BC Supreme Court Discusses Production of Neuropsychologist Raw Test Data
When a party serves an expert report in a BC Supreme Court lawsuit opposing parties are entitled to disclosure of any data compiled by the expert in relation to the report. When it comes to neuropsycholgoists reports, the raw test data compiled by neuropsychologists is relevant and disclosable. Sometimes it is difficult to obtain this data as neuropsycholgoists have ethical and contractual considerations limiting how and when such data is to be disclosed. Often neuropsychologists only wish to disclose the data directly to another neuropsycholgist.
Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry (Smith v. Rautenberg), addressing this and concluding that there is no reason why such data is exempt from disclosure under the BC Supreme Court Rules. In ordering the data to be disclosed directly to the litigant Master McDiarmid provided the following reasons:
[8] Appendix B to the report documents over 20 tests, particularizes the ability being assessed by some of the tests and gives a result under the heading “Classification” for each of the tests (except the last mood tests). Specific components of some of the tests are set out.
[9] A description of the tests in Appendix B are what I would characterize as quite technical. They are the sorts of tests which seem to me would require considerable expertise to both administer and interpret. Clinical psychologists, and in particular clinical neuropsychologists, would probably have the expertise to know whether the administered tests did in fact assess the ability which they purport to assess, and would be able to interpret the data to determine whether or not the interpretation placed on the assessment results by Dr. Pirolli was the proper interpretation. It seems unlikely that the test results could be intelligibly interpreted by persons who did not possess significant expertise in psychology and/or neuropsychology, just from the description of the tests…
[34] In making my decision, I agree with what was written by Southin J.A., namely that when an expert in one field in possession of documents says that someone from a different discipline is not competent to understand his work, that the court is to be slow to overrule his judgment. That is a very different thing from saying that the documentation could not be produced to counsel for the party seeking production. If that party choses to have the documents interpreted by someone not competent to understand them, lack of competence will be readily available to a trial judge and will work against the party who conducts litigation in that way.
[35] I also respectfully agree that courts must not run rough shod over those who are not parties to the proceedings. That is why the Rules require delivery of notices of applications to non-parties from whom documents are sought.
[36] The evidence before Master Horn in Davies was that there was an ethical restriction placed on the neuropsychologist to prevent disclosure. The actual evidence that was presented in that case is not before me.
[37] I had evidence before me of the current Code of Conduct. So long as Dr. Pirolli complies with the Code of Conduct, and in particular that portion of the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28, her ethical requirements are met.
[38] The other concerns raised by the plaintiff are dealt with by the litigation privilege which attaches to the documents.
