New York State Court of Claims

New York State Court of Claims

WATSON v. THE STATE OF NEW YORK, #2009-030-501, Claim No. 107677, Motion No. M-75626


Defendant did not establish compelling reason why attorney for claimant may not be present during psychiatric examination of claimant by State psychiatrist. Not established how presence of attorney would impair effectiveness of the particular examination beyond generalities

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
January 9, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant’s motion [M-75626]:

1-3 Notice of Motion; Amended Notice of Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General and attached affirmation by Michael Welner, M.D.

  1. Affirmation in Opposition by Gregory J. Cannata, Counsel for Claimants, and attached photocopy of letter from J. Gardner Ryan, Assistant Attorney General
5-8 Filed papers: Second Amended Claim, Answer; Watson v State of New York, UID # 2007-030-007, Claim No. 107677 (March 2, 2007, Scuccimarra, J.). The State of New York was found 50% responsible for claimant’s[1] accident and any resulting injury by Decision filed on April 16, 2007. [See Watson v State of New York, UID # 2007-030-007, Claim No. 107677 (March 2, 2007, Scuccimarra, J.)]. A trial on the issue of damages was directed to be held as soon as practicable, after reasonable damages-related discovery. Claimant apparently alleges that his present functional paraplegia is not a result of any physical cause, but rather results from “conversion disorder,” a psychiatric condition in which the afflicted patient, without any physical cause, displays symptoms of neurological deficits. Claimant has been deposed and available psychiatric records have been provided.

The present motion seeks an order directing that Dennis Watson, the claimant herein, submit to a psychiatric interview by a psychiatrist designated by defendant without claimant’s counsel being present. In lieu of counsel being physically present, defendant has offered to record the interview by videotape.

In correspondence directed to claimants’ attorney dated September 17, 2008, counsel for the defendant indicated that the individual selected to examine and evaluate Mr. Watson was Joseph P. Merlino, M.D., together with contact information, without any indication that the practice of a party having his attorney present during an independent medical or psychiatric examination arranged by the opposing party would be an issue. [See Affirmation in Opposition by Gregory J. Cannata, ¶3, photocopy of letter from defendant’s counsel to counsel for claimants]. When claimant and his attorney arrived at the psychiatrist’s office they learned that the psychiatrist had arranged to videotape the interview and that “a valid interview could not be made with counsel physically present in the interview room.” [Affirmation by J. Gardner Ryan, ¶5].

While defendant is certainly entitled to an adequate psychiatric examination of claimant based upon the injuries claimed [see Civil Practice Law and Rules §3121], claimant is also entitled to have his counsel present if he so chooses during such examination. Indeed, defendant concedes that by “practice and precedent, [but] not positive enactment . . . the courts have recognized some general, presumptive, if far from universally accepted[2] right for a party’s counsel to be present at a physical or mental examination required under CPLR §3121.” [Affirmation by J. Gardner Ryan, ¶9].

In an affirmation attached to the defendant’s motion Michael Welner, M.D. indicates he is associated with Dr. Joseph P. Merlino, and that an appropriate psychiatric evaluation should be in a setting that is “perceptively private” to “limit the likelihood of malingering or manipulated history” reflective of a “doctor-patient interview, not the dynamic of a deposition.” He states that the presence of an “attorney in the room of the interview will engender an artificial and tense atmosphere and will absolutely impede openness and disclosure by the patient on psychologically sensitive but relevant topics . . . [and] will interfere learning, psychiatrically, about this man.”

The rule would seem to be that the attorney may be present as the claimant’s choice, provided he does not interfere with the conduct of the examination. See Ughetto v Acrish, 130 AD2d 12, 24 (2d Dept 1987) appeal dismissed 70 NY2d 871 (1987);[3] see also Nalbandian v Nalbandian, 117 AD2d 657 (2d Dept 1986);[4] Ramsey v New York University Hosp. Center, 14 AD3d 349, 350 (1st Dept 2005);[5] Jessica H. v Spagnolo, 41 AD3d 1261, 1262-1263 (4th Dept 2007);[6] Lamendola v Slocum, 148 AD2d 781, 782 (3d Dept 1989) lv dismissed 74 NY2d 714 (1989); [7] see also McNeil v State of New York, 8 Misc 3d 1028(A) (Ct Cl 2005). It is the defendant’s burden to establish why the attorney should not be present.

After carefully reviewing the affirmation by the psychiatrist and what scant related law there is on the subject, the court finds that defendant has not established any compelling reason why claimant’s attorney should be excluded during a psychiatric examination of claimant by a psychiatrist of defendant’s choosing. Cf. Barraza v 55 West 47th Street Co., 156 AD2d 271 (1st Dept 1989).[8] Only generalized statements by the associate of the designated psychiatrist to the effect that the presence of any attorney (or for that matter any third person) at a psychiatric examination interferes with an adequate “forensic psychiatric interview”[9] have been submitted. Defendant has not established how the attorney’s presence would impair the validity or effectiveness of the particular examination [Matter of Alexander L., supra], beyond the generalities quoted, which are present in any such essentially artificial enterprise entered into for non-therapeutic reasons. While one might question the wisdom of insisting that the attorney for the person to be examined be present in terms of skewing the evidence that might ultimately be offered, under these circumstances it is still claimant’s choice.

Based on the foregoing, defendant’s motion is in all respects denied.

