Wayne, Jr. v. Kirk et al

Filing 137

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 2/9/2016: Plaintiff's Motion to Compel Expert Opinion Basis Materials 107 is granted in part and denied in part. [For further details see memorandum opinion and order]. Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACKIE WAYNE, JR.,
Plaintiff,
v.
OFFICER RALPH KIRK #21, OFFICER
FERNANDO MUNIZ #44, SGT. FABIANI
#6, OFFICER BILL COPP #37 and
VILLAGE OF STONE PARK, an Illinois
Municipal Corporation,
Defendants.

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No. 13 C 8540
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Jackie Wayne, Jr. has filed suit charging the Village of Stone Park and
four of its police officers with, among other things, false arrest and excessive force in
violation of 42 U.S.C. § 1983, malicious prosecution, battery, and intentional infliction of
emotional distress, all stemming from his arrest and a take-down to the ground on
February 24, 2013. Plaintiff alleges that the Defendants’ actions caused him to suffer
severe emotional distress, including post-traumatic stress disorder (“PTSD”), anxiety,
depression, paranoia and fear.

On May 21, 2015, Plaintiff underwent a Rule 35

examination by a psychiatrist and neuropsychologist retained by Defendants.

Now

before the Court is Plaintiff’s Motion to Compel Expert Opinion Basis Materials. (Doc.
107).

The expert physicians (“Respondents”) have retained their own counsel and

oppose the motion. They insist that legal, ethical and contractual obligations permit
them to disclose neuropsychological test materials and raw data only to a psychologist
designated by Plaintiff. Plaintiff insists that these materials should be produced directly

to his attorney. For the reasons set forth below, the motion is granted in part and
denied in part.
BACKGROUND
A.

Events on February 24, 20131
Just before 2:00 a.m. on February 24, 2013, Plaintiff and five friends were

leaving a bar when they were approached by two Stone Park police officers. One
officer pushed three of the men and shouted obscenities at them. They also called for
backup, resulting in the arrival of Defendant Officers Copp and Fabiani who had words
with Plaintiff, handcuffed him behind his back, and slammed him onto the hood of a car.
When he asked why he was handcuffed and what he had done wrong, Officers Copp
and Fabiani lifted him off the ground and dropped him on his face, fracturing his nose
and giving him a concussion. At the police station, Plaintiff refused medical attention
and refused to go through the booking process for several hours. After his release,
however, he went on his own to the emergency room for treatment. While Plaintiff was
charged that day with obstructing/resisting a peace officer and disturbing the peace, he
was found not guilty in July 2013. Approximately four months later, on November 26,
2013, he filed this civil lawsuit.
B.

Treatment and Diagnosis (November 2013 to January 2014)
After the incident in February 2013, Plaintiff missed a week of work but did not

seek any mental health treatment.

On November 1, 2013, however, he stopped

working completely, and four days later went to see an advanced practice nurse,
complaining of depression, panic attacks, anxiety and other symptoms. After screening
1

These facts are drawn from the district judge’s ruling on Defendants’ motion for
summary judgment, Wayne v. Kirk, No. 13 C 8540, 2015 WL 5950900 (N.D. Ill. Oct. 13, 2015),
so are either undisputed or are construed in the light most favorable to Plaintiff.
2

him, the nurse referred Plaintiff to clinical psychologist Dawn Niedner for counseling.
Plaintiff saw Dr. Niedner four times. At the first visit on November 12, 2013, Plaintiff told
her about the arrest and injury in February 2013 and the symptoms he had been
experiencing. Dr. Niedner diagnosed PTSD and recommended weekly psychotherapy
sessions. Plaintiff went to Dr. Niedner for therapy three times: on December 5, 2013,
January 2, 2014 and January 30, 2014. At one of these sessions, she administered two
tests, namely, Goldberg’s Self-Rating Depression Scale and the Hamilton Anxiety
Scale. She also completed paperwork for Plaintiff to apply for disability since he was
unable to return to work due to panic attacks and other symptoms.
Dr. Niedner referred Plaintiff to a psychiatrist, Dr. Jain, for a medication
evaluation. Dr. Jain saw Plaintiff on November 20, 2013, and again on December 27,
2013. In addition to prescribing medication, Dr. Jain diagnosed Plaintiff with PTSD and
depression not otherwise specified. Plaintiff did not seek any mental health therapy or
treatment after January 30, 2014. In March 2014, he began a new job.
C.

