Abused Child Victim Denied Lawyer at Psych Exam

Last month, a federal judge ruled that a child who is suing the Boy Scouts for emotional distress for abuse at a faith-based military camp is not entitled to have his lawyer present during a psychiatric examination.

In M.S. et al v. Cedar Bridge Military Academy et al, federal Magistrate Judge Martin C. Carlson found that a lawyer’s presence “interjects an adversarial, partisan atmosphere into what should be otherwise a wholly objective inquiry.”

Judge Carlson explained that there is a conflict between federal civil procedure and the Pennsylvania rules. The federal rule and case law discourage any observers, while Pennsylvania’s Rule 4010 permits lawyers to attend such examinations.

The judge concluded that Rule 4010 is not a “rule of substance” that is binding on the federal courts, but rather “is simply a procedural preference which does not control our exercise of discretion” under Rule 35 of the Federal Rules of Civil Procedure.

Rule 35, however, allows the court to determine “the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Rule 35 “consigns the procedures to be used in conducting these examinations to the sound discretion of the court, an approach that is consistent with the general guidance of the rules which provide that issues relating to the scope of discovery rest in the sound discretion of the Court.”

Clearly, under this analysis, Judge Carlson could have allowed the victim’s parents or attorney to be present during the exam subject to whatever reasonable “conditions” the court imposed. Judge Carlson recognized that “[i]n considering this question, we note that the exercise of our discretion compels a choice between conflicting guidance. Rule 35 does not, by its terms, specify who may attend a psychiatric examination undertaken in connection with civil litigation.”

There was no discussion that this case involves a child victim nor any consideration of the child’s maturity or any special circumstances which would necessitate the attorney’s presence at the exam.

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