A personal injury case is set to proceed in Lebanon County court, as the Pennsylvania Supreme Court has declined to immediately weigh a plaintiff's objection to a psychiatric evaluation she had to participate in without legal representation.

Although the case, Shearer v. Hafer, presented the justices with the first-impression issue of whether litigants have the right to the presence of counsel during an independent psychological evaluation, the high court did not reach the merits of that issue. Instead the justices ruled 6-1 that the argument posed an unauthorized interlocutory appeal, and remanded the case back to the Lebanon County Court of Common Pleas.

The ruling also vacated the Superior Court's ruling from March 2016, which had held that Pennsylvania's Rules of Civil Procedure allow a trial court to issue protective orders expressly prohibiting the presence of third-party observers during the standardized portion of an evaluation.

The justices had agreed to consider whether the plaintiff, Diana Shearer, had the right to counsel and to audio record the defense's exam. However, writing for the majority, Justice Debra Todd said the issue did not implicate an interest “deeply rooted in public policy.”

“Rather than concerning a constitutional, per se, right to an attorney, the issue before our court involves counsel and layperson representation, and is largely limited, individualized, and fact-based,” Todd said. “Thus, we find that, while the contours of a right to representation during certain aspects of a neuropsychological evaluation give rise to a significant question, it is not the magnitude of those issues which are 'deeply rooted in public policy going beyond the particular litigation at hand.'”

Justice Sallie Mundy dissented, saying the issue warranted review by the court and that Shearer's right could be “irreparably lost” if it wasn't immediately reviewed.

“It is not the source of the right but the effect an order denying that right may have on our system of justice and issues deeply rooted in public policy that matters,” she said.

The case stemmed from a car accident that occurred in July 2010 when defendant Scott Hafer pulled into the path of a vehicle Shearer was driving. Shearer filed suit seeking compensatory damages, and alleged that she suffered cognitive harm triggered by the accident.

According to court papers, Hafer hired Dr. Victor Malatesta to conduct an exam of Shearer, and her counsel demanded to be present during all parts of the exam. Malatesta objected to counsel's presence, creating an impasse that required court intervention, at which point the trial court entered the protective order barring third-party observers.

Shearer appealed the order to the Superior Court, arguing that Rule of Civil Procedure 4010 indicates her right to have counsel present is absolute, asserting that the word “shall” shows the legislature's clear intent. The rule says “the person to be examined shall have the right to have counsel or the representative present during the examination.”

Superior Court Judge Jack Panella, who wrote the opinion for the panel's unanimous decision in March, focused on the legislative intent of Rule 4012, which says that “upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense.”

Panella said that applying Rule 4012 to Rule 4010 makes it appear that the legislature intended to allow trial courts to issue protective orders just like the one issued in Shearer. But Rule 4012 doesn't allow trial courts to issue protective orders “carte blanche,” he said. A good-cause analysis is necessary to justify such an order.

Matthew Crosby of Handler, Henning & Rosenberg, who represented the plaintiffs, did not return a call for comment. Laurie Tilghman of Law Offices of Kenneth S. O'Neill, who represented Hafer, declined to comment.