Male: SJC13152, Carol Ashe and another v.
AM PM Safety LLC and others.
-: Okay. Attorney Kazarosian.
-: [Attorney Kazarosian] Excuse me. Good morning,
Chief Justice Budd, and associate justices.
May it please the court.
My name is Marcia Kazarosian, and I represent the appellants
who are the co-conservators of Thomas Ashe,
the injured party in this matter.
Your Honor, as the main thrust of this appeal,
it really boils down to whether or not a trial court has
the discretion, if a trial court judge has the discretion
to amend or change a rule of civil procedure,
when that's within the purview only of
the Supreme judicial court,
particularly when the word that's used therein
doesn't have any ambiguity on its face.
Justice Gaziano: I know you're gonna get there,
but let's cut to the chase.
How do you distinguish the PIP case, Ortiz?
-: Well, I would distinguish that your honor
for a number of reasons,
but primarily in the PIP case, the court in Ortiz,
first of all, the court using the rules of construction,
determined that there was an ambiguity,
the statutory construction, determined
there was an ambiguity in the language
in the PIP section of the no fault statute.
And it went to the no fault statute and looked at the
historic background of that statute and determined what the
goals were. And the goals were-
-: I thought on, and this is helpful for me,
so forgive me for interrupting you.
But I thought what justice Botsford wrote in Ortiz was that
the word physician wasn't defined further.
So what's going to look to see, see this.
-: Yes, and what they determined-
-: Just like in rule 35
-: Yes and no, your honor.
I would, I do agree it's undefined in both places,
but I would argue that the fact that it's undefined doesn't
necessarily result in an ambiguity. It didn't, it did,
Ortiz determined it did relative to the PIP section because
the PIP, the goal of PIP is to get fast,
speedy payments to an injured person, regardless of fault,
without litigation. It's a very separate and distinct thing.
And one of the issues is you've got to have dentist bills
that are being presented.
You're going to have physical therapy bills that are being
presented,
and those bills need to be paid up to a maximum of 6 or
$8,000, and they got to be done quickly.
And there's no litigation involved.
There is no fault involved.
So what they determined was that if you maintained that
strict, plain and ordinary meaning of the word physician,
it was going to contravene the goal of PIP and no fault.
And in doing that, they properly, I would argue expanded-
-: That wasn't in Ortiz, right?
I mean, that's very, that's a thoughtful response,
but we didn't say that in Ortiz did we?
-: Well, the Ortiz core basically had looked at
what the goals were and how it, how it did contravene,
why there was a reason for broadening that-
-: What's the goal of rule 35.
-: Rule 35 I would argue is to manage and control
physical and mental examinations of the parties.
-: It's a truth seeking function, correct?
-: It's a truth seeking function to be sure,
but it has many conditions because physical and mental
examinations are very intrusive.
And so you have certain conditions under rule 35 that you
don't see normally, you know, you have to show a good,
a good cause for the examination.
You have to show that the condition is in controversy,
which we don't argue here.
You have to have a time, place-
-: [Justice Wendlandt] I'm sorry, can I ask you that?
It is in controversy here.
-: Yes.
We don't argue that it's that it's not in controversy.
-: Okay.
-: Correct. So there are many-
-: But doesn't that answer the good cause?
-: They are two separate things.
Two separate analyses.
Good cause and in controversy.
So the fact that it's in controversy doesn't necessarily
mean there's good cause for the examination,
for example, in this matter, we would argue, your honor,
that, because number one,
there were two rule 35 mental examinations that
were ordered that day.
One from doc, by Dr. Postal, who's a neuropsychologist
and not a physician.
Also one by Dr. Dalton who is a neurologist and a physician.
They were both ordered of Mr. Ashe.
We would also argue that prior to-
-: And who who's retaining Dr. Dalton?
-: The, the appellee.
So Appellee has retained Dr. Dalton
as their expert neurologist, and appellee retained
Dr. Postal as their expert neuropsychologist.
And the reason that they retained Dr. Postal,
as I read from their pleadings and their brief is
to review the documents that they received as a result of
getting 79 G medical records that provided the complete
history of Mr. Ashe.
-: Let me ask you something. So you go to trial
and Dr. Dalton testifies and he's reviewed,
and he's testified as to Mr. Scheer's work or,
or the issue of mental deficits,
and you as a fabulous trial lawyer say to him, well,
you didn't do any paper and pencil tests, did you?
And you start going into all the things that a neuro a
neuropsychologist does. I mean, as you well know,
there are psychiatrists and psychologists in the,
in the paper and pencil stuff that the deficits are usually
done by psychologists.