Plaintiff’s Rule 35 Exam
About a year later, on March 31, 2015, Defendants filed a motion for a Rule 35

mental examination of Plaintiff. (Doc. 56, 57, 61). Defendants had retained psychiatrist
Daniel Yohanna to provide an opinion as to Plaintiff’s mental health conditions and/or
injuries following the arrest, as well as his current mental health status (Plaintiff alleges
that he still experiences some symptoms). Dr. Yohanna’s opinion was to be based on
his review of certain records in the case, as well as an Independent Medical Evaluation
(“IME”) and neuropsychological testing. Dr. Yohanna made a referral to another doctor,
Joseph Fink, Ph.D., to conduct the neuropsychological testing. As a neuropsychologist,

3

Dr. Fink has special training in administering and interpreting these tests that Dr.
Yohanna does not.
Over objection, the Court granted the motion for the Rule 35 examination, though
it required Dr. Yohanna and Dr. Fink to conduct a joint clinical interview of Plaintiff rather
than separate interviews. (Doc. 72). The evaluation was done on May 21, 2015. After
Plaintiff completed the University of Chicago Neuropsychological History Questionnaire
and responded to questions during the joint clinical interview, Dr. Fink and his
Neuropsychology Technician administered 14 neuropsychological tests. (Doc. 107-1, at
2). Based on the results, Dr. Fink concluded (in part) that certain areas of cognitive
functioning that are commonly impaired in persons with “significant psychological
complaints were areas of strength for [Plaintiff]. Nonetheless, the symptoms endorsed
across self-report measures suggest that [Plaintiff] is currently experiencing some
residual psychological distress that he associates with the traumatic event of his
February 2013 arrest.” (Fink Report, at 2388). Dr. Fink further stated: “In light of the
overall clinical picture, these symptoms are consistent with a subsyndromal
manifestation of PTSD.” (Id.).2 Dr. Fink described the test results and his findings in a
Neuropsychological Consultation report that was provided to Dr. Yohanna and later
produced to Plaintiff.

Dr. Fink noted that Dr. Yohanna was “submitting a separate

comprehensive psychiatric report, to include a review of collateral records.”

(Id. at

2380).

2

“Subsyndromal” is defined in the Merriam-Webster online dictionary as “characterized by
or exhibiting symptoms that are not severe enough for diagnosis as a clinically recognized
syndrome.” (http://www.merriam-webster.com/medical/subsyndromal) (last visited Jan. 25,
2016).
4

Dr. Yohanna, the Defendants’ designated Rule 26(a)(2)(B) expert, observed in
his own report that it is “customary to complete neuropsychological testing during an
IME to assist in forming opinions about the patient’s general cognitive abilities and
personality[,]” and that he reasonably relied on the tests and Dr. Fink’s interpretation of
them.

(Yohanna Report, at 2219).

He also noted that “for completeness” he had

included the test results, as well as his opinion “formed from those test results” in his
report.

(Id.).

While Dr. Yohanna’s report incorporates the entirety of Dr. Fink’s

description of the neuropsychological tests and results, it also contains a summary and
analysis of other materials. Specifically, the report identifies 21 sources of information
with only the last being the IME and Neuropsychological Testing. The other sources
include such things as police reports, medical records (before and after the arrest),
deposition transcripts, employment records, and disability insurance records. (Id. at
2218-19).
Dr. Yohanna concluded from his consideration of the sources of information that
Plaintiff was “malingering symptoms of PTSD, depression, and anxiety for secondary
gain” and did not suffer any of these symptoms on February 24, 2013 or afterwards.
(Id. at 2246). He noted in this regard that while Plaintiff “met criteria for PTSD in the
subjective examinations during the IME, testing and in the initial visit with his therapist
Dr. Niedner and psychiatrist as outlined in the DSM-IV, . . . there is significant evidence
that . . . the timing and collateral information does not substantiate the typical and
common presentation of PTSD.” (Id. at 2242). In this regard, Dr. Yohanna observed
that Plaintiff did not seek treatment for his alleged symptoms until “some 9 months after
the incident and not until he met with attorneys to file a lawsuit....” (Id.). Dr. Yohanna

5

also described eighteen “discrepancies in [Plaintiff’s] history” that he relied on in forming
his opinion that Plaintiff was malingering. (Id. at 2242-45).3
D.

Document Requests and Objections
Plaintiff served document requests seeking the following materials related to the

Rule 35 examination:
Dr. Yohanna’s and Dr. Fink’s entire files related to this matter including,
but not limited to, written or computer generated reports, narratives, test
stimuli, interview notes, subject responses, psychological tests
administered, neuropsychological tests administered, psychiatric tests
administered, test manuals, raw data and/or scaled scores of all testing
administered, letters, memos, notes, final and drafts of same, where said
documents were not identified in Dr. Yohanna’s or Dr. Fink’s expert
reports.
(Doc. 107-1, at 9, 13).

