This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A person who sues for injuries may generally have a lawyer or other representative present at an examination by the defense’s doctor, but a court may limit that when the presence would keep the examiner from conducting a meaningful examination. Here, the First Department upheld an order, based on the defense expert’s unrebutted affidavit, keeping the plaintiff’s lawyer out of a defense neuropsychological examination, while allowing a licensed clinical psychologist of the plaintiff’s choosing to observe.
The case
- Court
- Appellate Division, First Department
- Decided
- October 15, 2026
- Case
- Hall v Trustees of Columbia Univ. in the City of N.Y.
- Citation
- 2026 NY Slip Op 06003
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff sued The Trustees of Columbia University in the City of New York. The decision does not describe the accident or the injuries. Before the plaintiff’s independent neuropsychological examination by the defendant’s expert neuropsychologist, the defendant moved for a protective order to keep a third-party observer out of the examination. The Supreme Court, New York County, granted the motion to the extent of limiting the plaintiff to an observer who is a licensed clinical psychologist of his choosing. The plaintiff appealed.
The holding
The First Department unanimously affirmed. It held: “On this record, Supreme Court providently exercised its discretion in finding that the presence of plaintiff’s attorney would prevent defendant’s expert neuropsychologist from ‘conducting “a meaningful examination”’” (2026 NY Slip Op 06003, *1, quoting Markel v Pure Power Boot Camp, Inc.). “The court relied on defendant’s expert’s unrebutted affidavit, which was supported by well-established standards of practice in the field of neuropsychology” (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decision in Markel v Pure Power Boot Camp, Inc. (171 AD3d 28). For comparison, the court cited the Third Department’s 2024 decision in McNamara v Buresh (223 AD3d 978), which reached a different result on a different record.
What it means
- When a person’s physical or mental condition is “in controversy” in a lawsuit, the other side may ask for a physical or mental examination (CPLR 3121[a]). In injury cases, the examiner is chosen by the defense.
- As the Third Department said in McNamara, quoting the Court of Appeals, a plaintiff is generally entitled to have a lawyer or other legal representative present, as long as that person does not “impair the validity and effectiveness of the particular examination.”
- The answer can turn on the proof. Here, the defense expert’s affidavit was “unrebutted” and supported by well-established standards in the field. In McNamara, the defense offered mainly the views of its own neuropsychologist, without “evidence of an industry-wide standard,” and the plaintiff’s lawyer was allowed to observe the testing.
- Even here, a licensed clinical psychologist of the plaintiff’s choosing may observe.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
A neuropsychological examination is not like most other defense examinations; as the McNamara decision describes, it can include a testing portion that the defense argued must follow standardized procedures. In our view, the key word in this decision may be “unrebutted.” When a defense expert swears that an observer would compromise the testing, the injured person’s side may need its own expert’s affidavit in response, not just argument. We believe two lessons follow. 1. If you are asked to attend a defense examination, talk with your lawyer first about who may come with you. 2. For lawyers, in a case where memory, attention, or other brain function is at issue, line up your own neuropsychologist early. On a motion like this, the proof decides who is in the room.
Topics
Court: First Department. Year: 2026. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 15, 2026. Posted October 15, 2026.
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