Judge Cynthia A Freeland, Case Number: 37-2021-00048956-CU-PA-NC, Date: 2024-04-12 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00048956-CU-PA-NC, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 11, 2024

04/12/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited PI/PD/WD - Auto Motion Hearing (Civil) 37-2021-00048956-CU-PA-NC BUCHINO VS DYKES IV [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/18/2024

Defendant Hugh Graham Dykes IV ('Defendant')'s motion to compel Plaintiff Tracy Buchino ('Plaintiff') to attend a mental health examination is granted subject to the issuance of a protective order.

California Code of Civil Procedure ('CCP') §§ 2032.010 et seq. govern civil discovery by physical and mental examination. CCP § 2032.020(a) provides that '[a]ny party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.' Cal. Code Civ. P. § 2032.020(a). As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with CCP §§ 2031.010 et seq., where, as here, the plaintiff has placed his or her physical or mental condition in controversy. See Cal. Code Civ. P. §§ 2032.020(a), 2032.310; Vinson v. Sup. Ct. (1987) 43 Cal. 3d 833, 839. To obtain a mental examination, the party seeking the exam must obtain leave of court, or the mental examination may be arranged and carried out pursuant to a written agreement. See Cal. Code Civ. P. § 2016.030. To protect the plaintiff's privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause. See Cal. Code Civ. P. § 2032.320(a); Vinson, 43 Cal. 3d at 840; Sporich v. Sup. Ct. (2000) 77 Cal. App. 4th 422, 427-428. In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination. In particular, '[a]n 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.' See Cal. Code Civ. P. § 2032.320(d). In other words, the order must specify and list by name the diagnostic tests and procedures to be used in the examination. See Carpenter v. Sup. Ct. (Yamaha Motor Co.) (2006) 141 Cal. App. 4th 249, 260 ('Carpenter').

In this case, notwithstanding the fact that there is no stipulation regarding a mental health examination, Plaintiff does not object to participating in a mental health examination and does not dispute that there is good cause for such an examination. Instead, the parties disagree primarily as to whom Defendant's examining neuropsychologist will be transmitting the raw data and any recording following the completion of the mental health examination. Because there is no written stipulation for the arrangements for a mental health examination, the court grants the motion. The issue then becomes the scope of a mental health examination order, much of which appears undisputed – though, as explained below, further information is needed to craft the order.

There appears to be no objection to the mental health examination being conducted by Dean C. Delis, Calendar No.: Event ID: TENTATIVE RULINGS

3082815 CASE NUMBER: CASE TITLE: BUCHINO VS DYKES IV [IMAGED] 37-2021-00048956-CU-PA-NC Ph.D. Nor do the parties take issue with the time, date, and location of the examination: April 17, 2024 from 9:00 a.m. to 5:00 p.m. (with a one-hour lunch break) at Dr. Delis's office located at 1016 2nd Street, Encinitas, CA 92024. The court's order compelling Plaintiff's attendance at her mental health examination will contain these details.

As to the tests to be performed, Dr. Delis, in his declaration, indicates that he intends to administer the following: (1) Wechsler Adult Intelligence Scale – 4 (WAIS-4) subtests; (2) Wide Range Achievement Test – 5 (WRAT5) subtests; (3) Boston Naming Test or NAB Naming Test; (4) Wechsler Memory Scale-4 (WMS-4) subtests; (5) California Verbal Learning Test-3 (CVLT3); (6) Wisconsin Card Sorting Test; (7) Delis-Kaplan Executive Function System (D-KEFS) subtests; (8) Cognitive Validity Measures; (9) Minnesota Multiphasic Personality Inventory-3 (MMPI-3) or Beck Depression and Anxiety Inventories; and (10) a Clinical Interview. See Delis Decl., ¶ 2. However, as set forth above, the court's order must specify and list by name the diagnostic tests and procedure be used in the examination.

Under California law, the tests must be described in detail. See Carpenter, 141 Cal. App. 4th at 260. The reason for this specificity is so 'plaintiff, assisted by counsel...may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.' Ibid., at 267. In this case, it is unclear whether Plaintiff takes issue with any of these tests, and Defendant presents insufficient evidence/information about the 10 psychological tests identified in Dr.

Delis's declaration. In the absence of the court understanding the proposed tests, it cannot determine whether any of the proposed tests are appropriate, relevant, and/or abusive under the circumstances and/or whether there is good cause for such tests. The parties are directed to attend the hearing prepared to discuss this issue.

As to the substance of the motion, the court declines Plaintiff's invitation to construe CCP § 2032.610(a)(1)'s language 'results of all tests made' broadly to allow for the disclosure of the subject raw data to Plaintiff's counsel. CCP § 2032.610(a) demands no such result. See, e.g., Roe v. Sup. Ct.

