Partner Kyle Bjornlund submitted an amicus brief on behalf of the Massachusetts Defense Lawyers Association (“MassDLA”) in a negligence action before the Supreme Judicial Court, arguing that Massachusetts Rule of Civil Procedure 35 should be interpreted to include psychologists under the definition of “physician.”
The case, Ashe, et al. v. Shawmut Woodworking & Supply, Inc., et al., arose out of a scaffolding accident at a construction site, with the question before the Court being whether the trial judge properly allowed a discovery motion for an examination of the victim by a neuropsychologist who was not a “physician” under Rule 35. As to exclude psychologists from the definition of “physician” would undermine the speedy, fair, and transparent discovery process, the MassDLA sought to be heard on this issue. The brief argued that the definition of “physician,” or those who a trial judge may order a Plaintiff to submit to a physical or mental examination, include psychologists, as 1) psychologists are highly trained, engaged in health services, and are thoroughly qualified to perform an examination consistent with Rule 35; and 2) the vast majority of jurisdictions, including the Federal Rules of Civil Procedure, affirmatively allow for psychologists to conduct Rule 35 examinations. Indeed, Massachusetts remains just one of six states that has yet to amend their Rule 35 to affirmatively allow for psychologists to conduct such examinations.
The Court’s opinion, rendered on April 15, 2022, held that the trial judge did not abuse her discretion in allowing the Defendant’s motion for an order requiring the plaintiffs’ conservatee to submit to an examination by a neuropsychologist. Importantly, the Court agreed with the arguments set forth in the brief and held that a neuropsychologist falls within the definition of “physician” under Mass Rule of Civil Procedure 35.
A copy of MassDLA’s amicus brief in Ashe can be found here.