Jessenia Burton, Nancy Burton and Tracy Burton v. West Bend Mutual Insurance Company

• Court: Supreme Court of Iowa
• Decided: February 14, 2025
• Docket: 24-0030
• Status: Published

Opinion

In the Iowa Supreme Court

No. 24–0030

Submitted January 21, 2025—Filed February 14, 2025

Jessenia Burton, Nancy Burton, and Tracy Burton,

Appellants,

vs.

West Bend Mutual Insurance Company,

Appellee.

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

judge.

Interlocutory appeal from a district court order granting the defendant’s

motion to compel the production of psychological test material and test data to

the defendant. Reversed and Case Remanded.

McDonald, J., delivered the opinion of the court, in which all justices

joined.

Robert Conklin (argued), Jim Lawyer, and Elizabeth Boyer of Lawyer,

Lawyer, Dutton, Drake & Conklin, LLP, Urbandale, for appellants.

Adam D. Zenor (argued) and Allyson F. Aden of Zenor Law Firm, P.L.C.,

Des Moines, for appellee.

Stephanie A. Koltookian and Jennifer E. Lindberg of Brown, Winick,

Graves, Gross and Baskerville, P.L.C., Des Moines, for amicus curiae Iowa

Psychological Association. 2

Angela E. Dralle of Dorsey & Whitney LLP, Des Moines, and Shannon L.

Bjorkland of Dorsey & Whitney LLP, Minneapolis, Minnesota, for amicus curiae

Pearson Clinical Assessment. 3

McDonald, Justice.

The Iowa Code provides that “[m]ental health information may be

disclosed” in a civil proceeding where an individual “offers the individual’s mental

or emotional condition as an element of a claim or a defense.” Iowa Code

§ 228.6(4)(a) (2023). A different provision of the Code, however, prohibits the

disclosure of certain mental health information in a judicial proceeding,

providing that “a person in possession of psychological test material shall not

disclose the material to any other person” and that “the test material shall not

be disclosed in any . . . judicial . . . proceeding.” Id. § 228.9. The Code also

provides an exception to this prohibition. It allows “an individual who is the

subject of a test” to request “all records associated” with the test to be disclosed

to a designated licensed psychologist. Id. The question presented in this

interlocutory appeal is whether psychological test material and test data can be

disclosed in civil discovery in a personal injury case to anyone other than a

designated licensed psychologist.

I.

On April 30, 2017, Jessenia Burton was a student driver in a drivers’

education course when another vehicle crashed into her vehicle. Burton and her

parents filed this lawsuit against several defendants, including West Bend

Mutual Insurance Company. West Bend provided uninsured and underinsured

motorist coverage for the vehicles used in the drivers’ education course.

In support of her claims, Burton retained neuropsychologist Dr. Daniel

Tranel as a testifying expert. Dr. Tranel conducted a neuropsychological

evaluation of Burton in October 2022 and prepared an expert report. The report

detailed Burton’s medical history. Dr. Tranel noted that Burton was diagnosed

with a concussion and postconcussion syndrome following the accident. 4

Dr. Tranel’s report listed the battery of psychological and neuropsychological

tests he administered to Burton and provided summaries of Burton’s

performance on these tests. The summaries were typically stated in terms of

percentiles. For example, the report stated, “Abstract verbal reasoning and

concept formation was average (63rd %ile) and general knowledge of factual

information was low average (16th %ile).” Dr. Tranel concluded that the accident

caused Burton to suffer “mild deficits in overall intellectual functioning and

executive functioning” and that the “deficits are likely to be permanent.” He also

diagnosed Burton with posttraumatic stress disorder and major depressive

disorder.

After Burton disclosed Dr. Tranel’s report to West Bend, West Bend

requested “any reports, memos, and documents prepared for Plaintiff by any

person identified as an expert witness,” including “testing worksheets,

questionnaires, or other documents prepared for Plaintiff during her

neuropsychological evaluation.” Burton resisted the request for production of

documents. She claimed production of these documents to anyone other than a

designated licensed psychologist was prohibited by Code section 228.9.

When the parties were unable to resolve the discovery impasse, West Bend

filed a motion to compel the production of “Burton’s responses to [Dr. Tranel’s]

test questions, summaries of her performance on the tests, and other data and

information, reports, memos, questionnaires, notes, authorities, forms, or other

evaluation tools.”

Burton resisted the motion to compel. She argued that Iowa Code

section 228.9 prevented the disclosure of the psychological test material and test

data to anyone other than a licensed psychologist, including West Bend and its

lawyers. She explained the law served several purposes. First, the law is in 5

accord with the American Psychological Association Ethics Code. Second, the

law maintains test security and protects the scientific validity of the testing

instruments. Third, the law keeps sensitive data out of the hands of harmful

actors. Fourth, the law prevents data from falling into the hands of unlicensed

persons who may not understand the tests or test data and who may

misrepresent the conclusions or findings.