Plaintiff already has received the reports and certain other

materials. At issue is the request for copies of the neuropsychological test materials
and the raw data from those tests. The raw data is solely in the possession of Dr. Fink
since Dr. Yohanna never received or reviewed that data.
Defendants have not produced these materials because Respondents will only
provide them to another psychologist who is designated by Plaintiff. They assert that
producing the materials directly to Plaintiff or his attorney would violate their ethical,
legal and contractual obligations. (Id. at 43, Email from E. Schnidt to P. Provenzale of
9/25/15). Consistent with this position, Respondents have provided an original and
amended privilege log identifying the withheld documents, and they are the only ones

3

For example, Dr. Yohanna noted that Plaintiff returned to his job one week after the
arrest and worked without incident until he abruptly stopped working on November 1, 2013;
there was no record that his work performance suffered and Plaintiff’s supervisor who had
known him for several years did not notice any changes in his behavior. (Yohanna Report, at
2242-43).
6

formally objecting to Plaintiff’s motion to compel. (Docs. 116, 123, 133). Respondents
have also provided affidavits and other materials in support of their position.
Respondents’ claimed legal obligations are found in an Illinois statute that
provides: “Psychological material whose disclosure would compromise the objectivity or
fairness of the testing process may not be disclosed to anyone including the subject of
the test and is not subject to disclosure in any administrative, judicial or legislative
proceeding.”

740 ILCS 110/3(c).

The provision goes on to state: “However any

recipient who has been the subject of the psychological test shall have the right to have
all records relating to that test disclosed to any psychologist designated by the
recipient.” Id. (emphasis added).
Respondents explain that their ethical obligations stem from the American
Psychological Association Ethical Principles of Psychologists and Code of Conduct
(“APA Code of Conduct”), and the American Psychiatric Association, The Principles of
Medical Ethics. The APA Code of Conduct limits a doctor’s ability to disclose two types
of psychological information: “test data” and “test materials.” Plaintiff’s answers to test
questions and his raw and scaled scores constitute test data; the “manuals,
instruments, protocols, and test questions or stimuli” used to interpret those answers
and scores constitute test materials. (Doc. 116-1, at 13-14, APA Code Standards 9.04,
9.11). With an appropriate release from Plaintiff, the Code would allow Respondents to
disclose Plaintiff’s test data directly to him and his designees. (Id. at 13). Without a
release, Respondents could disclose test data “only as required by law or court order.”
(Id. at 14).

7

When it comes to test materials, on the other hand, the Code instructs that
Respondents should “make reasonable efforts to maintain the integrity and security of
test materials and other assessment techniques consistent with law and contractual
obligations, and in a manner that permits adherence to this Ethics Code.” (Id. at 14).4
As noted later, in some cases, the line between test data and test materials may blur, as
revealing the answers to certain test questions may also disclose the underlying
questions.
Respondents finally cite their contractual obligations to safeguard the materials in
question.

They note that the tests “were scored using the scoring methods and

materials provided by the publisher of the respective tests,” and the “standardized test
materials are copyright-protected.” (Doc. 116, at 5, 7). Respondents stress that these
are not tests Plaintiff’s counsel could purchase, and some are not even available to
health care professionals if they lack the necessary “qualification levels.” (Id.).
E.

November 6, 2015 Hearing
During a hearing on November 6, 2015, this Court sought to understand why

Plaintiff’s counsel was seeking direct access to the neuropsychological test materials
and raw data, and what he would do with such materials given his lack of professional
training. The Court also inquired as to whether Plaintiff intended to provide the test
materials to his treating psychologists or to a retained psychologist who could explain
them and help to rebut Dr. Yohanna’s opinion that Plaintiff was malingering. If so, all of
the test data and test materials could be produced directly to Plaintiff’s designated

4

The American Psychiatric Association’s “Principles of Medical Ethics” contains less
specific language, requiring psychiatrists to “respect the rights of patients, colleagues, and other
health professionals, and [to] safeguard patient confidences and privacy within the constraints of
the law.” (Doc. 116-1, at 26).
8

psychologist with a protective order, thereby resolving the ethical, legal and contractual
concerns raised by Respondents.
What the Court learned, however, is that Plaintiff’s counsel wanted to personally
review the raw test data and testing materials before deciding whether it was necessary
to send them for review by a treating or retained psychologist. Plaintiff’s counsel said it
was difficult to say whether the materials at issue would be helpful without first seeing
them. He argued, however, that it was important to review them because Dr. Fink
concluded from the neuropsychological testing that Plaintiff’s symptoms were consistent
with a subsyndromal manifestation of PTSD, while Dr. Yohanna--who relied on Dr.
Fink’s interpretation of the tests without viewing the raw data--nonetheless opined that
Plaintiff was malingering symptoms of PTSD.
F.

