way to find out the raw data is to include a third party, the plaintiff s psychologist, which then eliminates attorney client privileged communications. The defense would have the opportunity to crossexamine the psychologist about the conversations between the plaintiff 4

5 and his attorney in the presence of the doctor. G. The attorney could hire a psychologist and have the very same tests administered to the lawyer and thus see the actual questions at great and unnecessary expense. Therefore, the argument that the lawyer cannot see the items is illogical. The lawyer can see the items. He just has to undergo an expensive and irrelevant psychological examination and thus he will have seen each and every item. T H. The problem is that the lawyer has no framework with which to place the items. I.e. why did my client answer true to question 32 of the MMPI2? The lawyer needs this information to be able to not only examine the DME about the test but explain to the jury why the client, for example, might have an elevation in the hypochondrias scale that actually reflects legitimate organic pathology. If a scale gives points towards being a hypochondriac when the plaintiff admits to symptoms consistent with that disorder, hoping the plaintiff s expert will be able to explain this in vague terms to the jury is not sufficient. Furthermore, the treating psychologist may not have the medical reports which outline those very symptoms that will be in the hands of the plaintiff s lawyer. I. The jury needs to hear the items that give rise to elevations in certain scales to weigh the legitimacy of the conclusion. For example, if the doctor claims the plaintiff is malingering based on the Fake Bad Scale, the jury has the right to understand the scale and the plaintiff s lawyer has the right and must be able to explain to the jury that each item endorsed by the plaintiff, such as headaches, stomach problems, can be explained by a brain injury and narcotics causing gastric upset. Failure to permit the plaintiff s lawyer to do so removes his ability to prosecute the case and places him in the position of hoping the jury will simply believe his expert over the defense expert without giving the jury the actual facts upon which to draw the conclusions themselves. Defense expert will admit he has in many cases in the past been required to release raw 5

6 data pursuant to court order. In fact, many judges in this state have required same. The undersigned will agree to shred all raw data at the conclusion of the trial so as to assuage the concerns of defense that the material makes its way in the public domain. Most importantly, (2) of the Florida Evidence Code entitled "Disclosure of Facts or Data Underlying Expert Opinion" states in relevant part: Prior to the witness giving the opinion, a party whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness's opinion. If the party establishes prima facia evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data. In order for the plaintiff to determine whether the underlying facts or data are sufficient for the witness to give their opinion, the attorney must have the data, including what answers were given to the doctor by the plaintiff, whether the testes in questions were actually given and whether the hand written material completed by the plaintiff was actually completed. The APA is not state or federal regulatory body, but simply a voluntary organization to which a psychologist may or may not choose to join. It has no regulatory or persuasive authority over this court or any other. Additionally, nowhere in the code does it prohibit a doctor from releasing test data upon court order. Furthermore, in fact, the APA code of ethics has been revised in 2003 to become HIPAA compliant and requires release of some raw data upon a HIPAA compliant release from the patient. Federal HIPAA law supersedes state law and even the Florida Administrative Code (now obsolete pursuant to HIPAA) does not preclude the doctor from releasing the raw data to the plaintiff. In fact, the Florida Administrative Code, 64B (3)(2). It specifically states that the raw data must be released Awhen the release of the material is otherwise required by law. Fla. Admin. Code 64B (2002). 6

7 Pursuant to an attached Bulletin , Insurance Commissioner Bill Nelson confirmed that, in fact, HIPAA supersedes conflicting state law. All Insurance Companies Authorized to Write Life and Health Insurance in Fl. And All Health Maintenance Organizations: Noncomplying Health Insurance Statues, Bulletin , Treasurer, available at (Jan. 7, 1998). Therefore, if the Florida Administrative Code is to be argued as to somehow preclude release of the raw data, since both the APA Code of Ethics permit release of certain patient data and new federal guidelines (HIPAA), the federal guidelines would take precedence over any Florida Code anyway; the argument tendered by the defendants has no merit. part: Rule 9.04 of the American Psychological Association Ethics Code 2002 states in relevant (a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, Maintaining Test Security) (Emphasis supplied). A review of the APA Fact Sheet for Neuropsychologists reveals that the APA specifically states (page 3): 7

