Nondisclosure: Iowa Supreme Court Weighs in on the Discovery of Psychological Test Data

In Burton v. West Bend Mutual Insurance Company, __N.W.3d __, 2025 WL 492018 (Iowa Feb. 14, 2025), the Iowa Supreme Court was asked to resolve whether psychological test material and data can be disclosed in discovery to anyone other than a designated licensed psychologist. While Burton was a personal injury case, the Court’s holding also has important implications in workers’ compensation cases where mental injuries are claimed.

Jessenia Burton alleged she sustained a head injury in an automobile accident and sued the at-fault driver and his insurance company, West Bend Mutual Insurance Co. Burton retained a neuropsychologist as an expert witness, who provided opinions supporting her head injury claim. Through discovery requests, West Bend requested all of the material and data prepared by the neuropsychologist. Burton resisted this request, claiming the production of these documents was prohibited by Iowa Code § 228.9, which provides that “a person in possession of psychological test material shall not disclose the material to any other person” and the test material shall not be disclosed in any . . . judicial . . . proceeding.”  Iowa Code § 228.9 (2023). Section 228.9 does permit the records to be disclosed to a licensed psychologist, if requested by the individual who is the subject of the test.  Id. 

West Bend filed a motion to compel the test materials. The district court granted West Bend’s motion, finding that Iowa Code § 228.6(4)(a) expressly provides an exception to § 228.9, permitting mental health information disclosure when the individual offers their mental condition as an element of the claim. 

The Iowa Supreme Court disagreed and reversed, holding that the language of § 228.9 was “clear and unambiguous” and contained no such exception as found by the district court. The Court acknowledged the costly effect of their decision, as the only recourse for parties wishing to obtain relevant psychological test materials, is to retain their own licensed psychologist to receive the data. Nevertheless, the Court reasoned that it was not within their province to disregard the “clear command” of the legislature. 

In the workers’ compensation setting, it is common for both the worker and employer to retain their own psychology experts when a mental injury is at issue. In the past, there has been some resistance by the claimants to produce their test data materials, even to a licensed psychologist. Thus, while more costly in some litigation settings, this decision is helpful in resolving this issue.