The district court granted West Bend’s motion to compel. The court

reasoned that when a party makes her mental condition an element in a claim,

as Burton had, then the party’s mental health information becomes discoverable

pursuant to Iowa Code section 228.6(4)(a). As the court explained, “Iowa Code

section 228.6(4)(a) expressly provides that mental health information may be

disclosed in a civil proceeding in which an individual offers that individual’s

mental or emotional condition as an element of a claim.” The court ordered that

the information be produced to West Bend and its attorneys, and it issued a

protective order to limit further disclosure of the information.

II.

We granted Burton’s application for interlocutory appeal. In her appeal,

she challenges the district court’s order granting West Bend’s motion to compel

production of Dr. Tranel’s psychological test material and test data. “Our review

of a ruling by the district court on a motion to compel discovery is for abuse of

discretion.” Keefe v. Bernard, 774 N.W.2d 663, 667 (Iowa 2009). “An abuse of

discretion consists of a ruling which rests upon clearly untenable or

unreasonable grounds.” Struve v. Struve, 930 N.W.2d 368, 377 (Iowa 2019)

(quoting Lawson v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010)). “Misapplying

a rule of law is an abuse of discretion.” In re Condemnation of Certain Rts. in Land

for Extension of Armar Drive Project by City of Marion, 974 N.W.2d 103, 111 (Iowa 6

2022). To the extent this presents a question of statutory interpretation, our

review is for the correction of errors at law. See Keefe, 774 N.W.2d at 667.

The scope of discovery in civil litigation is broad; generally, every litigant

is entitled to every person’s evidence. See Iowa Rs. Civ. P. 1.500(1)(a)(2) (requiring

parties to produce “[a]ll documents, electronically stored information, and

tangible things that the disclosing party has in its possession, custody, or control

and may use to support its claims or defenses”), 1.503(1) (“Parties may obtain

discovery regarding any matter, not privileged, which is relevant to the subject

matter involved in the pending action . . . .”); Willard v. State, 893 N.W.2d 52, 62

(Iowa 2017) (“We construe discovery rules liberally in order to assist in the

disclosure of all relevant and material information.”); Sullivan v. Chi. & Nw.

Transp. Co., 326 N.W.2d 320, 326 (Iowa 1982) (“As a general rule, the scope of

discovery . . . is broad indeed . . . .”). This includes the discovery of “mental

health information” where, as here, the plaintiff “offers the individual’s mental

or emotional condition as an element of a claim.” Iowa Code § 228.6(4)(a).

Even so, there are exceptions to the general rule. See, e.g., id. § 147.135(2)

(stating that peer review records “are not subject to discovery” or release other

than to certain specified individuals); Iowa R. Civ. P. 1.503(1) (acknowledging

that parties may only obtain discovery regarding matters “not privileged”);

Willard, 893 N.W.2d at 64 (“We find that Iowa Code section 135.42 extends to

prevent discovery of PSNs and related documents.”). This case presents the

question of whether psychological test material and test data are one of the

exceptions to the general rule. 7

We begin our analysis of the issue with the text of the relevant provisions.

See Rottinghaus v. Lincoln Sav. Bank (In re Est. of Franken), 944 N.W.2d 853, 859

(Iowa 2020). The Code provides:

Except as otherwise provided in this section, a person in possession of psychological test material shall not disclose the material to any other person, including the individual who is a subject of the test. In addition, the test material shall not be disclosed in any administrative, judicial, or legislative proceeding. However, upon the request of an individual who is the subject of a test, all records associated with a psychological test of that individual shall be disclosed to a psychologist licensed pursuant to chapter 154B designated by the individual.

Iowa Code § 228.9. The language of the statute is plain and unambiguous:

psychological test material and all records associated with the test material

cannot be disclosed in a judicial proceeding. The only statutory exception to this

prohibition is that psychological test material and all records associated with the

test may be disclosed to a psychologist licensed pursuant to chapter 154B.

The statutory limitation on the disclosure of psychological information is

reiterated in the administrative rules governing the practice of psychology. The

administrative code defines test materials and test data. See Iowa Admin. Code

r. 645—243.1 (2023). Like the statute, the administrative code prohibits a

licensee from disclosing psychological test materials, test data, and associated

records except to another licensed psychologist designated by the examinee or

subject of the test in writing. See id. r. 645—243.4(2)–(3). This limitation on the

disclosure of psychological test material, test data, and associated records

includes disclosure in any judicial proceeding. Id. r. 645—243.4(3); see also id.

r. 645—243.4(2) (“A psychologist who receives test data in this manner may not

further disseminate the test data.”).

