Judge Audra Mori, Case 20STCV00468 2022-08-11 Tentative Ruling

Plaintiff Elizabeth Amezquita (“Plaintiff”) filed this action against Defendant Kenneth Douglas Kochakji (“Defendant”) for damages arising from a motor vehicle vs. pedestrian accident.

At this time, Defendant moves for leave to compel a neurological and a mental/neuropsychological examination of Plaintiff. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant provides that Plaintiff has already submitted to medical exam for her orthopedic injuries, but a neurology exam with Dr. Kenneth Nudleman (“Dr. Nudleman”) and a mental/neuropsychological exam with Dr. Kyle Boone (“Dr. Boone”) are required to investigate and determine the extent and nature of the claimed neurological and cognitive injuries Plaintiff alleges. Defendant asserts that Plaintiff is alleging to have suffered anxiety, severe emotional distress, cognitive impairment, traumatic brain injury, agitated depression, and memory issues, among other injuries, as a result of the incident. Defendant attests he attempted to meet and confer with Plaintiff, but Plaintiff did not stipulate to the exams. Defendant argues there is good cause for the exams because Plaintiff has placed her neurological, emotional, cognitive, and mental health at issue, and Plaintiff has designated a headache and pain management specialist and a neurologist as non-retained experts. Defendant avers he cannot adequately prepare for trial and rebut Plaintiff’s evidence without the exams.

In opposition, Plaintiff contends that Defendant has not established good cause for the exams, as defense counsel’s declaration submitted with the motion merely contains conclusions not supported by any evidence. Plaintiff contends that Defendant fails to explain why there is good cause to require Plaintiff to submit to the proposed mental exams, especially given the breadth of the exams. If either exam is compelled, Plaintiff contends the exams should be limited with appropriate conditions.

Defendant, in reply, contends that Plaintiff has obviously put her mental state at issue, and the exams are needed to evaluate Plaintiff’s claims. Defendant argues there is good cause for the exams given the injuries claimed by Plaintiff, and that Plaintiff’s proposed limitations are unreasonable.

CCP § 2032.310(b) provides that a motion for a mental 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

In this case, Defendant provides he met and conferred with Plaintiff prior to filing the motion. (Mot. Dao Decl. ¶¶ 7-10.) This is sufficient to satisfy the meet and confer requirement.

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP §2032.320(a).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP §2032.020(a).) This means the examination must be directly related to the specific injury or condition that is the subject of the litigation. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.) Discovery responses can also frame the issues regarding the injuries and damages alleged.

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)

Here, Defendant submits evidence showing, and Plaintiff does not dispute, that Plaintiff is claiming multiple neurological, cognitive, and mental conditions as a result of the accident, including, but not limited to, a traumatic brain injury, depression, memory issues and anxiety. Accordingly, there is good cause for a mental examination of Plaintiff.

However, Defendant is seeking two mental exams of Plaintiff- a neurology exam with Dr. Nudleman and a mental/neuropsychological exam with Dr. Boone. Plaintiff avers that Defendant fails to establish good cause why Plaintiff should be compelled to submit to exams, especially because of their breadth. Defendant primarily relies on Shapira v. Superior Court (1990) 224 Cal.App.3d 1249 (“Shapira”), in arguing the two mental exams of Plaintiff are appropriate. Admittedly, multiple mental exams may be ordered upon the requisite showing of good cause. (Id. at 1255.) However, although Defendant argues multiple exams are needed for Defendant to prepare for trial, Defendant does not meaningfully articulate why multiple mental exams are required to assess Plaintiff’s neurological, cognitive or mental condition in this action at this time.

In Shapira, the plaintiff submitted to a defense physical examination with a neurologist, and to a defense mental exam with a neuropsychologist. (Id. at 1252-53.) Following the mental exam, the neuropsychologist expressly noted that he planned to integrate his findings with the neurologist’s evaluation, as both were “in agreement that the patient should have the benefit of a full psychiatric evaluation to further clarify the patient's symptoms.” (Id. at 1253.) When the plaintiff refused to submit to a psychiatric evaluation, the defendant filed a motion to compel arguing there was sufficient good cause based on the neurologist’s and neuropsychologist’s reports and mutual recommendation of a psychiatric report. (Id.)

Petitioner noted that a neurologist's examination is limited to physical conditions, and a neuropsychologist only administers clinical psychometric testing; he argued that only a psychiatrist can synthesize the findings of the two other experts and evaluate the extent to which real party's behavior and test results are the result of emotional or psychiatric factors. Petitioner also noted that real party had been examined by two treating psychiatrists, who would be free to testify at trial on her behalf.

Unlike in Shapira, Defendant does not provide any evidence showing that both a neurology exam and a mental/neuropsychological exam are required to assess Plaintiff’s condition. The Shapira Court did not hold that a defendant is entitled as a matter of right to both a neurology and a mental/neuropsychological exam where a Plaintiff is claiming neurological, cognitive or mental conditions, such as traumatic brain injury. It noted that “commentators further agree that multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations.” (Id., supra, at 1255.) Moreover, while Plaintiff may have been evaluated by both a headache and pain management specialist and a neurologist, Defendant does not cite any authority holding that this alone is sufficient alone to establish good cause for multiple mental exams of Plaintiff.

Although “[t]here is no question in this case that real party has placed her mental condition at issue and that petitioner is thus entitled to examine her mental condition,” (Id., supra, at 1254), Defendant does not establish good cause for both mental exams at this time. Furthermore, because Defendant is seeking to compel Plaintiff to two mental exams, the court will not decide for Defendant whether Plaintiff should be compelled to submit to a neurology exam with Dr. Nudleman and a mental/neuropsychological exam with Dr. Boone.

In addition, as to the proposed neurology exam with Dr. Nudleman, Defendant’s motion fails to comply with CCP § 2032.320(d). “Section 2032.320 governs the order granting a motion for a mental examination. To protect the plaintiff's privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause. [Citation.] In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: ‘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.’ (§ 2032.320, subd, (d).)” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259 [emphasis in original].)

Defendant provides that Dr. Nudleman’s exam “shall include, but not limited to the taking of a medical history, the testing of [P]laintiff’s nerves and/or neurological systems related to her claims injuries and symptom, as well as any other such standard neurological tests,” (Mot. at p. 6-7:27-2.) but Defendant does not state what actual diagnostic tests Dr. Nudleman expects to use. (Carpenter, 141 Cal.App.4th at 259.) Defendant must specify diagnostic tests and procedures, conditions, scope and nature of the examination. (Id.) Defendant does not specify any tests that will be performed, and instead Defendant provides only that Nudleman’s exam “shall include, but not limited to the taking of a medical history, the testing of plaintiff's nerves and/or neurological systems related to her claimed injuries and symptoms, as well as any other such standard neurological tests. This examination will not include any test or procedure that is painful, protracted or intrusive.” (Mot. at pp. 6-7:27-3; see also Mot. Exh. C.) This is insufficient to comply with CCP § 2032.320(d). In granting a motion to compel a mental examination, the court must list in its order the names of the tests to be performed, which it cannot do if the moving party has not provided them. (Carpenter, 141 Cal.App.4th at 260-262.)

Based on the foregoing, Defendant’s motion to compel the proposed mental exams of Plaintiff is denied without prejudice. The court encourages the parties to meet and confer regarding the mental examinations.

Hon. Audra Mori

Judge of the Superior Court