8 Under HIPAA regulations, patients generally now have access to their records, including neuropsychological reports, tests responses and raw data. See: American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, Assessment: Release of Test Data, 9.04 (2002). The defense is taking the position that it is correct, and in fact SUGGESTED that the defense expert be permitted to document responses and plaintiff s behavior during an exam but refuse to permit the plaintiff herself in this case the same opportunity via a videographer. Many of the items on psychological tests can be, in essence, Backdoor interrogatories asking the plaintiff questions the answers which can be used against him or her. Medicine is an inexact science. Specifically, psychology and psychiatry are perhaps the most imprecise fields of scientific medicine. Conclusions drawn from psychologists are not based on objective radiographic evidence but in fact, predominately in the field of psychology, are based upon comparisons and profiling. For example, the MMPI-2 is one of the commonly administered psychological inventories in the world. It consists of 567 true/false questions and conclusions are not based upon the patient s actual answers, but rather on how those answers compare with other individuals who answered those same questions and on whom diagnosis may or may not have been made. In other words, the patient is compared to a group of subjects who also took the test and estimations are drawn based on how he or she compares to that sample. Pearson Assessments, the publisher of the MMPI-2, was aware of published books sold to the public which contain the entire MMPI-2 in the book itself such as Development and Use of the MMPI-2 Content Scales, Butcher, J.N, Graham, JR, Williams, CL Ben-Porath, YS, l990, University of Minnesota Press (Note: The University of Minnesota Press holds the Copyright to the MMPI-2 and this organization was selling a book containing the entire test and suggesting interpretative suggestions with said book sold to the public) Furthermore, the entire MMPI2 was contained in an appendix in University of Minnesota Press and The MMPI, MMPI2 and MMPIA in Court, A Practical Guide for Expert Witnesses and Attorneys, Pope, Kenneth, Butcher, James N. Seelen, Joyce. 1993, APA publishing. 8

9 For the defense to now claim the plaintiff s lawyers and the plaintiff cannot receive the actual answers given by the plaintiff, nor the test administered because the test needs to be protected from public eyes, when the publisher of the very test published the entire test and sold it to the public is an exercise in cognitive dissonance. While the publisher printed subsequent versions of the books without the actual test, the horse is out of the barn, so to speak in that the tests were placed in the public domain by the publisher of the test itself. To now claim it is secret is an exercise in cognitive dissonance when the publisher released the raw data to the public initially. Psychological batteries which cannot diagnosis with specificity or exactness any conditions, but really tell us simply how an individual compares to other individuals who might have taken the same test. Not having access to raw data does not permit the plaintiff to explain to his or her lawyer why he or she may have answered a question a certain way. To claim it is sufficient to send the raw data to the plaintiff s psychologist is not sufficient. That eliminates the ability of the lawyer to have a confidential conversation with the plaintiff about why the plaintiff answered questions a certain way and required the additional time and expense of paying his or her expert to discuss the test results without letting the patient even see them to verify if the answers truly reflected the plaintiff s responses. To permit a psychometrician with perhaps only a high school education access to the test items but claim the patient and or his attorney cannot see them is illogical. This is the equivalent of conducting an MRI and then refusing to let the plaintiff s lawyer see the results or investigate the methods by which it was administered or interpreted. If the defense seeks a protective order requiring the plaintiff to shred the raw data, not publish it to third parties outside this law suit, and plaintiff agrees, then all of the defense concerns should be resolved. Some psychological tests may result in the plaintiff being accused of malingering. This 9