Opportunity to Review Materials
In light of the somewhat unusual circumstances presented here, the Court

allowed Plaintiff’s counsel to personally review on an “Attorney’s Eyes Only” basis (but
not copy) the neuropsychological tests and raw data. He was then to inform the Court
as to whether he would withdraw his request for any of the testing materials as
unnecessary, and whether he had decided to retain an expert to whom any remaining
materials could be directly provided. (Doc. 127). Plaintiff’s counsel spent approximately
five hours over multiple days reviewing the neuropsychological testing materials. While
counsel was unhappy that he was instructed not to make “verbatim” notes and that
someone remained in the room during his review, he made good use of the time,
identifying documents that were not needed as well as areas of inquiry for the experts.

9

In a supplemental pleading, Plaintiff explained that he no longer sought copies of nine of
the items on the privilege log but continued to seek copies of the following materials:
1.
2.
3.
4.
5.
6.
7.
8.

Raw Data Sheet
Personality Assessment Inventory (PAI) Clinical Interpretive Report
Neuropsychological History Questionnaire
Minnesota Multiphasic Personality Inventory-2nd Edition (MMPI-2)
Extended Score Report and Test Manuals
Trauma-Symptom Inventory-2 (TSI-2) Answer Sheet and Profile
Form
Detailed Assessment of Post-Traumatic Stress-2 (DAPS) Item
Booklet, Answer Sheet and Scoring Sheet
Beck Anxiety Inventory
Beck Depression Inventory-II

(Doc. 134, at 13-14).5
During oral argument on December 23, 2015, Plaintiff’s counsel stated (in part)
that he still had not retained a psychologist as a consultant because he did not need
one. He indicated that he would decide after seeing how Dr. Yohanna and Dr. Fink
answered questions at their depositions whether to request the treating or a retained
psychologist to review the testing materials and raw data and offer rebuttal opinions.
Counsel also acknowledged that there is a possibility that Plaintiff will undergo future
psychological testing in this case. Counsel volunteered, however, that he would not
show or discuss any test materials with his client, and said it was doubtful the same
tests would be administered in any event.

5

Plaintiff withdrew his request for Green’s Word Memory Test; Test of Memory
Malingering; Trail Making Test (A&B); RBANS; WAIS-IV Administrative & Scoring Manual;
WAIS-IV Record Form; WAIS-IV Response Booklet; WRAT 4 Green Sentence Comprehension
Test Form and Word Reasoning Green Test Form; and Mini-Mental Status Exam. (Doc. 134, at
5).
10

DISCUSSION
A.

Protection of Test Materials
The privilege at issue here flows from a provision in the Illinois Mental Health and

Developmental Disabilities Confidentiality Act (the “Illinois Act” or “Act”). This Act is
referenced in the parties’ “Qualified HIPAA and Confidential Matter Protective Order”
entered on May 21, 2014. (Doc. 26). In fact, Plaintiff relied on other provisions of the
Act as the basis for a motion to quash subpoenas to Plaintiff’s treating mental health
providers, (Doc. 27, at 2-3), and a motion to require in camera review of the mental
health records from those physicians prior to Defendants receiving them. (Doc. 30).
The provision of the Act invoked by Respondents states:
Psychological material whose disclosure would compromise the objectivity
or fairness of the testing process may not be disclosed to anyone
including the subject of the test and is not subject to disclosure in any
administrative, judicial or legislative proceeding. However, any recipient
who has been the subject of the psychological test shall have the right to
have all records relating to that test disclosed to any psychologist
designated by the recipient.
740 ILCS 110/3(c). As licensed Illinois mental health professionals, Respondents are
each obligated to comply with the Act.
While Plaintiff is correct that state evidentiary privileges do not apply in federal
cases before the court based on federal-question jurisdiction, Mayer v. Village of South
Holland, No. 07 C 5408, 2008 WL 4679483, at *2 (N.D. Ill. May 8, 2008), “comity
between state and federal governments ‘impels federal courts to recognize state
privileges where this can be accomplished at no substantial cost to federal substantive
and procedural policy.’” Scott v. City of Peoria, 280 F.R.D. 419, 422 (C.D. Ill. 2011)

11

(quoting Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir.
1981)).
There appears to be good reason for offering special protection to the
psychological materials described in the Act. According to the Official Statement of the
National Academy of Neuropsychology, “a major practice activity of neuropsychologists
is the evaluation of behavior with neuropsychological test procedures[,] and many tests .
. . depend to varying degrees on a lack of familiarity with the test items.” (Doc. 116-1, at
87). As a result, “a likely and foreseeable consequence of uncontrolled test release [to
non-psychologists] is widespread circulation, leading to the opportunity to determine
answers in advance, and to manipulate test performances.”

