Cases that involve alleged brain injury often turn on expert battles over the results of sophisticated neuropsychological testing. These tests—such as the Minnesota Multiphasic Personality Inventory, the Luria-Nebraska Neuropsychological battery, and the Weschler Adult Intelligence Scale—represent the culmination of decades of specialized research. And these tests can often provide key insights into the examinees’ cognitive abilities.
Like any test, these neuropsychological batteries can be gamed if the examinee has enough insight on how the test is administered. For instance, many of these tests contain internal control questions that are designed to gauge whether the examinee is malingering. If examinees could learn in advance to spot these control questions, an examinee might be able dodge an accusation they are exaggerating a particular cognitive deficit. Moreover, if plaintiff’s counsel could lay hands on testing materials, that plaintiff could be coached to answer a test’s questions in a way that will prompt a specific diagnosis.
This risk in mind, the American Psychological Association (APA) publishes guidance—in its Ethics Code—to psychologists that advises on test security and details when and to whom a practitioner can release test data and materials. Under this guidance, unless directed via the examinee’s informed consent, psychologists are to only release test data:
- to provide needed professional services;
- to obtain appropriate professional consultations;
- to protect the client/patient, psychologist, or others from harm; or
- to obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.
Your client or witness will take this obligation seriously. But what happens when test data is sought in litigation pursuant to a discovery request? The APA’s companion guidance to its Ethics Code simply notes that:
“[C]ourt precedents address disclosure requirements that vary by the setting, use or purpose of testing, and the party requesting disclosure. Court decisions have been largely case specific, relying on decisions based on the specific facts of a case, and usually balancing the rights of participants with the degree to which the protected information is considered necessary for resolution of legal issues.”
This guidance can be summed up with what may be the classic legal phrase: it depends. But rather than let a simple discovery dispute devolve into a drawn-out and expensive battle, parties can usually enter into stipulations that will satisfy the ethical standards to which your clients or witnesses hold themselves. For instance, if plaintiff’s counsel seeks testing data for the purpose of developing an expert opinion, that expert is likely a neuropsychologist that, just like your client or witness, is also subject to the APA’s Ethics Code. And if your client or witness knows this Ethics Code will govern your adversary witness’s conduct, you can likely facilitate the exchange of these materials directly from neuropsychologist to neuropsychologist—cutting out the lawyers—which may go a long way to mooting your client or witness’s concerns.