In November 2020, Administrative Law Judge Timothy J. McGrath held that defense expert, Dr. Epker, had to produce his test materials, including the raw data collected and his test questions, for his psychological Independent Medical Evaluation (“IME”) in Kabaale v. Reed, Inc.
Since then, many judges have followed this ruling, while others have had the parties enter into a protective order, which required IME psychologists to release the data and materials only to a licensed psychologist of the claimant’s choice.
Defense counsel have attempted to prevent such disclosure by arguing under copyright law or arguing ethical concerns. However, the argument that has gained the most traction is the protection of the integrity of psychological test materials, relying on Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).
Detroit Edison Co.
In Detroit Edison Co., the employer was accused of refusing to disclose information regarding employee aptitude tests requested by the union to prepare for arbitration. The employer complied with most of the requests by the union with the exception of the actual test questions, actual employee answer sheets, and the scores linked with names of employees.
The United States Supreme Court found that “test secrecy is concededly critical to the validity of any such program, and confidentiality of scores is undeniably important to the examinees.” Detroit Edison Co. at 1125-1126.
The Court weighed the employer’s concern, and its demonstration of the relationship between secrecy and test validity, to the union’s “bare assertion” that it needed this information. Detroit Edison Co. at 1131. Further, the Court provided that the circumstances of the case would determine the duty to supply information. Id.
“In light of the sensitive nature of testing information, the minimal burden that compliance with [employer’s] offer would have placed on the Union, and the total absence of evidence that the [employer] had fabricated concern for employee confidentiality only to frustrate the Union in the discharge of its responsibilities,” the Court was unable to support the NLRB in its conclusion that employer violated its statutory obligation to bargain in good faith. Id. At 1133.
Filipovikj v. KBR Government Operations
In March 2023, the employer and carrier in Filipovikj v. KBR Government Operations successfully utilized the Detroit Edison Co. argument. The claimant, a citizen of Macedonia, had requested “all testing materials, protocols, and testing questions relied on by” the carrier’s expert witness, Dr. Shindell, when forming his opinions.
The employer and carrier argued that the tests are trade secrets, and “if the integrity of the tests are compromised, the ability of a psychologist to accurately diagnose mental illnesses ‘would be greatly compromised.’” The employer and carrier then discussed Detroit Edison Co. and offered to release the testing materials to an American-licensed psychologist, but the claimant did not accept this compromise.
Administrative Law Judge (“ALJ”) Paul R. Almanza was asked to apply a protective order to a non-party foreign national located outside of the United States. ALJ Almanza found that protective orders can only be “as effective as the sanctions available to enforce them.” ALJ Almanza found that the employer and carrier’s concerns were well-founded, and the motion to compel was denied.
Similarly, in Fejzuli v. Rik, Ltd., ALJ Dana Rosen found that the expert witness is only required to produce a claimant’s test results to a mental health professional “with the same professional and ethical standards as herself.” ALJ Rosen instructed Fejzuli to choose a psychiatrist or psychologist and inform the employer of the selection.
Conclusion
Moving forward, it will be interesting to see if other judges continue to provide this limited protection to defense experts. We will continue to follow this issue and report as new developments occur.