So I get your argument with rule 35 and whether we have
strict construction of the word physician,
I'm not so enamored with your argument about good cause
because of as you probably recognize
the difference in those two disciplines in,
particularly with psychiatry,
psychologists studying the absence or presence of deficits.
-: Understood, your honor.
And I would just offer this, when you have records of
examinations, these examinations were done by Dr.
Shear who treated or examined Mr. Ashe
back in 2017 and 2018,
shortly after this incident occurred.
And Dr. Shear provided all of the raw data to Dr.
Postal pursuant to a motion that was allowed, provided,
obviously all of the testing results,
all of the examinations and what Dr.
Shear did at that time was give a snapshot of what Mr.
Ashe, Ashe's, cognitive deficiencies were at that time.
If the appellee wishes to have Dr.
Postal also address what the cognitive issues were.
There's nothing that stops Dr.
Postal from reviewing the very same records that the
appellant's have. They have nothing more than we have.
The only thing they don't have, and that-
-: [Justice Wendlandt] This is Dr. Shear, right,
they want their own Dr. Shear.
-: They want their own doctor. She, I guess they do, yes,
But Dr. Shear is not an expert.
-: It's been tied to whatever tests that Dr. Shear gave.
There might be other neurological,
psychological tests that Dr. Postal wants to give.
Correct?
-: I can't deny that, your honor, I,
but I would say that their argument is basically that
they're not on the level playing field,
that they don't have the same information the appellants
have. And in fact, they do, they do have.
-: Can we pick up on that, Ms. Kazarosian,
about the level playing field.
This issue of the application of rule 35
and what a physician is, is interesting,
but couldn't the judge, within the judge's discretion,
look at the state of discovery and what the trial is going
to be like, and the fairness of the trial, and say,
as a matter of discovery,
I think in analyzing the cognitive deficiencies here,
that there should be an examination
and it could be a psych, or neuropsychology.
-: And are you saying, not pursuant to rule 35?
Justice Lowy: Right.
-: I would argue that the,
the trial court's discovery, discretion does not extend to
ordering physical or mental examinations of a party other
than what they derive from rule 35.
Otherwise we would have no rule 35 and Schlagenhauf
in the US Supreme court back in 64,
really set the parameters for why we need a rule 35
to protect against these kinds of abuses or,
and to protect the patient from multiple exams, et cetera.
That's why it's a very onerous rule.
So I would argue, your honor,
that there is no, there's broad discretion
and to trial judge for discovery.
There's no doubt about that.
-: The states go both ways on this. I mean,
some states have amended their statutes to conform with
federal rule. Other states say, yeah,
as this trial judge said was close enough as, well
that's what she said, but other states take our position,
correct?
-: Most states,
I think there's only five states who have not amended their
rule, and tellingly they've amended their rule.
Prior to amending their rule,
they were nearly uniformly consistent in not expanding the
word physician.
-: And that's why they amended.
-: And then they amended the rule.
And your honor, I'd point out,
we have had this rule despite the fact that the federal
court has amended the rule twice, once in 88, once in 91.
We have not amended the rule.
And I would suggest that a way,
the way to amend the rule is to go through the rule process
of the, you know,
the advisory committee on the rules of civil procedure
presents a proposal it's sent out for invitation,
for comment to all the stakeholders in the Commonwealth.
And you get contemplative input.
That's very important when you deal with language intervals.
So for example,
and I think one of the courts, it did go to the high
court, I think, in South Carolina.
That was the one place that went to a high court before the
rule was amended.
And it was very important that they,
the concern they had was you're going to have too many
different possibilities with a trial court judge.
Where do we end it?
Which disciplines?
Is it going to be physical therapists?
What kind of certifications?
What kind of licensures?
And that's going to cause more problems every time this case
comes up, if it's decided on one case, one specific issue,
rather than a contemplative process in addressing particular
language and what the best way to structure it is.
If it's going to be amended.
Maybe it should, I don't know, that's above my pay grade,
but I would argue that that's something within the purview
of this court to do in the process of amending a rule,
rather than on a case by case basis.
It's not going to help litigation,
it's going to make things worse.
The other, I would just on good cause, if I could,
cause I think I have a couple of points that I'd like to
just add to.
The other issue, I think in determining good cause
is that the judge is also supposed to take
into consideration the age and condition of
the person.
I don't think there's any dispute that Mr. Ashe
has a condition. He is very,
he's compromised mentally and physically,
and to put him through two mental examinations, without any
showing, and there was no discussion,
there was no questioning by the trial court judge,
nothing that went to the point of what good cause would be
other than to determine that it was a matter in controversy.
