On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication March 25, 1996.
Before Judges Baime, Villanueva, and Kimmelman. The opinion of the court was delivered by Kimmelman, J.A.D. (temporarily assigned).
The opinion of the court was delivered by: Kimmelman
The opinion of the court was delivered by KIMMELMAN, J.A.D. (temporarily assigned).
In this toxic-tort matter involving lead poisoning of four minor plaintiffs, the court is asked to reconsider its order of October 3, 1995, summarily reversing the trial court's order granting defendants James and Leslie McIntyre *fn1 the right to conduct a psychological evaluation of the mother of plaintiffs, Lavoria Little, who brings this suit as guardian ad litem.
The minor plaintiffs allege by their mother that they ingested lead-based paint chips while tenants at various properties owned by the defendants/landlords and, as a result, have suffered cognitive and behavioral impairments. This litigation is presently in the discovery stage. Defendants sought an order to have an expert perform a psychological evaluation of the mother Lavoria Little hoping to prove that the minor plaintiffs' cognitive and behavioral impairments are genetic defects inherited from their mother, rather than solely caused by the ingestion of the lead-based paint chips. The trial court entered an order requiring the mother to submit to a psychological evaluation and further ordered the release of the school records of the mother and those of her children. Following an emergent application for leave to appeal and for a stay of the order pending appeal, this court summarily reversed that part of the order requiring the mother to submit to a psychological evaluation.
We have reconsidered this matter, and we reaffirm our original summary ruling. Our reasoning follows.
At issue is the extent of discovery which may be permitted under the circumstances of this case. Our discovery rules are far-reaching and are liberally construed to secure for the parties "a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." R. 1:1-2. in general, a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action," unless "limited by order of the court in accordance with [the] rules." R. 4:10-2(a).
A psychologist retained by defendants is of the opinion that heredity is the primary influence on the development of an infant's cognitive abilities and urges that there be a psychological evaluation of the mother of such infants to determine what role heredity may have played in their cognitive development apart from the effects of the alleged lead poisoning. A brief interview with the mother here leads the psychologist to feel that this mother, herself, may have cognitive limitations. Accordingly, based upon the psychologist's certification, defendants made an application to compel the mother's examination pursuant to R. 4:19.
That rule, in pertinent part, provides:
In an action to which a claim is asserted by a party for personal injuries or in which the mental or physica1 condition of a party is in controversy, the court in which the action is pending may from time to time order the party to submit to a physical or mental examination by a medical or other expert. Such examination may include the taking of X-rays and other tests of physical or mental condition. The order may be made only on motion for good cause shown, supported by affidavit stating the party's refusal to submit to an examination upon the movant's request, and upon notice to the party to be examined and to all other parties. . . .
[R. 4:19 (emphasis added).]
The reach of this rule is subject to clearly expressed limitations. Before a court may order a party to submit to a physical or mental examination, the party must be asserting a claim for personal injuries, or the mental or physical condition of a party must be in controversy. Additionally, the movant must make a showing of good cause before the order may be entered.
Here, no claim for personal injuries is being made by the mother, *fn2 who solely acts as the guardian ad litem for the minor plaintiffs. Nor does she assert any claim which affirmatively puts her mental condition in controversy. Rather it is defendants who seek to put her mental condition in controversy by way of defense, based upon their ...