B.D. v. Carley

B.D. v. Carley

Opinion

 [*260]  [**980]   The opinion of the court was delivered by

DREIER, P.J.A.D.

Plaintiff's motions for leave to appeal and for summary disposition are granted, and the decision is rendered summarily on the moving papers. R. 2:8-3(b).

Defendant, Richard Carley, scheduled a psychological examination of plaintiff in a case where her emotional state had allegedly been placed in issue. Plaintiff's counsel indicated that his client intended to use a recording device to obtain an audio record of the examination,  [***2]  whereupon defendant moved to have plaintiff precluded from making such a recording. The trial judge by order dated October 31, 1997, granted defendant's motion. The judge relied upon the examining psychologist's statement that she believed audiotaping would influence the examination and might affect the examination's validity.

 [*261]   The court relied upon Stoughton v. B.P.O.E. No. 2151, 281 N.J. Super. 605, 658 A.2d 1335 (Law Div.1995), in which the judge determined that plaintiff's counsel could not be present during a psychological examination, nor could a recording be made. The judge in Stoughton recognized the split in authority throughout the country as to whether counsel should be present at physical, psychological or psychiatric examinations. He relied upon the authority excluding counsel from psychiatric or psychological exams, and particularly Pedro v. Glenn, 8 Ariz. App. 332, 446 P.2d 31 (1968) and Edwards v. Superior Court of Santa Clara County, 16 Cal. 3d 905, 130 Cal. Rptr. 14, 549 P.2d 846 (1976). Based on both of these decisions, the Stoughton court expressed the view that counsel should be excluded from psychiatric examinations,  [***3]  although the judge also noted that upon a showing of good cause counsel might be present, citing additional authority. See Stoughton, supra, 281 N.J. Super. at 609, 658 A.2d 1335.

A later California decision, however, Vinson v. Superior Court of Alameda County, 43 Cal. 3d 833, 239 Cal. Rptr. 292, 740 P.2d 404 (1987), noted that although counsel should not be present, the plaintiff could record the examination on audiotape. Ibid. 239 Cal. Rptr. at 300-01, 740 P.2d at 412. In fact, a number of the authorities cited in the Stoughton decision suggested audio recording as an alternative to the presence of counsel, where such presence was denied.

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