So, we would-
-: I read the brief here, and I don't remember
maybe it was in the papers that argument being made
about the detrimental effects on Mr. Ashe.
Was that raised below?
-: No, as far as I was,
we just generally said that we did not agree that there was
good cause for the examination.
Yes, correct.
-: Yeah, I don't remember that.
-: I wouldn't argue with you on that.
-: Okay.
-: I would just close in saying basically that
to protect patients from multiple exams and from abuse
and to promote the goal of the generally
the rules of civil procedure, putting aside the rule,
the goal of rule 35, it's to keep and maintain speedy and
efficient and just determination of cases.
If this matter, for example,
on the definition of the word physician were to be changed
here, in this particular case on these facts,
I would submit that that's going to open up a great door of
more litigation, more interpretation,
a lot more argument about what every nuance of the word
means.
This has been used in its plain and normal definition of the
word. And even the trial court judge,
when she made her decision,
she specifically said a neuropsychologist is close enough to
a medical physician,
to me to come within the ambit of the rule.
There was no ambiguity in her understanding of what that
word meant, and there was no confusion in her mind.
It was just, it didn't fit the request that she had
that she felt should happen,
and that's not respectfully the way the court should
conduct.
-: I don't know which way this case is going to come out,
but I can probably guess that either way,
it's going to result in a referral to the rules committee,
as you suggest.
-: And I think that's the most appropriate way because if you
don't then, or if it doesn't happen that way,
so many of the stakeholders will be disenfranchised as to
their very important input.
When you're talking about wordsmithing a rule
or what language to use or what disciplines to include,
and that includes research data about other jurisdictions,
et cetera. So far, we haven't done it.
And I think there's a reason why we haven't.
-: Can I ask you about your notice requirement argument?
Doesn't that go to the order?
-: [Attorney Kazarosian] I'm not,
trying to see what you mean.
-: That is, under rule 35 says that the order
shall specify the time, place,
manner, condition, and scope of the examination.
-: Yes, it does go to the order, your honor.
-: Okay, so that's something that the judge does.
-: It, it is, yes, that's up to the judge.
-: It's not a requirement of the person seeking
the examination under rule 35.
-: No, it, well, they would present that
if they were seeking the examination,
it would be proposing that to the judge
would be in the order.
I don't think an order can come down without that
information, but yes, it, that is in the order.
-: [Justice Wendlandt] Okay.
So is that a problem here?
-: What we had argued as an issue with the order was that it
came down,
that there was an abuse of discretion because it came down
so long after the discovery deadline had ended.
And so long after we had provided multiple extensions of the
deadline to appellee, and then even after that,
it came down.
So that's basically what our argument is there.
-: [Justice Wendlandt] Okay.
-: I think the discovery deadline was January 2nd of
2019, 2018.
It was extended a couple of times till the middle of
December, 2019. And this did not occur until 2020.
-: [Justice Wendlandt] All right. Thank you.
-: Thank you, your honor.
-: Attorney Lavoie.
-: May it please the court, your honors, Chief Justice Budd,
Mark Lavoie on behalf of, from McDonough, Hacking, and
Lavoie in Salem, on behalf
of the defendant, Shawmut Woodworking and Supply.
The court has already recognized that this is actually a
great opportunity for the court to look at rule 35 and as
justice Lowy references to affirm the trial court's
broad discretion over the scope and conduct of discovery.
-: Well, let me ask you,
so we have a federal rule that changed, and we have a bunch
of states respond to that and change their rule.
We can,
we look at the federal rules all the time and we didn't
change our rule. Doesn't physician mean physician?
-: Your honor, my understanding of the court's earlier ruling
Polednik versus rent control of Brookline 397Massey54,
the absence of an amendment cannot be interpreted to require
a narrow definition of a statute.
And what the word physician has been interpreted before the
federal rules were first amended in,
in Massey, a Pennsylvania case, that it would include
healthcare providers such as a neuropsychologist.
That was in 1983.
So there's pre-existing case law supporting the federal
rule, including the definition of physician.
If the court needs to look further,
is there you have correctly pointed out in Gaziano,
excuse me, in, you're Justice Gaziano.
Justice Gaziano: I think I am.
-: I'm getting ahead of myself in Ortiz,
the PIP statute case this court looked at the definition of
physician and determined that the dictionary definition,
one who's skilled in the healing arts, applied,
and it looked at three different definitions.
All of which encompassed that concept.
-: We, as council pointed out,
the PIP context is a bit different than litigation, correct?
It's no fault. And we're trying to-
Attorney Lavoie: No question.