10 can result in the plaintiff being charged with two crimes - Perjury and Insurance Fraud. The risk is greater than simply losing a personal injury claim and losing funds by which to pay for future medical care. These tests can result in criminal prosecution and denying the plaintiff and his or her attorney the right to see the data upon which the defense expert reaches his conclusion deprives the lawyer of being able to adequately prepare for and engage in meaningful crossexamination. The administration and interpretation of psychological testing are rife with potential abuse. As indicated by an article published in the Workers Injury Litigation Group, there are many ways in which a psychologist can control the ultimate conclusion by manipulating the data. Dorothy C. Sims, Cross Examining the Psychiatric Expert, 3 Workers First Watch, 13, (2003). The only way to determine whether or not this manipulation is present is to account for the controls dealing with the administration and interpretation of the test data. Put differently, placing a witness at a scene of the examination. As indicated in the article, there are many other situations in which manipulation of the data can occur. For instance, a psychologist may claim an individual does not have brain damage because she answered memory questions indicating no impairment, however the psychologist may have stopped the examination, given the patient the answer and then recommenced the examination. The only way to catch this type behavior is to have a witness and to also to be able to verify the tests themselves. Psychologists use psychometricians to administer and interpret tests. These individuals may have no formal training in psychology nor are they typically psychologists yet they have access to all the data and, in fact, often administer and score the tests. The defense takes the position that the plaintiff can t even see his own test responses nor can he go over them with his own attorney to explain how or why he answered questions a certain way or, if in fact, the raw data is even his own handwriting. To indicate that the material would be sent to the treater interferes with attorney client privilege because it would require the plaintiff s psychologist be present during these 10

11 conversations and further would mean the attorney would have to pay the doctor by the hour, an unnecessary expense and finally, the questions and the attorney may have about the plaintiff s answers based upon the test questions typically be very different than the questions a psychologist might task. Yet to preclude the lawyer from even seeing his own client s responses and the questions asked would mean he would not have the opportunity to even inquire or explain to the court or jury why the answers exist. The undersigned has no objection to destroying the raw data, although, it appears unnecessary as referenced above. The defense takes the position that the psychologist AND the plaintiff can see the test material. An unlicensed non-psychologist (the psychometrician who gives and interprets the test for the psychologist) can see the test material but the lawyer representing the plaintiff cannot. This ties the hands of the attorney in his ability to explain or understand the testing conducted on his own client. Furthermore, the defense has cited no support for the proposition that this court cannot order the release of the raw data subject to protective order nor is there any documentation that suggests a psychologist ignore a court order. Courts frequently order release of raw data. See exhibit #. Orders permitting release of raw data. HIPPA laws permit patients to have access to their own medical records, trumps any claims that the patient is not entitled to see his own records to even verify whether his handwriting has been erased altered or whether in fact, it is even his own handwriting on the answer sheets in the first place. There is no way the treating psychologist would know this so forwarding the data to that individual is worthless. Furthermore, the IQ test which Dr. Doe often administered can be viewed by parents if a child is administered such a test in a school environment, and, in fact, in the attachment to 11

12 Defense Motion, a printout from the Harcourt Web Site (test publisher of the WAIS III IQ Test), Harcourt, the publisher of the test, specifically permits parents of children who are given the test to view the test questions (See page 3 of attachment). In fact, the test publisher admits that Pursuant to Family Education Rights and Privacy Act (FERPA) parents have the right to inspect and review the education scores of their children (20 U.S.C sec l232g(a)(l)(a) and even the publisher admits the parents can review the IQ tests/results/raw data. In this case, Dr. Doe/defense argues the plaintiff is not even entitled to look at the test results, much less make copies. Where, had the plaintiff been a student in an educational setting, she would surely have been able to review the material pursuant to the test publisher s own statement attached by the defendant. Furthermore, no code of ethics or law anywhere requires a psychologist (Florida does not license nor regulate Dr. Doe s claimed area of specialty, that being neuropsychology) to violate a court order requiring the production of the material. The lack of logic is further clarified when one considers all the test questions themselves are given to the plaintiff, yet, somehow, the plaintiff s attorney should not be provided the data which supports the basis of the defense expert s opinion. To claim, somehow, that in a forensic environment the plaintiff is entitled to any fewer rights is illogical if the only reason for the requests is to protect the test publisher s rights. The claim that the test questions constitute a trade secret as indicated in the print out from Harcourt web sites is contrary to logic. How can the questions that are given to the plaintiff in the case be a trade secret if they are not secret? That is the equivalent of telling the plaintiff the secret recipe for Kentucky Fried Chicken then claiming it becomes a secret once her lawyer wants to understand it. Furthermore, since the APA Committee on Psychological Tests and Assessment issued a 12