(Id.).

The Official

Statement not only warns that “threats to test security” from release to nonpsychologists are “significant” but cites research confirming that “individuals who gain
access to test content can and do manipulate tests and coach others to manipulate
results, and they are also more likely to circumvent methods for detecting test
manipulation.” (Id. at 86) (citing Coleman, Rapport, Millis, Ricker and Farchione, 1998;
Wetter and Corrigan, 1995; Youngjohn, 1995; Youngjohn, Lees-Haley & Binder, 1999).
In addition, the Official Statement notes that if these tests were to become invalid
through public exposure, the development of new tests would be time consuming and
quite costly, and test developers and publishers would have a disincentive to invest in
them if the life span of the tests were limited. (Id.).
To protect these standardized tests, the American Psychological Association
imposes certain ethical rules on its members. Psychologists are only permitted under
the APA Code of Conduct to disclose “test data” directly to a patient and his designees

12

with a release (and to others “as required by law or court order”). (Id. at 13-14, APA
Code Standard 9.04). Disclosure of test materials is more restrictive. Psychologists
must “make reasonable efforts to maintain the integrity and security of test materials
and other assessment techniques consistent with law and contractual obligations....”
(Id. at 14, APA Code Standard 9.11). At times, “test data and test materials overlap”
such that the release of test data effectively releases the test materials. (Id. at 85,
Official Statement). This occurs because, for example, test materials might easily be
inferred from test data. (Id.). As a result, “even if requirements are met under 9.04,
such test release may still conflict with the procedures or principles articulated in 9.11.”
(Id.).
Not surprisingly, the creators of psychological test materials impose contractual
obligations on purchasers to avoid disclosure of their tests, and take other measures to
restrict access and maintain confidentiality. For example, they place warnings on the
test materials that the tests are confidential, protected by copyright, and not to be
reproduced in whole or in part without written permission. (See PAI Clinical Interpretive
Report, at 1).6 Some tests are not even available for purchase unless one has the
requisite minimum qualifications.
Sales of the MMPI-2 test materials, for instance, are restricted by its distributor,
Pearson, to those who have Qualification level “C,” so neither Plaintiff nor his attorney
could purchase the test materials.7 Pearson cautions that secured tests like the MMPI-

6

Plaintiff’s own therapist, Dr. Niedner, testified at her deposition that she would not be
permitted to “xerox” one of the tests at issue here, the Beck Depression Inventory, because it is
“copyrighted.” (Doc. 68-1, at 68-69, Niedner Dep., at 185-86).
7
Tests with a C qualification “require a high level of expertise in test interpretation, and
can be purchased by individuals with: A doctorate degree in psychology, education, or closely
related field with formal training in the ethical administration, scoring, and interpretation of
13

2 are trade secrets, and the confidentiality of test questions, responses, and scores are
“paramount to maintaining the integrity, reliability, and validity of [the] tests.”8 It also
warns that “[u]nlike many other types of tests, our Qualification B and C level tests do
not consist of a large collection of test items that are rotated. Rather, these tests have
one expensive and highly researched version and should remain intact for 10 to 15
years. Millions of dollars have been spent on the research and ‘norming’ (compiling of
statistical data regarding results) of the tests. Any leakage of test items will severely
compromise the value and usefulness of the tests.” See, e.g., Ruston v. Department of
Justice, 521 F. Supp. 2d 18, 21 (D.D.C. 2007) (court finds psychological assessment
materials, including MMPI-2, were exempt from disclosure under FOIA based on test
publishers’ declarations concerning the extensive research costs, risks from public
disclosure, and efforts taken to protect the test materials).
According to Dr. Fink’s affidavit, the validity of the tests that he administered to
Plaintiff “depends upon the test subject’s unfamiliarity with the tests and inability to
prepare for the tests in advance.” (Doc. 116-1, at 71 ¶ 6). Moreover, certain of the
answers and responses (the test data) are “contained on the test materials and not
separate from them.”

(Id. ¶ 7).

Dr. Fink further stated that, as a licensed clinical

psychologist in Illinois, he is subject to discipline for violating the APA ethical rules since
the rules are considered by state regulators in determining whether a psychologist has
clinical assessments related to the intended use of the assessment. OR Licensure or
certification to practice in your state in a field related to the purchase. OR Certification by or full
active membership in a professional organization...that requires training and experience in the
relevant area of assessment.” (Doc. 116-2, at 32).
8
The language referenced here and in the remainder of the paragraph is from the MMPI-2
test materials as summarized on the record by Respondents’ counsel during the December 23,
2015 hearing.
Similar language appears on Pearson’s website.
(See
http://www.pearsonclinical.com/psychology/legal.html#trade, under “Trade Secrets” and “Ethical
Issues”) (last visited Feb. 8, 2016).
14

engaged in unethical or unprofessional conduct. (Id. ¶ 9) (citing the Illinois Clinical
Psychologist Licensing Act, 225 ILCS 15/15(7)).
While ethical and disciplinary rules do not create a privilege, the Federal Rules of
Civil Procedure allow courts to issue protective orders or quash third-party subpoenas
where a document request would cause a person undue burden.