Despite the unambiguous language of the statute and the administrative

regulations, the district court held that the psychological test material and test 8

data in the possession of Dr. Tranel were discoverable and could be produced to

West Bend and its attorneys. The district court reached that conclusion by

relying on a different statutory provision, specifically, Iowa Code section 228.6.

As relevant here, that Code section provides:

Mental health information may be disclosed in a civil or administrative proceeding in which an individual eighteen years of age or older or an individual’s legal representative or, in the case of a deceased individual, a party claiming or defending through a beneficiary of the individual, offers the individual’s mental or emotional condition as an element of a claim or a defense.

Id. § 228.6(4)(a). The district court reasoned that section 228.6(4)(a) was an

exception to the disclosure limitations contained in section 228.9 when, as here,

the plaintiff puts her mental health information at issue.

West Bend contends the district court’s construction of the two statutory

provisions was correct. We disagree. First, the plain language of Iowa Code

section 228.9 provides that the only exceptions to the statutory limitation on the

disclosure of psychological information are those explicitly contained in

“this section.” Id. § 228.9. The only exception contained in section 228.9 is that

“all records associated with a psychological test” can be disclosed only “to a

psychologist licensed pursuant to chapter 154B designated by the individual.”

Id. By looking to other sections in chapter 228, the district court expanded the

language of the statute and interpreted the word “this section” to mean

“this chapter.” Cf. State v. Brown, ___ N.W.3d ___, ___, 2025 WL 223359, at *7

(Iowa Jan. 17, 2025) (recognizing that sections are narrower than and fall within

chapters). Second, it is a “familiar canon of construction” that to the extent there

is a conflict or ambiguity between a general statutory provision—allowing

discovery of mental health information when a party puts it at issue under

section 228.6(4)(a)—and a specific statutory provision—limiting the disclosure of 9

psychological test material and test data pursuant to section 228.9—the specific

statute controls. Iowa Code § 4.7; MidWestOne Bank v. Heartland Co-op,

941 N.W.2d 876, 883 (Iowa 2020); see also Oyens Feed & Supply, Inc. v.

Primebank, 808 N.W.2d 186, 194 (Iowa 2011). The district court failed to apply

this familiar canon of construction here.

Our conclusion that section 228.9 prohibits the disclosure of psychological

test material and test data in a civil proceeding to anyone other than a

psychologist licensed pursuant to chapter 154B is supported by the persuasive

ruling in Whitney v. Franklin General Hospital, No. C13–3048, 2014 WL 7339213

(N.D. Iowa Dec. 23, 2014). In that case, a psychologist retained as an expert by

the plaintiff offered to disclose test data to a licensed psychologist retained by

the defendant but refused to provide the test data directly to defense counsel. Id.

at *1. The court concluded that the “statutory limitations found in Iowa Code

§ 228.9 . . . are clear and unambiguous” and that the retained psychologist was

“prohibited from disclosing the test material to any other person, including

Plaintiff.” Id. at *4. The court thus ordered the plaintiff to request that the

retained expert “provide the raw test data to Defendants’ expert . . . , a licensed

psychologist.” Id. Whitney mirrors our conclusion and interpretation of

section 228.9: Psychological test material, test data, and associated records can

only be disclosed by a licensed psychologist to another licensed psychologist.

We have also examined decisions from other jurisdictions, but these

decisions are not particularly helpful in our resolution of the statutory question

presented. Some courts have allowed discovery of psychological test material and

test data. See, e.g., United States v. Samples, No. CR. 01–154(L)(DWF/SRN),

2004 WL 759567, at *2 (D. Minn. Apr. 6, 2004) (declining to reach the issue but

noting that a court order to produce test data would “resolve” potential ethical 10

issue); Randy’s Trucking, Inc. v. Superior Ct., 308 Cal. Rptr. 3d 645, 669 (Ct. App.

2023) (“The Legislature, however, has not codified the expert-to-expert limitation

advocated by defendants and amici curiae.”); Palmer v. State,

No. AAN CV–22–6047752–S, 2024 WL 1403567, at *3 (Conn. Super. Ct. Mar. 27,

2024); State ex rel. Svejda v. Roldan, 88 S.W.3d 531, 533 (Mo. Ct. App. 2002)

(stating that ethical principles do not provide an exception to “Missouri’s broad

discovery rules”). These cases allow disclosure based on a balancing of one

party’s need for the information against the ethical restraints imposed on

licensed psychologists, the commercial interests of the testing companies, and

the need to protect the scientific validity of the testing instruments—which could

be impaired from wide disclosure of the testing material. See, e.g., Randy’s

Trucking, 308 Cal. Rptr. 3d at 660–64. None of these decisions involve the

interpretation of a statute or regulation explicitly limiting the disclosure of

psychological test material and test data from disclosure in a judicial proceeding.

See Iowa Code § 228.9; Iowa Admin. Code r. 645—243.4(2)–(3).