13 Statement on Third Party Observers in Psychological Testing and Assessment: A framework for Decision Making and specifically discusses If the assessment and/or test administration is to be recorded, audio recording may be less intrusive than a video recording. And thus suggests the court may enter an order advising the parties to destroy the recordings at the conclusion of the legal proceeding. See Committee on Psychological Tests and Assessments, APA, Copyright Therefore, the APA clearly discusses the realities of the plaintiff and his or her lawyer actually recording the entire examination including the testing portions which consists of test questions and answers themselves. To now take the position that the lawyer cannot see the questions and answers when the APA discusses the realities of actually recording those items is inconsistent with the realities of the APA s position. Furthermore, the defense expert may administer a test in a nonstandard fashion or administer a test that has no test administration or interpretation manual which thus affords the defense expert to conclude the tests means anything he or she wants it to mean. The only answer to this dilemma is for the lawyer to see the raw data, go over it with his client and research the test. The APA published a document called The Rights and Responsibilities of Test Takers: Guidelines and Expectations and specifically finds in 4h that one of the rights include: Test takers have the right to request and receive information regarding whether or not they can obtain copies of their test answer sheets or their test materials which clearly implies that obtaining same is possible. See: In order for the plaintiff to determine whether the underlying facts or data are sufficient for the witness to give their opinion, the attorney must have the data, including what answers were given to the doctor by the plaintiff, whether the testes in questions were actually given and whether the hand written material completed by the plaintiff was actually completed. 13

14 This was aptly reasoned by the Fifth District Court of Appeals, in stating, in Lunceford v. Florida Const. R. Co. Inc, 728 So.2d 1239, 1241 (Fla. 5 th DCA l999),...it is the privacy right of the petitioner that is involved, not the privacy interest of the examinee and if the petitioner wants to ensure that the completed examination is accurately preserved, the petitioner should generally be entitled to do so. In Brompton v. Poy-Wing, 704 So. 2d 1127 (Fla. 4 th DCA l998), the Fourth District Court of Appeal, in considering a plaintiff s right to have his/her counsel or other representative present during a compulsory examination, noted that Florida Rule of Civil Procedure l.360(a)(3) gives the trial court discretion to establish rules for the protection of the examinee and to maintain the integrity of the particular examination process during a court ordered independent medial exam (IME). The court, however, added that the general rule is that: Absent any valid reason to prohibit the presence of a patient s counsel or other representative, their presence should e allowed. The burden of proof rests with the party opposing third party attendance to show why the court should deny the examinee s right to have counsel, a physician or other representative present. Id at 1128 In Bartell v. McCarrick, 498 So. 2d 1378 (Fla. 4 th DCA l986), the Fourth District, citing Jakubowski v. Lengen, 86 A.D. 2d 398, 450 N.Y.S. 6l2, 114 (N.Y.App. Div l982), provided the following reasoning for permitting a plaintiff s counsel to be present during a compulsory examination: A physician selected by the defense to examine plaintiff is not necessarily a disinterested, impartial medical expert, indifferent to the conflicting interests of the parties. The possible adversary status of the examining doctor for the defense is, under ordinary circumstances, a compelling reason to permit plaintiff s counsel to be present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to seek damaging admissions. Bartell v. McCarrick, 498 So. 2d 1380 (Fla. 4 th DCA l986) (emphasis supplied). 14

