Nevada’s Supreme Court decided in Powers v. Dist. Ct. that NRS 629.620 violated Nevada’s separation of powers and is unconstitutional. This has immediate implications for clients defending traumatic brain injury cases in Nevada.

The Decision
The statute was sponsored by the local plaintiffs' bar and purported to regulate physical and mental examinations, replacing Nevada Rule of Civil Procedure 35(NRCP). This was a second attempt, as the Supreme Court also deemed an earlier statute, NRS 52.380, unconstitutional for the same reasons. Both statutes upset the balance in tort litigation, violated separation of powers, and negatively affected defendants' ability to defend themselves.

Powers also addressed recurring questions concerning neuropsychological examinations. These examinations generate raw data. In practice, courts had ruled this raw data could be exchanged only between the parties’ neuropsychologists. Here, the plaintiff wanted his counsel to have access to the raw data generated from the examination but without the expense of hiring his own neuropsychologist.

The Supreme Court concluded “the district court did not abuse its discretion by permitting disclosure of the raw data to Bueno’s counsel, subject to a protective order.” The Court concluded “the generalized fears of some neuropsychologists that nonpsychologists, if they are provided raw data, will violate protective orders, misuse the tests and irreparably compromise the validity of future testing, is not sufficient” to support further, narrower restrictions.

Finally, Powers addressed the plaintiff’s request to audio record the examination. Applying NRCP 35, “generally, recording is only proper when the court finds special circumstances amounting to good cause for the requests.” These special circumstances “are rare and typically include extreme situations….” The plaintiff’s “generalized fear that the neuropsychologist might distort the test results in front of the jury” was not sufficient.

Michael Lowry (Partner-Las Vegas) submitted an amicus brief for Las Vegas Defense Lawyers asserting that NRS 629.620 was unconstitutional. The brief also addressed problems with the district court’s order implementing neuropsychological testing requirements.

Implications for Pending Cases
First, NRS 629.620 is inapplicable to litigated cases. This restores balance and discretion to the district courts. Removing NRS 629.620 also helps defendants in brain injury cases because the statute made it nearly impossible to obtain a neuropsychological examination. These requests are instead governed by NRCP 35. The Court, however, ruled narrowly and did not address whether NRS 629.620 may be applicable in other scenarios, such as pre-litigation examinations, UM/UIM claims, worker’s compensation claims, and other settings.

This may not be the end of this years-long dispute, though. Like after the Supreme Court’s Lyft v. Dist. Ct. decision, NRS 629.620’s supporters might return to the legislature in the coming session and attempt to modify the statute in some way to achieve their goals but not violate separation of powers.

Secondarily, though, defendants may still have a difficult time finding neuropsychologists willing to perform examinations. As a result of years of research, the neuropsychological community restricts the raw data generated from testing. It can be provided only to other neuropsychologists for their review. Powers, however, ruled that a party cannot be forced to hire an expert, and the district court adequately addressed the community’s confidentiality concerns by entering a protective order.

Powers did not discuss NAC 641.234(3) and (4), which have the effect of expressly prohibiting such disclosure. The result is conflict between the neuropsychologist’s regulatory obligations and the terms of a court’s order. It seems likely this conflict will generate more motion work and writ petitions in future cases.