MOTION FOR LEAVE TO FILE SECOND AMENDED …



UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

______________________________

)

DUANE ZIEMBA ) CIVIL ACTION NO.

) 3:98CV2344 (JCH)(HBF)

V. )

)

JOHN ARMSTRONG, ET AL ) February 3, 2003

______________________________)

PLAINTIFF’S MOTION FOR PROTECTIVE ORDER CONCERNING MENTAL EXAMINATION AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Federal Rule of Civil Procedure 26(c) allows the Court to “make any order which justice requires to protect a party or person from annoyance, embarrassment [or] oppression ... including [that] discovery may be had only on specified terms and conditions.” Pursuant to that Rule, the plaintiff hereby moves for a protective order allowing his counsel or their representative to attend any Rule 35 psychological examination conducted on the plaintiff by employees or agents of the Department of Correction. In the alternative, plaintiff moves for a protective order allowing the presence of a court reporter who will record the examination for later review by his counsel.

The Federal Courts permit the attendance of lawyers and other third parties at Rule 35 psychological examinations when the circumstances require it.  See, e.g., Vreeland v. Godfrey, 151 F.R.D. 551(S.D.N.Y 1993):

There is a legitimate purpose to be served by the presence of the attorney [at a psychological examination].  The attorney can observe and take notes of the procedures followed, in order to have that information available for cross-examination....  The presence of an attorney is more likely to produce a higher quality of justice and fairness in the ensuing trial and permit more cogent cross-examination of the expert.

See also Zabkowicz v. The West Bend Co., 585 F. Supp. 635 (E.D. Wis. 1984) ("There are numerous advantages ... which the defendants might unfairly derive from an unsupervised [psychological] examination.").

Rule of Professional Conduct 4.2 prohibits communication with a represented person by an attorney. The Connecticut Bar Association has held that this proscription applies equally to an investigator hired by the attorney. See Informal Opinion 97-23 at p. 3 (1997) (attached hereto) (“The prohibition of Rule 4.2 extends to a lawyer’s conduct in causing another, such as a counselor/investigator, to make the direct contact with the represented person.”) (citing Wolfram, Modern Legal Ethics (1986), § 11.6.2 at 612, and cases cited therein).

While a psychiatrist or medical doctor hired in the ordinary course of litigation to conduct a truly “independent” psychological examination may not qualify as the attorney’s “investigator” for purposes of Rule 4.2, the circumstances in this case are different. Here, the defendants’ proposed examiners, Northern Correctional Institution Psychologist Paul Chaplin and the DOC’s Director of Mental Health Services Suzanne Ducate, are:

• current employees of the Department of Correction,

• clients of the Attorney General’s Office,

• colleagues of the defendants in this case,

• persons with past and ongoing treatment and supervisory responsibilities for the plaintiff, and

• persons about whose psychiatric care the plaintiff has complained in the past.

Given these facts, the plaintiff has real cause to be concerned about the fairness of the examination, the bias of the examiners and the examiners’ possible ulterior motives to conduct the examination unfairly or to stray into the merits of the case for purposes of building a record for improper use at trial. Plaintiff is also concerned, given the examiner’s extremely close ties to the defendants and their counsel and the examiner’s own prior treatment contact with the plaintiff, that they have already formed an opinion about the plaintiff’s mental state, and that the “examination” is merely the defendants’ attempt to cloak this already-formed opinion with a veneer of fairness and neutrality.

The only way to protect the plaintiff against these possible misuses of the Rule 35 examination is to permit plaintiff’s counsel or their representative to attend and observe or, in the alternative, to permit the presence of a court reporter to record the examination. See, e.g., Di Bari v. Armadora, 126 F.R.D. 12 * 4 (E.D.N.Y. 1989) (The Court held that, because “a psychiatric examination by defendant’s doctor is in reality adversarial in nature,” and because the plaintiff’s “ability to communicate to his counsel what occurred during this psychiatric examination may be seriously impaired, thus preventing plaintiff’s counsel from adequately preparing a cross-examination of the psychiatrist at trial ... the plaintiff will be allowed to have a court reporter present during the examination.”).

Respectfully submitted,

______________________________

Antonio Ponvert III (Ct 17516)

Koskoff, Koskoff & Bieder P.C.

350 Fairfield Avenue

Bridgeport, CT 06604

Tele: (203) 336-4421

Fax: (203) 368-3244

E-mail: aponvert@

James Nugent (CT 05792)

Nugent and Bryant

236 Boston Post Road

Orange, CT 06477

Tel: 203-795-1111

Fax: 203-795-1019

Email: jimnugent@

LOCAL CIVIL RULE 37(a)(2) AFFIDAVIT

I, Antonio Ponvert III, hereby certify, under penalty of perjury and pursuant to Local Civil Rule 37(a)(2), that:

1. I have conferred with Assistant Attorney General Matthew Beizer in an effort in good faith to resolve by agreement the issues raised by this Motion without the intervention of the Court, and we have been unable to reach such an agreement;

2. A true and correct copy of email correspondence between Mr. Beizer and myself is attached hereto.

February 3, 2004 __________________________

Antonio Ponvert III (Ct 17516)

Koskoff, Koskoff & Bieder P.C.

350 Fairfield Avenue

Bridgeport, CT 06604

Tele: (203) 336-4421

Fax: (203) 368-3244

E-mail: aponvert@

CERTIFICATION

This is to certify that a copy of the Motion and Memorandum for Protective Order has been sent by facsimile and U.S. mail, postage prepaid, on this 3rd day of February, 2004, to all counsel as follows:

Peregrine Alban Zinn-Rowthorn

Matthew B. Beizer

Neil Parille

Attorney General’s Office

110 Sherman Street

Hartford, CT 06105

Elliot B. Spector

Michelle Holmes

Sack, Spector & Karsten

836 Farmington Avenue

West Hartford, CT 06119

_____________________________

Antonio Ponvert III

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