15 The right to have a third party present during a compulsory examination pursuant to Fla. R. Civ.P indicates the right to have a videographer and/or a court reporter present. This was upheld by the Florida Supreme Court case U.S. Security Ins. Co. v. Cimino, 754 So. 2d 697 (Fla. 2000) where it was held that:...we are further convinced that any chilling effect on doctors is far outweighed by the positive effects of this decision. The Third District Trepal v. State of Florida, 754 So. 2d 702 (Fla. 2000) correctly noted "the potential for fraud at the confluence of the medical, legal and insurance industries is virtually unlimited." U.S. Security Ins. Co. v. Silva, 693 So. 2d 593, 596 (Fla. 3d DCA 1997). However, by allowing the examination to be observed by a third party or videotaped, the potential for harm to either party is reduced, not increased. As the Second District noted when discussing a rule examination in Wilkins v. Palumbo, 617 So. 2d at 852: There is nothing inherently good or bad about the credibility function of an IME. If there is no court reporter or other third party present at the examination, however, a disagreement can arise between the plaintiff and the doctor concerning the events at the IME. Plaintiffs' attorneys are understandably uncomfortable with a swearing contest at trial between an unsophisticated plaintiff and a highly trained professional with years of courtroom experience. They have searched for ways to level the playing field on the credibility issues arising from such examinations. The same considerations are applicable to a medical examination required by the insured to continue PIP benefits. The concerns of physicians for conducting examinations without the distraction of third persons cannot outweigh the insured's rights as the Fourth District noted in Bartell. Bartell, 498 So. 2d at As the court said in Gibson v. Gibson, 456 So. 2d 1320, 1321 (Fla. 4th DCA 1984), a case in which we held that the presence of a court reporter should have been allowed at a 15

16 psychiatric examination: "It is important to note also, that it is the privacy of the petitioner that is involved, not that of the examiner, and if the petitioner wants to be certain that this compelled, although admittedly reasonable, intrusion into her privacy be accurately preserved, then she should be so entitled." Bartell, 498 So. 2d at Cimino's rights must prevail over the concerns of the examining physician. Cimino, 754 So. 2d at 701, 702. In fact, this is specifically the case in a neuropsychological examination. In Freeman v. Latherow, 722 So.2d 885, (2 d DCA 1998), the court found a videographer could be present at the neuropsychological examination. The very argument tendered by Dr. Doe and the defense in this case, that the examination could be nonstandard, were rejected in the Latherow court as well. Obviously, in order for Plaintiff to determine whether the underlying facts or data are sufficient for the witness to give the opinion, counsel for Plaintiff must have the underlying facts or data. Without the facts, Plaintiff is unable to challenge the ultimate opinion or conclusion that the neuropsychologist is drawing from the test data. To claim that we must be limited to our experts reviewing the raw data defeats the very nature and spirit of discovery rules. Furthermore, it assumes A. Our expert actually owns the tests selected by the defense expert. There are hundreds of psychological/neuropsychological tests an expert can purchase and to require the Plaintiff s expert to purchase all tests selected by the defense, is unnecessarily burdensome. B. This precludes our ability for the plaintiff to confirm that, in fact, the answers and/or handwriting on the responses are actually hers. C. Lastly, defense seeks to require the Plaintiff to produce a copy of the transcript of the CME. There has been no caselaw cited to support this demand and, based on the claim of work product and right of privacy, the undersigned strenuously objects to its production. Courts are denying such motions in other areas. See exhibit #. In Hudmon v. Regal Insurance Co. No: 00-CA (Fla. 19 th Cir. Ct. April 12, 2002) ((order granting motion for rehearing on the production of the CME videotape of a doctor), wherein Judge Cynthia Angelos denied a similar motion on the part of the Defense on 4/2/02. The tapes constitute work product (Fla.R.Civ.P. 16

17 l.280) and to require production of such a tape under these circumstances would be similar to requiring the defense to produce a copy of any surveillance material prior to the Plaintiff s deposition. Since defense may maintain a claim of work product until the decision is made to use such tape in trial, the undersigned asserts the same privilege. This very issue has been ruled on in another case (Robinson v. Quarles & Fiberglass Services) involving Dr. Doe and the court, in that case the court specifically denied the requests (see exhibit # ) wherein Dr. Doe also, without permission of Plaintiff s counsel, tape recorded the Plaintiff. Furthermore, the defense argument that these tests cannot be disseminated because it could individuals how to "beat the test" must consider the fact that these are already available for purchase and, in fact, as indicated in Plaintiff s Exhibit #, Are Psychologist Hiding Evidence? By Paul Lees-Haley, he makes it clear that anyone can go to the Library of Congress and review the tests. Paul R Lees-Haley & John C. Courtney, Are Psychologists Hiding Evidence? A Need for Reform, Claims Magazine (2002). Moreover, numerous books are for sale to the general public including the MMPI, MMPI-II and MMPI-A for use in court by Dr. James Butcher which contains the entire test within the book and is available on Amazon.com. Therefore, this material is already available, and it is important this court determine whether or not. In the case of Krouse v. Enterprise Leasing Co., NO. GCG (Fla. 10 th Cir. Ct. 1996), The Defense neuropsychologist was retained by the defense to examine an 11- year- old child for brain injury. See exhibit During the examination, the child began to score poorly on one of the tests for brain injury. The doctor, after telling the child which answers she got wrong, to retest her. That is to say, after the child knew which answers she got wrong, the started the test over, and the child scored well. Krouse v. Enterprise Leasing Co., NO. GCG (Fla. 10 th Cir. Ct. 1996) This is type of nonstandard test administration must be documented for discovery and cross examination purposes and any complaint that the presence of a tape recorder makes test 17

