Clayton v. Hon. Kenworthy

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KACEN CLAYTON, a minor, by and through his natural mother,
MEGHAN SHERMAN, Petitioner,

v.

THE HONORABLE LAWRENCE C. KENWORTHY, Judge of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of YUMA, Respondent Judge,

ASSOCIATES FOR WOMEN’S HEALTH, an Arizona corporation;
SURENDHER LOKAREDDY M.D., P.C., an Arizona corporation;
SURENDHER LOKAREDDY, M.D. and JANE DOE LOKAREDDY,
husband and wife; ANNETTE CASEY, C.N.M and JOHN DOE CASEY,
husband and wife; YUMA REGIONAL MEDICAL CENTER, Real Parties
in Interest.

No. 1 CA-SA 20-0086
FILED 9-15-2020

Appeal from the Superior Court in Yuma County
No. S1400CV201800818
The Honorable Lawrence C. Kenworthy, Judge

JURISDICTION ACCEPTED AND RELIEF GRANTED

COUNSEL

Miller Kory Rowe LLP, Phoenix
By Teri M. Rowe, Jeffrey Boyd Miller
Counsel for Petitioners
Jones, Skelton & Hochuli PLC, Phoenix
By Stephen A. Bullington, Cory E. Tyszka, Eileen Dennis GilBride
Counsel for Real Parties Association et al.

Slattery Petersen PLLC, Phoenix
By Jill M. Covington
Counsel for Real Party Yuma Regional

OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which Judge
Paul J. McMurdie and Chief Judge Peter B. Swann joined.

H O W E, Judge:

¶1 In this special action proceeding, Kacen Clayton challenges
the respondent trial judge’s order that he undergo an unrecorded
neuropsychological examination, arguing that the respondent judge
incorrectly applied Arizona Rule of Civil Procedure (“Rule”) 35.

¶2 Special action jurisdiction is appropriate here because
Clayton has “no equally plain, speedy, and adequate remedy by appeal[.]”
Ariz. R. P. Spec. Act. 1(a). Once the examination occurs, the issue will be
moot for appeal. Special action jurisdiction is appropriate also because “the
issue involves the interpretation or application of civil procedure rules” and
the respondent judge’s alleged abuse of discretion concerns “a pure issue
of law that may be decided without further factual inquiry.” Green v.
Nygaard, 213 Ariz. 460, 462 ¶ 6 (App. 2006). We therefore accept special
action jurisdiction and grant relief. We hold that Rule 35 does not give the
court discretion to bar recording an examination upon a party’s request.

FACTS AND PROCEDURAL HISTORY

¶3 Meghan Sherman (“Mother”) is the mother of six-year-old
Kacen Clayton, who suffers from significant disabilities, including bilateral
hearing loss and cerebral palsy. Clayton, by and through his Mother, sued
his doctors and the hospital (“Defendants”) for medical malpractice,
alleging that they had negligently delivered him and caused his disabilities.

¶4 Defendants requested a Rule 35 neuropsychological
examination of Clayton to determine his current and future cognitive
abilities. Mother agreed to the examination on the condition that she be

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Opinion of the Court

present to observe the examination through one-way glass or have the
examination video-recorded through a small recording device. Defendants
objected to any form of observation or recording, arguing that the physical
or electronic presence of an involved third party would interfere with the
examination.

¶5 Defendants supported their objection with a declaration of
the intended examining neuropsychologist. The neuropsychologist stated
that having the examination recorded or having a third-party observer
present would jeopardize its integrity. He asserted that obtaining a true
understanding of Clayton’s cognitive abilities required administering
neuropsychological tests “as they were standardized, which is in a one-on-
one setting.” He added that neuropsychological measures have been
developed and standardized without third-party observers or recording
devices and that deviations from standardized administration of such
measures have been found to “alter and impact the scientific reliability of
the assessment process[.]” Defendants also presented position papers from
the National Academy of Neuropsychology and the American Academy of
Clinical Neuropsychology advising psychologists to decline to have either
third party or recording devices present during a psychological
examination because they can be a significant distraction and can raise test
security considerations.

