Court Orders Recording Of Defense Expert’s Exam Of Child: In a three-sentence order filed on April 19, 2023, the Court of Appeals for the Fourth District of Texas ordered the recording of the neuropsychological examination of a four-year-old child by the defense expert in a pending premises liability case in which it is claimed that the child suffered brain damage due to the defendants’ negligence, turning aside the defense argument that recording such examination would violate rules imposed by the American Board of Clinical Neuropsychology (“Board”).
The defense argued that the Board’s rules preventing the recording of neuropsychological exams are intended to insure the validity and reliability of testing results and recording would violate ethical standards and security guidelines. The defendants stated in court filings: “Such recording contravenes both Texas law and the established principles of board-certified neuropsychiatrists. But the trial court below has ordered it all the same.” The trial court had ordered the recording to be conducted in the least intrusive manner.
The child’s parents’ lawsuit seeks almost $40 million for the future medical care of their child who was found by a neighbor on the ground after a fall. The child’s psychologist diagnosed the child as suffering severe mental impairments due to the fall. The psychological examination was not recorded.
The defense argued that the child’s psychologist was not bound by the Board’s rules and that the plaintiffs had not provided sufficient support for the need to record the neuropsychological examination by the defense expert: “The trial court’s order violates [property companies’] relators’ rights to the same opportunity to conduct discovery of scientific and specialized data enjoyed by [family] plaintiffs. And it further violates relators’ right to a level playing field at the upcoming jury trial.”
The defense further argued that recording the neuropsychological examination of the child would interfere with the exam. The plaintiffs responded with their psychologist’s testimony that there was no downside to recording the defense exam and that recording the exam was necessary under the circumstances.
The Texas appellate court’s Per Curiam Memorandum Opinion stated: “On April 6, 2023, relators filed a petition for a writ of mandamus and on April 10, 2023, relators filed an emergency motion for a temporary stay of the trial. The court has considered relators’ petition and motion and is of the opinion that relators are not entitled to the relief sought. Accordingly, relators’ petition for a writ of mandamus and emergency motion for a temporary stay are denied. See TEX. R. APP. P. 52.8(a).”
In Re FPG Stone Oak LLC et al., Relators, Case Number 04-23-00324-CV, Court of Appeals for the Fourth District of Texas.
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