Judge Thomas Wallitsch (Ret.) recently issued an Order in the arbitration case of Bradigan v. Progressive in which he denied a Defendant’s Motion for Protective Order regarding an independent neuropsychological examination. Although this Order is not binding precedent, it is noteworthy on the issue presented.

In his Order, Judge Wallitsch stated that he found the Opinion of Judge R. Stanton Wettick, Jr., in the case of Rotunda v. Petruska to be persuasive.

Judge Wallitsch rejected an apparent argument by the defense that the testing, and therefore the results, of the neuropsychological examination may be altered by the presence of a third party in the room such as a representative of the Plaintiff’s attorney’s office. In his Order, Judge Wallitsch quoted Judge Wettick as stating, “the clear language of the rule allows only examinations that are possible when counsel is present. A trial court may not, in the exercise of its discretion, provide for an examination outside the presence of counsel. Through the promulgation of a rule permitting counsel to be present, the Pennsylvania Supreme Court has decided that the interest of the party to be examined in receiving the protection afforded by the presence of his or her counsel outweigh the interests of the parties seeking an examination that can only be conducted outside the presence of a third party.”

Although not cited, it appears that Judge Wallitsch (and Judge Wettick) were referring to Pa. R.C.P. 4010.

In his Order, Judge Wallitsch also confirmed that Plaintiff’s counsel had agreed, as per the rules, that there would be no audio or video recording of the neuropsychological evaluation.

Anyone desiring a copy of these decisions may contact me at dancummins@comcast.net.

I send thanks to Attorney Neil O’Donnell of the O’Donnell Law Offices in Kingston, PA for bringing these decisions to my attention.

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