18 administration nonstandard pales in comparison to the actual test administration technique utilized by underlying facts or data. The unique nature of neuropsychological testing is such that the examiner can control the results of the exam (i.e. someone is or is not brain damaged, someone is or is not depressed, etc.) by the very nature in which the examination is given. For example, someone may subtly suggest an answer as the question is given and the examinee will then score out as quite unimpaired. A more exhaustive list of the types of influence that a psychologist can have over the results is as follows: (and further discussed in the Dorothy C. Sims, Cross Examining the Psychiatric Expert, 3 Workers First Watch, 13, (2003)) A. Telling patient to erase answers. Some doctors erase a patient s answer or tell them to erase same. B. Incorrect scoring. Some doctors will score tests and testify that the patient scores out as not brain injured in concentration tests. However, the doctor input the wrong birth date, thus comparing the plaintiff to much older and more feeble individuals. When the correct birthday is input, the results indicate impaired cognition. C. False scoring. Some doctors simply add wrong. D. Using the wrong tests. Some doctors may testify that certain malingering scales reflect lack of motivation. Be careful. Often these tests, in fact, reveal concentration problems. E. Playing with cut off scores. Some doctors may testify that someone has flunked a malingering test. The test booklet in the doctor s office reveals, in fact, the patient may have passed. F. Giving too many tests. Some tests suggest several trials of a test should be administered. Some doctors administer only one, or, if the test results are hurtful to the side retaining them, they keep administering the same test 18

19 until the plaintiff does poorly and only report the poor scores, or, until they do better and report only the good scores. G. Giving clues. Some doctors will provide significant clues and then opine a good score means no brain damage. H. Test Interference: some doctors themselves may interfere with testing procedures and then claim poor scores reflect lack of effort. Example: talking on cell phone, using an attractive psychometrician in a form fitting, low cut dress to administer testing. Wherefore, the undersigned seeks an order directing the expert selected by the court to provide the plaintiff s attorney with a copy of any report based upon the data and observations made at the examination, along with a full and complete copy of all the raw data generated through testing at the examination. The undersigned will agree not to disseminate the raw data outside this lawsuit and will shred same at the conclusion of the case. Many judges have required the release of the raw data to the patient s attorney. See: Johnson v McPhee and The First American Corporation, Case No CA dated 5/23/08, Williams v Loomis Fargo & Co and Schwartzberg, Case No CA 5516 dated 11/20/06, Livingston v Southern Baptist Hospital, case no 2004 CA dated 7/28/06, Jenkens v Averbach et al, Case n0o CA 01, 4/4/03, Pabst v Meadvin, Case No ca 1545 dated 2/09/2010, Rose Meucci v Safelite Glass Corporation and Bright, Case No CA, 8/20/08, Heying v Buchert, Case No CA , 5/20/05, Karpicky v Aqua Beauty Queen, et al, Case No 13-C , Maryland circuit court, Howard county, 8/22/07, Richardson v Farnsworth Farms et al, Case No CA-0381, l0/11/06, Downs v Wiley, Huet and Geico General Insurance Comopany, Case No CI, 2/9/2004, Beekman v Besinger and Baker, Case No CA-K, 9/l6/05, Lee v Hasani V Kinzie and Boyd, Case No CI-8, 9/l4/07, Rodriguez v U.S. Parking Limited, Inc, Case No , 5/5/05, Zuleta v Puncost, CA75, 5/8/07 I hereby certify 19

20 20