¶6 After briefing and argument, the court denied Clayton’s
request to have Mother observe the examination through one-way glass,
finding that her presence could adversely affect the examination’s outcome
because it could cause distraction, influence Clayton’s responses, and
hinder rapport between the child and examiner. For the same reasons, the
court found that recording the examination could also adversely affect the
examination.

¶7 The court noted that on a showing that the recording may
adversely affect the examination’s outcome, Rule 35(c)(2)(A) permits the
court to “limit the recording, using the least restrictive means possible.” The
court interpreted the language “may limit the recording” to give it
discretion to prohibit recording and “having no recording at all.” The court
then denied the request to record the examination and ordered Clayton to
undergo an unrecorded examination. This special action followed.

DISCUSSION

¶8 The trial court has broad discretion in ruling on discovery
matters, and we will not disturb its ruling absent an abuse of discretion.

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Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511 ¶ 11 (App. 2009).
Nevertheless, we review de novo the interpretation and application of the
Arizona Rules of Civil Procedure. See Duckstein v. Wolf, 230 Ariz. 227, 231
¶ 8 (App. 2012). In interpreting a rule, our goal is to effectuate the drafters’
intent, and the rule’s plain language is the best indicator of that intent.
Alejandro v. Harrison, 223 Ariz. 21, 23–24 ¶ 8 (App. 2009). When the rule is
clear and unambiguous, we apply it as written without further analysis.
Poulson v. Ofack, 220 Ariz. 294, 297 ¶ 8 (App. 2009).

¶9 Rule 35(a)(1) allows a court, upon motion for good cause, to
order a physical or mental examination of a party “whose physical or
mental condition is in controversy.” Rule 35(c)(1) provides that the person
being examined has the right to have a representative present “[u]nless his
or her presence may adversely affect the examination’s outcome.” And
regardless whether a representative is present, Rule 35(c)(2)(A) gives any
party the right to audio-record or video-record the examination. If a party
shows that the recording “may adversely affect the examination’s outcome,
the court may limit the recording, using the least restrictive means
possible.” Id.

¶10 Although Mother urged in the trial court that she should be
present during the examination, or at least be allowed to observe the
examination behind one-way glass, the trial court had briefing and
argument on the issue and determined that her presence, even behind one-
way glass, would adversely affect the examination. She does not repeat this
argument in her petition for special action, and in any event, we could not
find that the court abused its discretion because the court heard evidence
supporting its ruling.

¶11 She does argue, however, that the trial court abused its
discretion by completely prohibiting the recording of the examination. We
agree. The first part of Rule 35(c)(2)(A) gives the examinee the right to have
the examination recorded. The second part then grants the court the power
to “limit” the recording “using the least restrictive means possible[,]” not to
prohibit it. Had the drafters intended the court’s power to be absolute, they
would have expressly said so. As such, the authority to “limit” the
recording does not empower the court to prohibit recording completely.
The trial court thus erred in ordering Clayton to undergo an unrecorded
examination.

¶12 Defendants argue, that the first clause of Rule 35(c)(2)(A)
grants the trial court the right to prohibit recording the examination,
maintaining that the permissive “may” language suggests that an examinee

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Opinion of the Court

also “may not” record when the court finds that doing so would be
detrimental. But that part of the rule unambiguously creates a right for the
examinee to have his or her examination recorded. This argument therefore
fails.

CONCLUSION

¶13 For the foregoing reasons, we accept jurisdiction, grant relief,
and remand for proceedings consistent with this opinion. On remand, the
trial court shall exercise its discretion and decide the least restrictive means
to limit the adverse effects of recording Clayton’s neuropsychological
examination.

AMY M. WOOD • Clerk of the Court
FILED: AA

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