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Cato v. Township of Andover

United States District Court, D. New Jersey

April 4, 2018

CLINTON CATO and MARY JO CATO, Plaintiffs,
v.
THE TOWNSHIP OF ANDOVER et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          HON. LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.

         Before the Court is plaintiffs' application for the Court to permit a "nurse observer" or another third party to attend their psychological examinations by defendants' medical expert. ECF No. 26. For the reasons set forth below, the Court holds that neither a nurse observer nor plaintiffs' counsel may be present in the examination room during the plaintiffs' psychological examinations and that plaintiffs also may not audio-record their examinations.

         BACKGROUND

         This is a federal civil rights action, pursuant to 42 U.S.C. §§ 1983 and 1988. Jurisdiction is premised upon a federal question under 28 USC § 1331. Plaintiffs also assert claims under the New Jersey Civil Rights Act, N.J.S.A. § 10:6-1, et seq.t and the New Jersey Constitution, over which this Court has supplemental jurisdiction, 28 U.S.C. § 1367.

         Plaintiffs are husband and wife. Complaint ¶ 4 (ECF No. 1). Their lawsuit is based upon interactions with their neighbors and police that occurred on their property in Andover, New Jersey on the night of July 20, 2015. Plaintiffs aver that Mr. Cato is "black" and Mrs. Cato is "white." Id. Plaintiffs allege that their neighbor George Morehouse and his friend James Dunnigan approached Mr. Cato on the Cato property that night, threatening physical harm to Mr. Cato and yelling racial epithets at him. Id. ¶¶ 18-22. Allegedly in response to this threat, Mr. Cato discharged pepper-spray at Morehouse. Id. ¶ 23. Morehouse and Dunnigan then retreated from the Cato property. Id. Plaintiffs allege on information and belief that Morehouse or his wife then called the police, asserting erroneously that Morehouse had been shot in the head by Mr. Cato. Id. ¶ 27. Police from the neighboring towns of Andover, Newton and Sparta, as well as a New Jersey State Police helicopter, were dispatched to the scene. Id. ¶¶ 28-29.

         Members of the Andover Police Department, upon arriving at the Cato property and encountering Mr. Cato outside the house, allegedly pointed their firearms at Mr. Cato and asked if he was armed. Id. ¶¶ 33-35. When Mr. Cato responded affirmatively, the officers asked Mr. Cato to drop his firearm, and he complied. Id. Mr. Cato was then handcuffed by the police, and objected to the same, allegedly resulting in their replying to the effect that he ought not to complain because he "just shot somebody up." Id. ¶¶ 36-37. Mrs. Cato then emerged from the house, causing the police to shout at her not to advance towards them and demanding to know what was in her hand; she replied that she was not carrying anything. Id. ¶ 40. Mrs. Cato and the Catos' children were then allegedly "detained" outside of their home for the next four hours. Id. ¶ 41. Mr. Cato was taken to the police station and released in the early morning hours. Id. ¶¶ 66, 75.

         The Catos essentially complain of the manner in which they were treated by the police during the investigation of the incident.[1] They assert in an eighteen count Complaint that various police officials, the Andover and Newton Police Departments, and the Townships of Andover and Newton violated the United States and New Jersey Constitutions, as well as 42 U.S.C. §§ 1983, 1988, and the New Jersey Civil Rights Act, N.J.S.A. § 10:6-1, et seq. ECF No. 1. The Complaint alleges that the individually named defendants violated their civil rights by way of false arrest, false imprisonment, use of excessive force, and unreasonable search and seizure. The Complaint further alleges, inter alia, that the Townships of Andover and Newton had policies, customs, and practices of failing to supervise and train its employees resulting in injuries to plaintiffs. Among the damages plaintiffs reportedly sustained are psychological injuries, including post-traumatic stress disorder ("PTSD"). ECF No. 28 n. 1.

         Defendants arranged to have the plaintiffs' psychological condition examined by their own expert, Joel E. Morgan, Ph.D., a Board certified psychologist licensed to practice in the State of New Jersey. See ECF Nos. 28, 28-1. On the date of Mr. Cato's examination by Dr. Morgan, defendants' counsel telephoned the undersigned to inform the Court of Mr. Cato's intention to bring to the examination a third party nurse observer without any prior notice to or agreement with defendants' counsel or Dr. Morgan. See also ECF No. 28-1 ¶ 3. Defendants' counsel reported that he and Dr. Morgan objected to having the examination conducted with the third party nurse observer present. The Court ordered that the examination be suspended until the parties' counsel could submit their respective written positions on the permissibility of plaintiffs' nurse observer being present during the defense medical examinations. See ECF No. 25. Those submissions were subsequently made by counsel. See ECF Nos. 26, 28.[2]

         DISCUSSION

         A. The Parties' Positions

         Plaintiffs' letter application requests that the Court permit a nurse observer, or alternatively their counsel or a recording device, to be present during the psychological examinations by defendants' medical expert. See ECF No. 26. They contend that a defense medical examination is inherently adversarial and requires proper safeguards to avoid providing the defense with "unfettered access under the guise of independence." Id. at 3. Their concerns are particularly heightened by the intention of the defense expert to conduct the examination of each plaintiff over an entire day, which they characterize as an extraordinary duration for such an exam. Id.

         Defendants oppose plaintiffs' application to be accompanied by a nurse observer, as well as the alternative relief plaintiffs seek. See ECF No. 28. They contend that there is nothing inherently adversarial about having each plaintiff examined alone by the defense psychologist. Further, they contend, with the support of an affidavit from their expert, Dr. Morgan, that permitting a nurse observer or audio-recording during the examination will adversely affect the scientific validity of the testing Dr. Morgan plans to administer to plaintiffs. Dr. Morgan emphasizes that the tests he plans to use to assess plaintiffs' condition must be given under standardized conditions in order to be valid. He cites literature in the field establishing that such conditions preclude third party observation, including the use of audiotaping, because it "can artificially alter an individual's task performance, and affect the reliability and validity of test scores." ECF No. 28-1 ¶¶ 7-18. Indeed, he sets forth in his affidavit that he "do[es] not know of any board certified psychologist/neuropsychologist in New Jersey or elsewhere who would agree to such unacceptable working conditions." Id. ¶ 6. He does offer, however, to provide plaintiffs with "as many breaks as wanted in addition to regularly scheduled breaks" and to allow their observer "to situate himself or herself immediately outside the exam room over the course of the evaluation, " where presumably the observer could speak with plaintiffs during breaks. Id. ¶ 28.

         B. Analysis

         Federal Rule of Civil Procedure 35(a) governs physical or mental examinations of parties. It provides that "[t]he court where the action is pending may order a party whose mental or physical condition... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed.R.Civ.P. 35(a)(1). That order "must specify the time, place, manner, conditions and ...


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