Judge Alison Mackenzie, Case Number: BC684669, Date: 2024-01-24 Tentative Ruling

Judge: Alison Mackenzie, Case: BC684669, Date: 2024-01-24 Tentative Ruling

Case Number: BC684669 Hearing Date: March 8, 2024 Dept: 55

NATURE OF PROCEEDINGS: Defendant Los Angeles Unified School District’s Motion For Leave Of Court To Conduct Independent Medical Examinations Of Plaintiff And Reopen Discovery For Medical Records Subpoenas And Plaintiff’s Deposition.

Background

On 1/24/24, the Court continued Defendant LAUSD’s (“Defendant”) motion requesting leave to have Plaintiff Camilla Lopez Magallanes (“Plaintiff”) submit to further neurological, psychiatric, and neuropsychological IMEs, and to reopen discovery for the limited purpose of subpoenaing Plaintiff’s medical records, and for the deposition of Plaintiff. As explained in the Court’s 1/24/24 order, good cause exists for Plaintiff to submit to further IMEs but the number of potential tests that the neuropsychologist Dr. Hope E. Goldberg and psychiatric examiner Dr. Jeff Sugar (along with associates or assistants) planned to administer was abusive and needed to be culled to a more manageable number.

The Court concluded that Defendant’s time estimates for the IMEs were appropriate, that Plaintiff may audio-record the mental examination portions of the testing and such recording may include the written part of any tests performed by Dr. Goldberg, and that Plaintiff is entitled to obtain copies from any testing along with the raw data from such tests.

The Court continued the motion and ordered Defendant to provide a revised notice of the three examinations listing a more narrowed set of potential tests to be administered by the examiners and to include that all mental examinations may be audio-recorded and that the Plaintiff is entitled to copies of reports from the testing, including raw data. Defendant filed revised notices of the three IMEs, which Plaintiff opposes.

Legal Standard

A party may seek a court order for additional IMEs based on a showing of good cause. Code Civ. Proc., §2032.310(a), §2032.320(a). A notice of motion for a mental or physical examination “‘shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.’” Carpenter v. Sup. Ct (2006) 141 Cal. App. 4th 249, 259 (hereafter, “Carpenter”); Code Civ. Proc., §2032.310(b). Code of Civil Procedure Section 2032.320(d) provides that an order granting a physical or mental examination “shall specify the person or persons who may perform the examination, as well as the time, place manner, diagnostic tests and procedures, conditions, scope and nature of the examination.”

Analysis

Dr. Jo- In its revised demand, Defendant seeks a neuropsychological examination of Plaintiff by Dr. Mi-Yeoung Jo, PsyD. (no longer Dr. Goldberg). The demand lists 29 “possible” tests that Dr. Jo may administer to Plaintiff but then also states that “additional measures may be added or substituted depending on the child’s presentation on the day of the evaluation.” (Def’s Revised Notices, Jo Demand, p. 4.) The reasonable conclusion from this language is that Dr. Jo may administer one or more of the 29 tests listed in the demand and/or may use other tests that are not listed in the demand. Such a broadly worded demand makes it impossible to discern all of the specific tests that Dr. Jo will (or even may) administer, as is required for an IME order pursuant to Code Civ. Proc., §2032.320(d). This revised demand, which would permit the examination to include all manner of tests not specifically identified, is totally contrary to the Court’s previous direction to Defendant to narrow the list of potential tests.

The revised demand contains other problems. It states that Dr. Jo’s evaluation will include a parent interview. The prior notice made no mention of a parent interview as part of the neuropsychological examination and the Court is unaware of any authority that would permit an IME order to include an interview of a parent as part of a neuropsychological exam.

The revised demand repeats the language from the prior notice that the raw data from the testing will only be exchanged with Plaintiff’s psychological expert subject to a mutually agreeable protective order. This does not address the Court’s prior direction that Plaintiff is entitled to copies of reports along with the raw data pursuant to Code Civ. Proc., §2032.610(a). Defendant has not filed a motion for a protective order, which would require a showing of good cause. Under these circumstances, the Defendant has no basis to demand a protective order to produce information that it is required to turn over pursuant to the Code of Civil Procedure.

Dr. Sugar- Defendant’s revised demand reiterates that Plaintiff must submit to a psychiatric examination by Dr. Sugar. Defendant states that Dr. Sugar “may” use certain scales, checklists, and/or inventories as part of a “detailed mental status examination” but then also vaguely states that he may use “other” unnamed scales. This is the same problem as the revised demand for Dr. Jo. The Court cannot discern the tests and procedures that will be part of the ”mental status examination” to include in any order, as is required under Code Civ. Proc., §2032.320(d). The revised demand for Dr. Sugar states that the examination will include interviews with Plaintiff’s caregivers (the prior notice also said this), but the Court is unaware of any legal basis for such a request.

Dr. Partikian- The Court’s prior order did not specify any issues with the prior notice for Dr. Partikian. Defendant’s revised demand is for Plaintiff to submit to a neurological examination by Dr. Partikian. The Court agrees with Plaintiff that the revised demand is impermissibly vague in stating that Plaintiff must submit to a “basic mental status exam” without naming any specific diagnostic tests as is required for any mental examination under Code Civ. Proc., §2032.320(d). And again, the demand reiterates the statement from the prior notice that the examination will include interviews with Plaintiff’s caregivers without providing any authority for such an order.

Conclusion

The motion is granted in part and denied in part. The motion is granted in part because good cause exists to re-open discovery to subpoena Plaintiff’s recent medical records and to depose Plaintiff regarding her new complaints. The motion is denied in part because the revised demands for additional IMEs remain overly broad in scope. Defendant already had an opportunity to reasonably narrow the demands and simply did not do so.