January 9, 2009
White Plains, New York

Judge of the Court of Claims

[1].Reference is to Dennis Watson as the wife’s claim is derivative.
[2]. Defendant cites to federal decisions and cases from other state jurisdictions where the view is held that there is a presumption against an attorney’s presence at physical and mental examinations.
[3]. The Second Department analogized this case - wherein it determined that involuntarily committed patients at a State psychiatric hospital are entitled to have their attorney present during psychiatric examinations conducted by psychiatrists whom the hospital intends to have testify at judicial retention hearings - to those involving psychiatric examination of a parent in a termination of parental rights action brought by reason of mental illness (e.g. Matter of Alexander L., 60 NY2d 328 [1983]). The court said: “we find that in providing a right to counsel to patients, the Legislature intended that in the absence of any showing that counsel’s presence would interfere with the psychiatric examination, counsel should be permitted to observe either directly or indirectly these prehearing psychiatric examinations held following the commencement of proceedings to obtain a judicial retention order.”
[4]. A divorce case where plaintiff wife had placed her psychiatric condition in controversy with regard to claim for maintenance. The Second Department said: “We find, however, that there was no basis for permitting defendant’s counsel, against plaintiff’s wishes, to be present during the psychiatric examination [of plaintiff]. The cases cited by Special Term in support of its decision concern the right of the person being examined to have his or her own counsel present, not opposing counsel (Ponce v. Health Ins. Plan, 100 AD2d 963; Jakubowski v. Lengen, 86 AD2d 398). While it is true that defendant will eventually have access to the results of the psychiatric examination, we find that the plaintiff is entitled to be examined only in the presence of the examining physician, and her own counsel if that be her desire (see, Ponce v Health Ins. Plan, supra.). With respect to plaintiff’s own counsel, we would add that if he is present, he is not to interfere with the conduct of the examination . . . (citation omitted).”
[5]. In an employment discrimination action, former employee was entitled to have her attorney present during psychiatric evaluation conducted at defendants’ request by their psychiatrist. “Concerning defendants’ psychiatric evaluation of plaintiff, a party to a civil action is generally entitled to have his or her attorney present during a physical examination conducted at its opponent’s demand by its physician, provided that the attorney does not unduly interfere with the examination (see Jakubowski v Lengen, 86 AD2d 398 [1982]). We see no reason why the same rule should not apply to a psychiatric evaluation (cf. Matter of Alexander L., 60 NY2d 329 [1983]).”

[6]. “We conclude that the [trial] court properly allowed plaintiff’s attorney to observe the neuropsychological examination. ‘A party is “entitled to be examined in the presence of [his or] her attorney or other . . . representative
. . . so long as [that person does] not interfere with the conduct of the examinations”. . . , “unless [the] defendant makes a positive showing of necessity for the exclusion of” such an individual’ (A.W. v County of Oneida, 34 AD3d 1236, 1237-1238 [2006]; see Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349, 350 [2005]). Here, defendants failed to meet their burden of establishing that ‘the presence of the attorney or other representative will “impair the validity and effectiveness” ’ of the neuropsychological examination (A.W., 34 AD3d at 1238, quoting Matter of Alexander L., 60 NY2d 329, 332 [1983]).”
[7]. “. . . [W]ith respect to defendants’ cross motion to compel Lamendola’s medical examination in the absence of her attorney . . . [s]ince there is no indication, as we view the record, that plaintiffs’ attorney would interfere with the conduct of the examination, it was an abuse of discretion for Supreme Court to grant the cross motion to the extent it sought to exclude him ( see . . . [citation omitted] Jakubowski v. Lengen, 86 AD2d 398, 400-401). It should be noted, however, that the attorney's function is ‘limited to the protection of the legal interests of his client’ and in regard to the ‘actual physical examination * * * he has no role’ ( Jakubowski v. Lengen, supra, at 401).”
[8]. In this singular case involving what appears to have been an extensive procedural history including a new trial on damages after plaintiff’s appeal, and the underlying rape of a six (6) year old more than ten (10) years before the rulings, the trial court’s exclusion of plaintiff’s representative during a psychiatric examination was not an abuse of discretion. The First Department said: “After the matter was returned to Trial Term, [defendant] was granted further discovery in the form of a psychiatric examination of . . . [the plaintiff] so that it could ascertain the extent of her alleged posttraumatic stress disorder. The court heard oral arguments on the matter and then permitted the examination to take place without the presence of plaintif’s counsel but ordered that it be audiotaped. This ruling did not constitute an abuse of discretion. The decision to exclude plaintiff’s representative on the ground that his presence might interfere with the examination ‘must be considered in the light of the facts and circumstances of each case’ (Jakubowski v Lengen, 86 AD2d 398, 401). Here, the court’s direction to exclude plaintiff’s representative was adequately supported by the record, including two affidavits by defendant’s physician concerning the sensitive nature of the inquiry due to the claimed injury. Similarly, the trial court properly authorized the psychiatric examination to be audiotaped, citations omitted.”
[9]. He states, among other things: “An attorney present . . . may interrupt or chaperon an examination, and since the examination is dependent on verbal and nonverbal expression by the examinee, its integrity and validity cannot be assured since the patient is available to coaching. There is nothing, moreover, to prevent the attorney from even politely intruding upon the examination, further puncturing the privacy within which a patient customarily finds more comfort in speaking on sensitive topics, and further constricting the patient’s openness, and clinical usefulness of responses. An interview in which a third party is present ceases to be a psychiatric interview and becomes something more superficial or adversarial, ranging from a meeting of more superficial acquaintance to a deposition.”