United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.
Catos essentially complain of the manner in which they were
treated by the police during the investigation of the
incident. 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.
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,
The Parties' Positions
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.
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.
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