Other states have enacted similar, but weaker, counterparts to Iowa law.

For example, these laws permit disclosure unless disclosure would compromise

the objectivity, fairness, or integrity of the testing process. See, e.g., 740 Ill.

Comp. Stat. 110/3(c) (2024) (“Psychological test material whose disclosure would

compromise the objectivity or fairness of the testing process may not be disclosed

to anyone . . . .” (emphasis added)); Minn. Stat. § 148.965 (2024) (“[A] provider

shall not be required to provide copies of psychological . . . test materials . . . if

the provider reasonably determines that access would compromise the objectivity,

fairness, or integrity of the testing process . . . .” (emphasis added)). Disclosure

has been allowed under these provisions. See, e.g., Mayer v. Village of South

Holland, No. 07 C 5408, 2008 WL 4679483, at *3 (N.D. Ill. May 8, 2008) 11

(“Section 3(c) only prohibits disclosure of test materials that would compromise

the test.”). These cases do not involve the explicit statutory and regulatory

limitations imposed under Iowa law.

Some courts presented with a similar question have reached a conclusion

similar to ours. See Walton v. N.C. Dep’t of Ag. & Consumer Servs.,

No. 5:09–CV–302–FL, 2011 WL 2893622, at *2 (E.D.N.C. July 15, 2011)

(“Plaintiff would require Dr. Calloway to disclose privileged or protected materials

which would impose on Dr. Calloway an undue burden by requiring her to violate

ethical and contractual obligations. . . . Dr. Calloway shall not be required to

produce copies of the psychological testing materials.”); Collins v. TIAA-CREF,

No. 3:06CV304–C, 2008 WL 3981462, at *5 (W.D.N.C. Aug. 22, 2008) (granting

defendant’s motion to quash a subpoena because the plaintiff sought “privileged

[raw testing] materials” and “place[d] an undue burden on Dr. Varley in asking

him to violate both his ethical and contractual obligations” but permitting

plaintiff to retain a licensed psychologist to receive the materials); cf. Chiperas v.

Rubin, No. CIV.A.96–130TPJ/JMF, 1998 WL 765126, at *2 (D.D.C. Nov. 3, 1998)

(stating that the court did not need to resolve the dispute after the defendant

hired a licensed psychologist to receive the test data). However, as with the

decisions allowing disclosure to people other than licensed psychologists, these

decisions are of little value in this case.

In short, the persuasive authorities shed little light on the question

presented in this case. Some of those cases involve interpretations of statutes,

regulations, and ethical rules not at issue here. Some of those cases involve the

balancing of competing policy interests not at issue here. This case presents only

a question of interpretation. On that question, “[o]ur duty is to adhere to the

plain meaning of the text.” Calcaterra v. Iowa Bd. of Med., 965 N.W.2d 899, 908 12

(Iowa 2021). “When the text of a statute is plain and its meaning clear, the court

should not search for a meaning beyond the express terms of the statute . . . .”

State v. Iowa Dist. Ct., 902 N.W.2d 811, 815 (Iowa 2017) (omission in original)

(quoting State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999)). Iowa Code

section 228.9 and related regulations are clear and unambiguous: they prohibit

the disclosure of psychological test material and test data in a judicial proceeding

except that the subject of the test may direct a licensed psychologist in

possession of such materials to disclose them to a designated psychologist

licensed under chapter 154B.

We recognize that our interpretation of the plain language of the statute

and relevant regulations is not without consequence. The fact that West Bend

cannot obtain the test material or test data unless it retains a licensed

psychologist to receive the information may hinder West Bend’s ability to obtain

relevant discovery and may hinder West Bend’s ability to conduct effective

cross-examination of Dr. Tranel. West Bend’s only solution to mitigate these

potential litigation disadvantages is to incur additional expense and retain its

own licensed psychologist to receive and evaluate the psychological test material

and test data upon which Dr. Tranel relied. These costs are imposed as part of

the legislature’s balance of competing considerations, including fairness in

litigation, the ethical obligations of licensed psychologists, maintaining the

scientific validity of psychological test material, and protecting the commercial

interest of testing companies. “It is the legislature’s role to balance these

considerations, not ours. Presumably, the legislature did so when it enacted Iowa

Code section [228.9].” Calcaterra, 965 N.W.2d at 908. 13

III.

Our legislature has expressly proscribed the disclosure of psychological

test material and test data in a judicial proceeding to anyone other than a

“psychologist licensed pursuant to chapter 154B.” Iowa Code § 228.9. It is not

within our province to disregard this clear command. The district court erred in

granting West Bend’s motion to compel the disclosure and production of these

materials to West Bend and its attorneys. We reverse the district court’s order

granting West Bend’s motion to compel and vacate the district court’s protective

order relating to the same.

Reversed and Case Remanded.