FED. R. CIV. P.

26(c)(1), 45(d)(3)(A)(iii). See also Walton v. North Carolina Dep’t of Ag. and Consumer
Servs., No. 5:09-CV-302-FL, 2011 WL 2893622, at *2 (E.D.N.C. July 15, 2011) (relying
on Rules 26(c) and 45(d) to deny motion to compel psychological testing materials).
B.

Balancing Against Plaintiff’s Need for Test Materials and Raw Data
Plaintiff asserts that he is entitled to the neuropsychological test materials and

raw data under Federal Rule of Civil Procedure 26(a)(2)(B) since the materials are
“foundational” for Dr. Yohanna’s opinions. (Doc. 118, at 4). He contends that “there is
nothing about the questions or the data reported in the tests that requires a psychologist
to interpret, and nothing about disclosing those materials in discovery under the existing
or a modified protective order [that] will in any way compromise the objectivity or
fairness of these tests.” (Doc. 134, at 12).

Plaintiff proposes that these materials

therefore be provided directly to counsel under the existing Protective Order, though he
is amenable to unspecified modifications “if the Defendants or Respondents feel
additions to the order may be required.”

(Id. at 13).

Respondents argue that the

Protective Order should instead state that these testing materials are to be produced
only to another psychologist designated by Plaintiff and may not be provided to Plaintiff
or his counsel.

15

As the Court observed in Taylor v. Erna, Civil A. No. 08-10534-DPW, 2009 WL
2425839 (D. Mass. Aug. 3, 2009), “the most common resolution for this type of dispute
has been some compromise between full, unconditioned disclosure and total exemption
from the Federal Rules of Civil Procedure.” Id. at *2. Some courts have held that
testing materials should be produced but only to opposing counsel’s expert
psychologist.

In Collins v. TIAA-CREF, No. 3:06-CV-304-C, 2008 WL 3981462

(W.D.N.C. Aug. 22, 2008), for example, the court quashed a subpoena seeking to have
the defendants’ psychologist produce test materials and raw data to a clinical social
worker, explaining that it “place[d] an undue burden on [the psychologist] in asking him
to violate both his ethical and contractual obligations.” Id. at *3, 5. Instead, the court
gave the plaintiff the option of having the doctor “produce the requested materials to a
licensed psychologist . . . to avoid the very serious consequence of the validity of these
important tests being compromised.” Id. at *5. See also Whitney v. Franklin Gen.
Hosp., No. C13-3048, 2014 WL 7339213, at *4 (N.D. Iowa Dec. 23, 2014) (ordering
production of raw test data “to Defendants’ expert . . ., a licensed psychologist.”). When
materials are not restricted in this way, it is common for courts to issue protective orders
that protect the test materials in other ways.

The decisions do not always clearly

delineate, however, what the provisions of the protective orders are.
In arguing for copies of all the testing materials, Plaintiff relies heavily on Mayer
v. Village of South Holland, the only case addressing psychologists’ disclosure
obligations under the Illinois Act. There the plaintiff alleged that she was denied a
position as a firefighter-paramedic because of her sex, but the defendant claimed the
reason was her failure to successfully complete a psychological test.

16

After the

defendant produced a report from licensed psychologist Roger Hughes, Psy.D. (not
designated as an expert witness by either party) that purported to summarize the test
results, the plaintiff issued a subpoena seeking the supporting documents, “including
raw test data, test protocols, score sheets, notes, reports, . . . rough drafts, [and]
letters.” Id.
Relying on the Illinois Act, Dr. Hughes said he could only produce the requested
documents to a licensed psychologist. Id. In rejecting this argument, the court first
noted that neither side had provided “sufficient information to determine whether the test
given by Hughes was a psychological test” within the meaning of the Act. As the court
explained, “for Hughes’s test of plaintiff to qualify as a psychological test, the test should
have been for purposes of a mental health examination, diagnosis, evaluation,
treatment, or training.” Id. at 2. Lacking a sufficient description of the test performed,
the court declined to find that Dr. Hughes had met his burden of showing that the test
materials fell within the meaning of the statute. Id. at *3. In addition, the court held that
any concerns about compromising the testing process could be addressed with a
protective order that “limits who will see the materials and prevents those persons from
further disclosure.” Id. The court did not provide any further guidance as to the content
of the protective order, and it remains unclear who was to be permitted to see the
psychological test materials. The docket sheet reflects that the parties never pursued a
protective order, and the case was dismissed with prejudice a few months after the
opinion was issued. In other words, this Court cannot determine from the decision
whether the protective order would have allowed the plaintiff or his attorney to receive
copies of all psychological testing materials.