-: You know, we're trying to give people
that are injured money quickly,
and so they can get on with their lives, correct?
-: No question, your honor.
But, I guess what I'm saying is your point
is that, what does the word physician mean?
And in its ordinary context, this court in 2015 said-
-: Well I think just what justice Botsford wrote in Ortiz
was that we would go into interpret it,
constant with the statutory purpose.
So we have to look at the purpose of either the rule or
the statute, and that's why I'm questioning.
What is the purpose of rule 35?
Does it allow for physician to not just be physicians
essentially?
-: Your honor, I would suggest yes.
And I would,
it's really the interplay of rule 35 and 23379G,
which is at issue here. 23379G covers what evidence is
going into court from medical providers.
And it talks, uses the word physician and dentists.
And in that physicians and a dentist shall include of the
number of things.
And we cite this in our brief, psychologists.
So that allows the plaintiffs to take a neuro-psychological
report and put it into evidence without ever having to call
that neuropsychologist.
It leaves the defendant with the trouble of having to
decide,
do we call this neuropsychologist in and cross examine them
and then wait for the bomb to hit when they get direct exam
to put in their opinions,
or does the defendant then try alternatively,
to get its own evidence through its own neuropsychologist,
to perform testing.
And that's precisely what we tried to do here.
-: Or as was pointed out, you have Dr. Postal,
we'll get the records of Shear and give an opinion based
upon those pen and paper test.
-: Certainly, your honor, and I've done that before.
I've had Dr. Postal come in and testify
in brain injury cases and done
precisely that because the court in Coyman,
I was the defendant in that case, moving for that motion,
the court didn't allow it.
And so I took my medicine and had Dr. Postal come in,
but that's doesn't mean it's fair.
And what we're talking about here is fairness.
So after Coyman, I said enough of the rule 35 idea,
let's do this as Judge Agnes suggested in 2004,
let's talk about the scope of discovery, rule one,
what is a just fair determination at trial,
and let's ask for the court's discretion.
-: So you both cite a number of trial court decisions.
What, if you could distill it for me,
what's the breakdown about the number of times you won
in this issue and lost in this issue.
-: Sure. The breakdown is there are 15 cases cited
about rule 35.
5, the plaintiff's cite on vocational rehabilitation
counselors, all five, stemming from the appeals court case.
I'm blanking on the, Melanie, which we cited in our brief.
I had one of those five cases back in 2007.
Cause I feel that is an inherently unfair issue where we
don't get the same access to certain experts.
So that's those five cases.
Then there are 11 other cases, including this one, that are
either pending or decided, some of which are still pending.
I have the Garrity case, which is one
which we worked it out with Judge Canone.
And the most recent case we supplemented with, was Judge
Wilson, the Kennedy case, the Kelly Case, excuse me.
And the rationale is six, five as I see it.
So it's, it's close, but,
but if I could get back to the concept of 233 and the
interplay 23379G and the interplay with rule 35,
because we see this as defendants, in many cases,
whenever there's a brain injury case,
the report goes in, but the neurologist,
neuropsychologist doesn't necessarily testify.
So we can't cross examine them live unless we take that
Hobson's choice.
So instead we have hire a neuropsych to examine them.
What we can't do though, is offer affirmative evidence,
which would be, as you pointed out,
Justice Gaziano, different tests.
So, perfect example is this case, Mr.
Ashe had a terrible fall, 40 feet,
fractures all the bones in his face,
also sustains a brain injury,
a serious brain injury, for which he largely recovers,
we believe.
Dr. Shear does not hold that view.
He believes that Mr. Ashe had cognitive deficits, attention,
memory, executive function,
and he performed certain tests to establish that.
Those tests include tests on attention
and executive function, which require visual acuity.
As part of Mr. Ashe's injuries,
he sustained blindness in one eye,
his optic nerve was severed, and he sustained ptosis in the
other eye, which means his lid is down over his pupil,
basically.
So he has an extraordinarily hard time reading images.
And one of the tests, of the battery of tests, for visual
imagery, requires the Conners Continuous Performance
Test speaking with my neuro psychologist.
And that test requires quick decisions on visual cues,
which come up on the screen.
It's a computer screen.
In that test, he bombed it.
One percentile, the lowest you could get.
And I asked this neuropsychologist, well, what would you do?
And her answer is you can do it auditory,
meaning by hearing.
Where the, the eyes don't come into play.
And this is what neuro-psychologists do.
They look at the cohort,
how do we make this person closest to the cohort?
So we can ultimately evaluate where the deficit is.
