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Douglas v. Parkview Adventist Medical Center

Superior Court of Maine, Cumberland

May 17, 2017

GREGORY M. DOUGLAS and PAM DOUGLAS, Plaintiffs
v.
PARKVIEW ADVENTIST MEDICAL CENTER, STEPHEN BOYD, M.D., PETER J. DIPIETRANTONIO, M.D., and MYRON KRUGER, M.D., Defendants

          ORDER

          NANCY MILLS, JUSTICE SUPERIOR COURT

         BACKGROUND

         In February and March 2011, plaintiff Gregory M. Douglas was evaluated by Philip Morse, Ph.D. of Neurobehavioral Services of New England (NBSNE). Plaintiffs have designated Dr. Morse as an expert witness at trial. Defendants subpoenaed documents, including neuropsychological and psychological test data and test materials, from NBSNE. (Defs.' Ex. M; Defs.' Br. 3-7.) NBSNE refused to produce the documents pursuant to 22 M.R.S. § 1725. (NBSNE Ex. 1; Defs.' Ex. O.) Defendants requested a discovery conference with the court. M.R. Civ. P. 26(g).

         The discovery conference was held on April 25, 2017. The withheld documents, filed under seal, and the parties' briefs were filed on May 5, 2017. The court has considered the documents filed under seal and other evidence presented and the arguments of counsel. For the following reasons, plaintiffs and NBSNE are not required to provide the documents to defendants.

         DISCUSSION

         NBSNE[1] argues that section 1725(2) prohibits, without exception, producing the requested neuropsychological and psychological test materials and/or test data to unqualified third parties, including litigants. NBSNE bases its argument on the plain language of the statute, with reference to rules of statutory construction, and the legislative history of the statute. NBSNE also discusses and attempts to distinguish Wayne v. Kirk, 2016 U.S. Dist. LEXIS 17692 (N.D. 111. Feb. 9, 2016). Alternatively, NBSNE requests that if the court takes the approach used in Wayne, limitations should be imposed such as "attorneys' eyes only, " requiring the materials and the related information to be kept confidential, and requiring the return and destruction of any materials at the conclusion of the litigation. (NBSNE Br. 10-11 n.4.)

         Defendants argue that the plain language of section 1752 permits the disclosure of the test materials and data unless disclosure "would compromise the objectivity or fairness of the evaluation method or process...." 22 M.R.S. § 1752(2). Defendants argue that the subpoenaed party, NBSNE, must demonstrate how disclosing the material at issue would compromise the objectivity or fairness of the evaluation method or process and if NBSNE cannot sustain that burden, the documents must be produced. Defendants contend that individual psychologists and the American Psychology Association have already published and made available extensive information about tests and the raw data associated with psychological tests, a number of which are marketed to and used by attorneys. Defendants rely on Wayne v. Kirk, the Illinois statute, similar but not identical to Maine's, and Campbell v. Mashek, No. 65070 (Iowa Dist, Polk Cnty. Oct. 24, 1995).

         1. Section 1725

         As enacted, section 1725 provides, in relevant part:

2. .. .The disclosure of neuropsychological or psychological test materials and neuropsychological or psychological test data is governed by this subsection.
A. Except as provided in paragraph B, neuropsychological or psychological test materials and neuropsychological or psychological test data, the disclosure of which would compromise the objectivity or fairness of the evaluation methods or process, may not be disclosed to anyone, including the person who is the subject of the test, and are not subject to disclosure in any administrative, judicial or legislative proceeding.
B. A person who is the subject of a neuropsychological evaluation or psychological evaluation is entitled to have all records relating to that evaluation, including neuropsychological or psychological test materials and neuropsychological or psychological test data, disclosed to any neuropsychologist or psychologist who is qualified to evaluate the test results and who is designated by the person. A neuropsychologist or psychologist designated to receive records under this paragraph may not disclose the neuropsychological or psychological test materials and neuropsychological or psychological test data to another person.

22 M.R.S. § 1725(2) (2016).

         The court concludes that this statutory language is plain and unambiguous. See Dickau v. Vermont Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d 621. The language of the statute provides that neuropsychological or psychological test materials and neuropsychological or psychological test data may be disclosed only to a qualified neuropsychologist or psychologist designated by the person evaluated. 22 M.R.S. § 1725(2)(A)-(B) ("Except as provided in paragraph B . . . .").[2] The court does not conclude that the statute creates more than one exception and such materials may be disclosed as long as the disclosure does not compromise the objectivity or fairness of the evaluation methods or process. 22 M.R.S. § 1725(2)(A); see Mumid v. Abraham Lincoln High School 618 F.3d 789, 798 (8th Cir. 2010) (nonrestrictive clause does not identify or define the antecedent noun but is parenthetic); State Farm Mut. Auto Ins. Co. v. Koshy, 2010 ME 44, ¶ 32, 995 A.2d 651 (concepts of grammatical construction of legislation are followed); City of Bangor v. Penobscot County, 2005 ME 35, ¶ 9, 868 A.2d 177 (look to the plain meaning of the statute; nothing is "treated as surplusage if a reasonable construction supplying meaning and force is otherwise possible."); Town of Eagle Lake v. Comm'r. Dep't of Educ, 2003 ME 37, ¶ 7, 818 A.2d 1034 ("We consider the whole statutory scheme for which the section at issue forms a part so that a harmonious result, presumably the intent of the Legislature, may be achieved."). Accordingly, the court does not accept defendants' argument that NBSNE has the "burden to prove the condition expressly required in order to trigger that prohibition for the documents to be subpoenaed: that their disclosure would 'compromise the objectivity or fairness of the evaluation methods or process.'" (Defs.' Br. 8.)

         2. Legislative History

         Even assuming the statute is ambiguous, the legislative history of section 1725, although brief, confirms that there is only one exception to nondisclosure of the materials. As initially put forward, the proposed bill, L.D. 1155, did not include an emergency preamble and did not contain the phrase, "the disclosure of which would compromise the objectivity or fairness of the evaluation methods or process" in section 2(A). Instead, the bill first provided:

Except as provided in paragraph B, neuropsychological or psychological test materials and neuropsychological or psychological test data may not be disclosed to anyone, including the person who is the subject of the test, and are not subject to ...

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