17

Even if the Mayer court had so found, the case is distinguishable from this one
for several reasons.

First, unlike the psychologist in Mayer, Respondents have

specifically identified the test materials at issue here. In addition, there is no question
that those tests were administered to examine and diagnose Plaintiff’s mental health, so
Dr. Yohanna could opine as to whether Plaintiff has (or had) PTSD and depression and,
if so, the causes. Moreover, the Mayer court was not asked to consider the potential
impact of the APA Code of Conduct. Even more importantly, unlike the case at hand,
the plaintiff in Mayer was not considering the possibility of undergoing future
psychological testing, and the plaintiff’s counsel was not allowed to review (without
copying) all of the psychological test materials. For these reasons, this Court does not
find Mayer instructive here.
Plaintiff also relies on a Colorado case, Frazier v. Board of County Comm’rs of
County of Arapahoe, Civ. A. No. 08-CV-2730-WYD-BNB, 2010 WL 447785 (D. Colo.
Feb. 3, 2010), but this case too is distinguishable.

The defendant in Frazier

subpoenaed the plaintiffs’ expert psychologist for “all documents relating to testing and
test results,” and the psychologist moved to quash based on her obligations under the
APA Code of Conduct, as well as contractual concerns about disclosing trade secrets.
Id. at *3. In denying the motion, the court cited Section 9.04(b) of the Code of Conduct,
which allows for the disclosure of test data “as required by law or court order,” id. at *4,
but made no mention of test materials under Section 9.11 or the heightened concerns
associated with that information. The court also relied on Taylor v. Erna, 2009 WL
2425839, without acknowledging that the plaintiffs in that case were ordered to produce
testing materials to the defendants not only pursuant to a protective order but also

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“through an expert.” Id. at *3.9 For all of these reasons, this Court does not find the
holding in Frazier persuasive here.
Based on the circumstances presented in this case, the Court finds that an
appropriate Protective Order is one that allows Plaintiff to receive (through counsel)
copies of the first three items that he seeks: the Raw Data Sheet, the Personality
Assessment Inventory (PAI) Clinical Interpretive Report, and the Neuropsychological
History Questionnaire (“NHQ”). As for the remaining test materials that Plaintiff seeks,
these must also be disclosed but the Protective Order will allow Plaintiff (through
counsel) to review the documents but not receive copies. In addition, these documents
must be available to Plaintiff’s counsel to use during the depositions of Dr. Yohanna and
Dr. Fink.
Production of a copy of the NHQ is appropriate since this is merely a
questionnaire completed by Plaintiff and not a neuropsychological test. For this reason,
Respondents withdrew their objection to producing it. As for the Raw Data Sheet, while
Respondents maintained their objection, the Court is not persuaded that disclosure of
this document would compromise the objectivity or fairness of the testing process. As
Plaintiff notes, this sheet is an internal form of the University of Chicago Medical Clinic
that is used to report the raw and/or scaled scores for a variety of psychological tests
referenced (by initials) on the form. For any test that was performed, the score is filled
in on the blank space provided, though Plaintiff’s counsel noted that the form completed

9

In the other case the court cited, Schmitt v. Beverly Health and Rehabilitation Servs.,
Inc., No. Civ. A. 96-2537-EEO, 1997 WL 728133 (D. Kan. Nov. 19, 1997), the plaintiff’s retained
expert voluntarily agreed to produce “raw data” and “actual data” pursuant to a protective order
without a discussion of test materials. Id. at *4.
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for Plaintiff has three tests that are added in handwriting with no scores noted. This
form must be produced.
Respondents must also produce a copy of the PAI Clinical Interpretive Report.
The PAI is a self-report questionnaire consisting of 344 items designed to assess adult
psychopathology.

The PAI Clinical Interpretive Report (“CIR”) is “the result of a

computerized software portfolio associated with the test that scores the PAI and
generates a clinical interpretive report based on diagnostic algorithms.” (Doc. 134, at
7). Plaintiff provided a lengthy and specific explanation for why he needs a copy of the
CIR, namely, to explore the reasons that certain narrative sections of the CIR were
included in the reports of Dr. Fink and Dr. Yohanna while other sections were omitted,
and why certain scores from the Supplemental PAI Indexes were not discussed. (Id. at
7-9). In addition, Plaintiff provided the Court with an internet address where a sample
CIR is publicly available. (See www.hogrefe.no/Global/Exempelrapporter/PAI Clinical
Interpretive Report.pdf) (last visited Jan. 14, 2016). Based on the Court’s in camera
review, several portions of the CIR that was withheld in this case are identical to the
sample CIR found on the internet. Given the availability of the sample on the internet
and the fact that the CIR consists mainly of test data (not test materials), Respondents
must produce it. They may redact, however, those portions of the CIR that are redacted
on the sample CIR posted on the internet (where the sample states “Item text was
removed from this report for sample purposes.”).