(2015) 243 Cal. App. 4th 138. The statute merely gives Plaintiff the option to issue a written demand that Defendant deliver to Plaintiff: (1) a copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner; and (2) a copy of reports of all earlier examinations of the same condition of Plaintiff made by that or any other examiner. See Cal. Code Civ. P. § 2032.610(a)(1)-(2). Put differently, CCP § 2032.610 does not entitle Plaintiff or her counsel to raw examination data.

At the same time, however, the court respectfully must disagree with Defendant that the court, for policy reasons, cannot order the transmission of raw data and the audio recording of Plaintiff's mental health examination to someone other than a licensed psychologist. Toward that end, Randy's Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal. App. 5th 818 ('Randy's Trucking') is apposite and controlling. In Randy's Trucking, the plaintiff alleged that she suffered a severe traumatic brain jury due to a motor vehicle accident, and her associated symptoms prevented her from returning to work. The defendants subsequently brought a motion for an order compelling the plaintiff to undergo a mental examination by the defendants' neuropsychologist after the plaintiff refused to allow the examination to proceed unless her attorney received all raw data and test information from the examination. The defendants asked the trial court to prohibit the provision of raw test data, test materials, copyrighted publications, or documents containing proprietary information to anyone other than a licensed psychologist or neuropsychologist. The trial court granted the motion to compel the mental examination but denied the defendants' request to limit transmission of the test data and materials to a licensed psychologist or neuropsychologist, instead, the trial court ordered the defendants' neuropsychologist to transfer raw data and an audio recording of the examination to the plaintiff's attorney subject to a protective order. The defendant's chosen neuropsychologist as well as two other neuropsychologists declined to comply with the protective order on the grounds that doing so would compromise the security of the tests and violate their professional and ethical duties. The defendants moved for reconsideration, which the trial court denied. The defendants then sought a writ of mandate from the Fifth District Court of Appeal directing the trial court either to modify the protective order to require the transmission of the raw data and audio recording to the plaintiff's retained psychologist or neuropsychologist instead of the plaintiff's attorney, or vacate the order denying the motion for reconsideration and enter a new order Calendar No.: Event ID: TENTATIVE RULINGS

3082815 CASE NUMBER: CASE TITLE: BUCHINO VS DYKES IV [IMAGED] 37-2021-00048956-CU-PA-NC granting the motion. The Court of Appeal, relying largely on Carpenter, determined that the trial court has broad discretion in discovery matters, including the power to order disclosure of test materials and data to the plaintiff's attorney. Under the specific facts and circumstances of the case, the Court of Appeal concluded that the trial court did not abuse its discretion in ordering transmission of the raw data and audio recording to the plaintiff's counsel because the defendants failed to present sufficient evidence that protecting the ethical and professional obligations of their expert outweighed the plaintiff's right to take discovery and cross-examine the defendants' expert witnesses, including being able to examine the expert on the matter upon which the expert's opinion is based and the reasons for that opinion.

Such is the case here. The court, like the Randy's Trucking Court, rejects Defendant's assertion that producing the raw data and audio recording to a licensed psychologist is sufficient in light of Dr. Delis's ethical obligations and the need to preserve the integrity of the tests. As Plaintiff asserts, she should not be forced to retain an expert to gain access to the raw data and audio recordings. This conclusion is not altered by the fact that Plaintiff has been referred to a neuropsychologist. Moreover, even if Plaintiff did retain such an expert, that expert can only assist Plaintiff's counsel in preparing for cross-examination; however, Plaintiff's counsel must possess more than a secondhand understanding of the information being scrutinized to conduct an effective cross-examination. Furthermore, Defendant provides no evidence that Plaintiff's counsel will use the raw data, in essence, to 'coach' clients in future cases – and any such concerns can be alleviated by way of an appropriate protective order. Finally, Defendant is incorrect regarding the scope of the proposed audio recording. California law is clear that a party who opts to audio record a mental examination must record the entire examination. See Golfland Entertainment Ctrs., Inc. v. Sup. Ct. (Nunez) (2003) 108 Cal. App. 4th 739, 750; Cal. Code Civ. P. § 2032.530(a).

In light of the foregoing, the court grants the motion to compel Plaintiff's mental health examination subject to the issuance of a protective order. Plaintiff is directed to appear for a mental health examination to be conducted by Dean C. Delis, Ph.D. on April 17, 2024 from 9:00 a.m. to 5:00 p.m. (with a one-hour lunch break) at Dr. Delis's office located at 1016 2nd Street, Encinitas, CA 92024. Plaintiff, if she so chooses, shall be allowed to make an audio recording of the entire examination. Dr. Delis is permitted to transmit the audio recording as well as the raw data from the examination to Plaintiff's counsel subject to a protective order. The parties are directed to attend the hearing prepared to discuss: (1) the specifics of the mental health tests Dr. Delis intends to perform, and (2) the terms of a protective order.

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