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Not All Neurological Exams Are The Same, And The Fourth Department Knows It (NY)

September 23, 2021

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<p style="text-align: justify;">When a plaintiff alleges psychological and emotional pain from a slip and fall, how many neuropsychological examinations (“NPE”) can be conducted before the court says “enough?” According to New York’s Fourth Department, that number varies depending on the circumstances.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/09/Pokorski-v.-FDA-Logistics-LLC.pdf">Pokorski v. FDA Logistics, LLC</a>,</em> 195 A.D.3d 1470 (4th Dep’t 2021) the plaintiff commenced an action seeking damages for injuries he allegedly sustained when he slipped and fell on accumulated snow and ice on defendants’ property.  In addition to physical injuries, the plaintiff also claimed he suffered from emotional and psychological pain with related mental anguish, stress, and anxiety. Pursuant to CPLR 3121, defendants served plaintiff with a notice of physical examination requiring plaintiff to undergo an NPE.  Plaintiff moved to prevent defendants from obtaining the NPE on the ground that it would be cumulative of other neurological examinations plaintiff was required to undergo throughout the discovery process. Ultimately,  the Supreme Court granted plaintiff’s motion and defendants appealed to the Appellate Division.</p>
<p style="text-align: justify;">On appeal, the Fourth Department reversed the Supreme Court’s ruling and held that the preclusion order sought by plaintiff was not warranted. The Fourth Department noted that CPLR 3101(a) requires the full disclosure of all matters material and necessary in the defense of an action.  Since defendants’ NPE neuropsychologist would have administered psychological tests that significantly differed from those performed by other neurologists that evaluated plaintiff, the Fourth Department held that the NPE was material and necessary under CPLR 3101(a). Thus, the Fourth Department exercised its discretion and concluded plaintiff’s motion to preclude defendants from obtaining an NPE should be denied.</p>
<p style="text-align: justify;">Thanks to Drew Fryhoff for his contribution to this post.  Should you have any questions, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken </a>.</p>

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