The unredacted CIR must be

available at the depositions of Dr. Yohanna and Dr. Fink. Finally, the Protective Order
will require the Raw Data Sheet and PAI to be treated as Attorneys’ Eyes Only since

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Plaintiff has not yet decided whether he will undergo future psychological testing in this
case.
Plaintiff’s motion to compel copies of the remaining testing materials is denied.
These materials are: the PAI Software Module Item and Response Booklet; the
Minnesota Multiphasic Personality Inventory-2nd Edition (MMPI-2) Extended Score
Report and Test Manuals; the Trauma-Symptom Inventory-2 (TSI-2) Answer Sheet and
Profile Form; the Detailed Assessment of Post-Traumatic Stress-2 (DAPS) Item
Booklet, Answer Sheet and Scoring Sheet; the Beck Anxiety Inventory; and the Beck
Depression Inventory-II. While it certainly would be much more convenient for Plaintiff’s
counsel to have his own copies of these testing materials, the Court is satisfied that
there is ample justification for a Protective Order that allows disclosure of these
materials to occur through counsel’s review of the materials along with their availability
to counsel at the depositions.
As Respondents note in seeking a Protective Order with the even greater
restrictions imposed under the Illinois Act, the “continued objectivity, fairness, and
integrity of the battery of tests used by neuropsychologists depends on those tests
remaining confidential outside the psychology profession.” (Doc. 116, at 6). This Court
agrees that these tests are important tools in mental health evaluations and that public
disclosure of the tests “would invite coaching of future test takers and manipulation of
test performances and would invalidate the tests.”

(Id.).

Here, Plaintiff has not

foreclosed the possibility that he will undergo future psychological testing in this
litigation.

In addition, with the availability of the internet and the ease of posting

documents on it, the danger of widespread dissemination of psychological test materials

21

is very real. Requiring complete copies of neuropsychological tests to be made and
produced directly to a party (or their counsel) in every case in which a claim of severe
emotional distress or PTSD is made would, in this Court’s view, unnecessarily increase
the risk that these valuable tests would be rendered invalid and useless.
The Court also finds that the limitations imposed by the Protective Order
described in this opinion will not deprive Plaintiff’s counsel of the discovery necessary to
effectively prepare for the expert depositions. First, Dr. Yohanna’s report described
twenty-one sources of information for his opinions, and the IME and neuropsychological
testing was only one of the sources. Second, with regard to that one source, Plaintiff’s
counsel is being given copies of key documents, namely, the reports of both experts,
the Neuropsychological Evaluation Notes from the joint clinical interview, Dr. Yohanna’s
separate handwritten notes, the NHQ, the PAI Clinical Interpretive Report, and the Raw
Data Sheet.

Third, counsel has been permitted to examine all of the withheld

psychological test materials and may do so again if necessary. This review has allowed
Plaintiff’s counsel to identify areas of cross-examination as described in detail in the
supplemental pleading. Fourth, the Protective Order will allow counsel access to the
withheld test materials during the depositions of Dr. Yohanna and Dr. Fink. 10 Lastly, the
Protective Order will require Respondents to produce the withheld testing materials to a
psychologist designated by Plaintiff in the event that he eventually elects to retain one

10

Under the Protective Order, the deposition testimony will initially be treated as
“Attorneys’ Eyes Only” to allow Respondents an opportunity to review the transcripts and
designate any portions discussing the test materials and raw data as “Attorneys’ Eyes Only.” Of
course, Plaintiff may challenge the designation in which event the Court will review the
testimony and determine what restrictions are appropriate. The Protective Order will also
provide that the psychological materials that are disclosed in any manner are to be used only for
purposes of this lawsuit, are to be filed under seal (assuming there is a need to file them at all),
are not to be copied, and are to be returned to Respondents at the conclusion of the case.
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given his claim of PTSD with some ongoing symptoms. In sum, Plaintiff is not being
denied the discovery that he seeks, but certain limitations are appropriate given the
special nature of the materials that are sought.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion to Compel Expert Opinion Basis
Materials (Doc. 107) is granted in part and denied in part.

ENTER:

Dated: February 9, 2016

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

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