Judge Blaine K. Bowman, Case Number: 37-2021-00020936-CU-WT-CTL, Date: 2024-05-09 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2021-00020936-CU-WT-CTL, Date: 2024-05-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Wrongful Termination Motion Hearing (Civil) 37-2021-00020936-CU-WT-CTL ROQUE VS OCTAPHARMA PLASMA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Octapharma Plasma, Inc. and Shawn KarMikel's motion to compel mental examination of Plaintiff is GRANTED IN PART. CCP § 2032.320.

Plaintiff raises several procedural issues. With respect to the 30-day requirement of CCP § 2032.220(d), this subsection specifically allows the court to shorten time '[o]n motion of the party demanding the examination.' The court exercises its discretion in favor of shortening time. As to the other issue Plaintiff raises, the court finds the 'STIPULATION REGARDING DEFENDANTS' MENTAL EXAMINATION OF PLAINTIFF ALICE ROQUE' submitted by Defendants as Exhibit D to the Declaration of Geoffrey Lee [ROA 81], and identified by both parties as the last version of the stipulation, sufficient to satisfy the requirements of CCP § 2032.310(b). Given the need to coordinate counsels' schedules, as well as the schedules of Plaintiff and Dr. Cohen, the absence of a date and time in Defendants' moving papers does not preclude the relief Defendants seek.

As to the merits, the court finds Defendants establish good cause for a mental examination by Defendants' expert Marc A. Cohen, M.D. CCP § 2032.320(a). It is undisputed that Plaintiff claims on-going mental injury as a result of the alleged harassment while employed with Defendant Octapharma. As such, Plaintiff has placed Plaintiff's mental state in controversy. Such circumstances support a finding of good cause for a defense mental examination. See, Vinson v. Superior Court (1987) 43 Cal.3d 833, 840-841.

The parties' dispute is primarily directed to the scope of Dr. Cohen's allowable mental examination with respect to 1) Plaintiff's medical history and 2) Plaintiff's family members' medical history. Although the parties' stipulation identifies Plaintiff's family members as Plaintiff's spouse, parents and siblings, Defendants seek only to allow Dr. Cohen to inquire as to the medical history of Plaintiff's parents and siblings so as to ascertain any 'hereditary conditions.' As in Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, Plaintiff's 'objections are grounded upon the constitutional right to privacy contained within article I, section 1 of the California Constitution.' Tylo, 55 Cal.App.4th at 1387. Tylo sets forth the applicable standard.

'When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery. [Citations.]' (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665 [4 Cal.Rptr.2d 564].) Discovery may be compelled only upon a showing of a compelling public interest. (Id. at p. 664.) In those situations where it is argued that a party waives protection by filing a lawsuit, the court must construe the concept of 'waiver' narrowly and a compelling public interest is Calendar No.: Event ID: TENTATIVE RULINGS

3101008 3 CASE NUMBER: CASE TITLE: ROQUE VS OCTAPHARMA PLASMA INC [IMAGED] 37-2021-00020936-CU-WT-CTL demonstrated only where the material sought is directly relevant to the litigation. (Britt v. Superior Court, supra, 20 Cal.3d at pp. 858-859.) The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims. (Harris v. Superior Court, supra, 3 Cal.App.4th at p. 665.) One of the issues in Britt v. Superior Court, as in this case, was the compelled disclosure of psychological information sought on the theory that the action alleged emotional distress. The Supreme Court concluded that the trial court's order was overly broad and reiterated the narrow scope of discovery allowed: 'Accordingly, we held in Lifschutz that 'the ' automatic' waiver of privilege contemplated by [the patient-litigant exception] must be construed not as a complete waiver of the privilege but only as a limited waiver concomitant with the purposes of the exception. Under section 1016 disclosure can be compelled only with respect to those mental conditions the patient-litigant has 'disclose[d] ... by bringing an action in which they are in issue' [citation]; communications which are not directly relevant to those specific conditions do not fall within the terms of section 1016's exception and therefore remain privileged. Disclosure cannot be compelled with respect to other aspects of the patient-litigant's personality even though they may, in some sense, be 'relevant' to the substantive issues of litigation. The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.' ' (Britt v. Superior Court, supra, 20 Cal.3d at pp. 863-864.) Based on Dr. Cohen's declaration, the court finds Defendants establish that Plaintiff's medical history is directly relevant to Plaintiff's claims in this case. The court also finds Defendants establish a compelling need for Dr. Cohen's inquiry into Plaintiff's medical history and that such need outweighs Plaintiff's right to privacy in this instance. Therefore, Dr. Cohen will be allowed to examine Plaintiff with respect to Plaintiff's entire medical history.

The court reaches a different result as to Plaintiff's parents and siblings. As Tylo explains, in the context of the opposing party's attempts to conduct discovery into the marital relationship of a plaintiff suing for wrongful termination, . . . . Petitioner has tendered her psychological condition in this litigation only as it relates to termination of the employment contract. Therefore, discovery is limited to those injuries resulting from termination of the contract. Before real parties can obtain information regarding emotional distress from the marital relationship, they must first identify the specific emotional injuries which petitioner claims resulted from termination of the contract and then demonstrate there is a nexus between damages from termination and those which may arise out of the marital relationship. Real parties have failed to do either. They merely assert the conclusion that there are 'other stressors that might have caused, or contributed to, [petitioner's] alleged emotional injuries,' a true fishing expedition. (Italics added.) Tylo, 55 Cal.App.4th at 1387–1388.

Similarly, Defendants' speculation that there may be a connection between Plaintiffs' family members' medical history and Plaintiff's claimed damages is insufficient to meet Defendants' burden of establishing a compelling state interest. As such, Dr. Cohen will not be allowed to examine Plaintiff with respect to her parents and siblings' medical histories.

The court is not persuaded by the arguments Defendants raise or by the federal authorities Defendants rely on with respect to examination regarding family history. While such authorities contain reference to allowing a defense doctor to inquire regarding family history, none discuss any specifics as to the parameters of such inquiry. However, if any of Plaintiff's parents or siblings are deceased, their right to privacy would not survive their death. See, Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 821. As such, as to any of Plaintiff's parents or siblings who are deceased, Dr. Cohen will be allowed to examine Plaintiff with respect to their medical histories.

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3101008 3 CASE NUMBER: CASE TITLE: ROQUE VS OCTAPHARMA PLASMA INC [IMAGED] 37-2021-00020936-CU-WT-CTL The court modifies the terms of the mental examination set forth in the parties' stipulation to delete paragraph 4. f. and modifies paragraph 4. g. to preclude examination as to Plaintiff's parents or siblings' medical histories, unless such parent(s) or sibling(s) is/are deceased. The court also modifies the timing for production of the recording of the mental examination and for service of Dr. Cohen's written report, if any, to be or before May 13, 2024.

To address the timing of the mental examination in relation to the trial date, the court orders the mental examination to be completed on or before May 3, 2024; Dr. Cohen's deposition, if any, to take place on or before May 17, 2024; the court continues the discovery cut-off for purposes of Dr. Cohen's deposition only, to May 24, 2024; the court continues the Trial Readiness Conference to May 31, 2024, at 1:30pm; the Trial Call remains as set for June 7, 2024, at 1:30pm.

Should Plaintiff be agreeable to a trial continuance, the court will consider alternate dates.

The court orders Defendants to submit a proposed order, consistent with the parties' stipulation and this ruling, no later than April 26, 2024.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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