Background
Vasken Ohanian sued bus driver Tamisha Davis and her employer, MV Transportation, after a collision allegedly caused physical injuries and psychological and cognitive harm. Davis retained neuropsychologist Dr. Thomas Kinsora to conduct an independent medical examination under Nevada Rule of Civil Procedure 35. Kinsora concluded that Ohanian’s presentation did not match a true traumatic injury and reflected exaggerated responding. His report also criticized testing performed by Ohanian’s expert, including that expert’s treatment of Ohanian’s multilingual background.
Ohanian sought the raw information behind Kinsora’s opinions, including the examination questions, so his lawyer could test the report and prepare cross-examination. The district court repeatedly ordered production to Ohanian’s expert and counsel under a protective order. Davis and MV produced answers but withheld questions, relying on NAC 641.234(3). That Nevada psychology regulation generally tells Board-licensed professionals not to disclose psychological test material or data during judicial proceedings unless specific federal or state law requires it. After the district court ruled that the regulation did not bar disclosure, Davis and MV sought advisory mandamus from the Nevada Supreme Court.
The Court’s Holding
The en banc Supreme Court denied the petition. Justice Lee explained that NRS 641.100(2) authorizes the Nevada Board of Psychological Examiners to regulate “the practice of psychology.” It does not authorize the Board to regulate civil discovery or dictate what Nevada courts may order litigants and experts to produce. NAC 641.234(3) may govern a psychologist’s professional conduct, but it cannot displace a district court’s authority under the Nevada Rules of Civil Procedure. A testifying psychologist must comply with a lawful disclosure order even though the professional regulation independently applies to the psychologist.
The court relied on its recent decision in Powers v. Eighth Judicial District Court, which recognized district-court authority to order production of raw testing data under NRCP 16.1 and NRCP 35. Although Rule 35 does not expressly list raw questions, discovery management lies within the district court’s broad discretion. Rule 16.1 permits discovery of data considered in preparing an expert report, and a Rule 35 examiner who will testify is not exempt from Rule 16.1’s expert requirements. Treating the two rules as mutually exclusive would leave opposing counsel unable to scrutinize an examiner’s methods and conclusions.
The district court also appropriately balanced disclosure against test-security concerns by using a protective order. Because its ruling was neither a clearly erroneous interpretation nor application of law, there was no manifest abuse of discretion. The Supreme Court did not decide whether NAC 641.234(3) is unconstitutional and did not need to rely on NRS 50.305, the expert cross-examination statute. Its narrower holding was that the regulation operates within professional licensing and does not supersede court-controlled discovery.
Key Takeaways
- NRS 641.100 authorizes regulation of psychologists’ practice, not regulation of Nevada courts or civil discovery.
- Raw psychological test data, including examination questions, may be discoverable under NRCP 16.1 and NRCP 35 when a district court orders production.
- A Rule 35 examiner who serves as a testifying expert must also comply with Rule 16.1; the roles and disclosure duties are not mutually exclusive.
- Protective orders allow courts to preserve test integrity and confidentiality while giving counsel the material needed to evaluate and cross-examine an expert.
Why It Matters
The decision removes a practical obstacle in Nevada personal-injury, medical-liability, employment, and other cases involving psychological or neuropsychological examinations. A licensing regulation cannot become a categorical discovery privilege. Counsel offering a psychologist’s opinions should plan for disclosure of the material actually used to reach them, including test questions when ordered, and should not assume that delivery only to another psychologist will satisfy an order requiring production to counsel.
For lawyers seeking sensitive testing material, the opinion also reinforces a tailored approach. The successful order did not make the questions public; it placed them under protection after weighing the examinee’s need for meaningful adversarial testing against the expert’s interest in maintaining test integrity. Nevada litigators should identify the data tied to the disclosed opinions, propose concrete confidentiality terms, and build enough time into expert discovery to resolve objections before trial. Experts who believe professional rules constrain production should seek timely judicial direction instead of withholding selected material after an order issues, because Rule 16.1 permits sanctions up to exclusion of testimony and documents.