And so what happened here is Dr. Shear has taken
a number of visual tests and turned them into
a deficit when the deficit doesn't per se exist.
Mr. Ashe shows his verbal IQ and his,
his other IQ is his, IQ testing, I should say,
shows that he's normal in many functions,
but he's not normal in all functions because he's, has this
visual problem and he doesn't test well.
So it brings all the scores down, skews the results.
And we're not able to put in affirmative evidence to refute
that. Okay.
-: I understand your position with 79G because 79G
provides an opportunity for a report to come in as the
diagnosis and treatment without the medical provider coming
in.
However, it's interesting.
You're referencing that rule, not rule, that statute,
that passed to make it easier to try cases without having
experts or providers come in as a rationale to have an
expert come in.
-: Sure. Because, your honor, what happens here,
it's and I hasten, I'm going to use some imagery here,
a sword, a shield, and a bootstrap.
The sword is 23379G, get the evidence in,
that's what the plaintiffs do.
The shield is rule 35.
You can't, you can't get that neuropsychologist in
because it's, she's not a physician.
The bootstrap, and this is a key point,
is the next expert who comes in,
and in this case, it's nurse
Adele for the plaintiffs who will testify as a life care
planner, nurse Pollard, Adele Pollard.
As a life care planner,
she'll testify that the deficits found by Dr. Shear,
which we challenge, result in a need for permanent care in a
life care facility, to the tune, a nursing facility,
to the tune of $3 million.
-: Counsil, I have one question that may not be
particularly apt, but could a neuro-psychiatrist
do the same test?
-: A neuropsychiatrist is in essence, by my understanding,
your honor, a psychiatrist who works with
certain aspects of the brain, apparently.
They do certain tests, right?
They do some tests,
but they don't typically do the battery of tests
in the analysis.
-: They are physicians. They are indeed.
Attorney Lavoie: They are physicians.
-: And just wondering if you-
-: Well, actually, it brings a good point, your honor.
What I'm hearing from the defendant, the plaintiff is
that they object to our Dr. Postal doing the testing
because she's not a physician.
So does that mean this court could order us to say, okay,
defendant,
you can go get a neuropsychiatrist to do the testing,
then give it to Dr. Postal and she can interpret it.
I mean, in essence, that's what they're saying.
Cause you know, that's,
that's the argument I read in the brief,
which is get a doctor to do it,
which was one of the superior court justices findings.
That's the remedy. Well, in fairness,
that's not really the remedy.
What we'd like to do is have the same opportunity that the
plaintiffs had to have their client, you know, test it.
And so we're not asking for anything more than they've
asked, then they've gotten.
And the other thing is we spent all this time talking about
rule 35,
but Justice Lowy correctly pointed out when I made this
motion, it wasn't under rule 35,
it was to the sound discretion of the trial court.
-: Why isn't Ms. Kazarosian, correct?
That if the judge within his or her broad discovery
discretion can just order this, why do you need rule 35?
What's rule 35 there for?
-: Well, oh, you mean why is the rule there at all?
Justice Lowy: That was the argument.
-: Yeah, that's true of other issues too, though.
We could take that,
that same argument and use it with expert witnesses.
Federal court says you can take an expert witness by choice.
Superior court, the rule doesn't allow
for expert witness depositions.
The judge has to be the gatekeeper.
So this, this happens in rules.
Certain, there are certain things outside the rule,
which as many of you know, having been trial court judges,
you need to make decisions on.
It's ultimately the goal is to have fairness.
-: I understand that what the plaintiff would argue is good
point, except for,
if the rule said there were no expert depositions,
could the judge say nonetheless, separate from the rule,
there's no expert depositions.
I'm going to order a deposition here within my discretion.
That's their point.
-: Well, yeah, their point says that,
but the rule doesn't say only medical doctors,
the rule says physicians and the history of this court and
of the legislature is,
physicians is more than a medical doctor, right?
-: So is it going to include OTs and PTs and the litany of-
-: The slippery slope, well, I, you know, fortunately I'm,
that's your pay grade, not mine, but what I would say,
your honor is the federal court,
the federal court has said psychologists and other licensed
or certified individuals. Appropriate license, actually,
I'll give you the exact, clinical psychologists and other
certified or licensed professionals.
So, hypothetically, it, I'm running out of time.
I apologize.
But in the end, I'd asked that the court consider this,
this issue which is really about fairness,
and affirm the trial court's broad discretion
to order this examination.
Actually, it's a psychological testing and interview.
Neuropsychological testing and interview.
And I'll rest on my brief.
Thank you very much.
-: [Justice Wendlandt] Thank you.