Judge: Daniel S. Murphy, Case: 20STCV03170, Date: 2023-05-10 Tentative Ruling

Case Number: 20STCV03170    Hearing Date: March 29, 2024    Dept: 32

BACKGROUND

            On January 24, 2020, Plaintiffs Jose Luis Sanchez (Sanchez) and Manuel Acevedo Fernandez (Acevedo) filed this action against Walt Disney Parks and Resorts U.S., Inc. (WDPR), Disney Worldwide Services, Inc. (DWWS), Rona Kay (Kay), and Does 1 through 10, alleging violations of FEHA, wrongful discharge, defamation, and intentional infliction of emotional distress. The operative First Amended Complaint, filed January 29, 2020, adds Defendants Diana Eid (Eid) and Janae Bueno (Bueno) and asserts additional FEHA claims. Eid and Bueno were subsequently dismissed on summary adjudication, along with certain FEHA claims.

            Plaintiffs worked for Disney from the 1980s until 2019, when they were terminated. Plaintiffs were terminated for watching pornography at work. Eid and Bueno allegedly witnessed the incident and reported it. Plaintiffs deny watching pornography and maintain that Acevedo was merely showing off pictures of his cats to Sanchez. Plaintiffs claim that their terminations were motivated by bias against their sexual orientation, race, age, and disability.

            On March 7, 2024, Defendant WDPR filed the instant motion to compel an independent mental examination (IME) of Plaintiffs. Plaintiffs filed their opposition on March 19, 2024. Defendant filed its reply on March 22, 2024.

LEGAL STANDARD

“Any party may obtain discovery . . . 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.” (Code Civ. Proc., § 2032.020, subd. (a).) “If any party desires to obtain discovery by . . . a mental examination, the party shall obtain leave of court.” (Id., § 2032.310, subd. (a).) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Id., § 2032.320, subd. (a).)

DISCUSSION

During meet and confer, the parties were able to stipulate to a substantial portion of the terms of the IME, but reached an impasse on certain issues: (1) the scope of the interviews; (2) the use of certified transcripts; and (3) the destruction of materials upon the completion of litigation.

a. Scope

“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 839.) “In addition, by asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Id. at p. 840.) Here, good cause exists for the examination because Plaintiffs have placed their mental condition in controversy through their allegations. Defendant is entitled to a mental examination of Plaintiffs to determine the extent of Plaintiffs’ mental injuries and their causes.

Plaintiffs do not dispute Defendant’s right to take an IME but argue that the scope should be limited. In particular, Plaintiffs seek to limit the scope of the interview to their employment history with Defendant, going back no further than 1984 and 1985. Plaintiffs also contend that the IME should only cover the emotional and mental injuries that Plaintiffs attribute to their employment with Defendant. However, the scope of inquiry cannot be so narrow because Defendant is entitled to determine whether Plaintiffs have preexisting conditions and to ascertain potential alternative causes. The limited scope of inquiry proposed by Plaintiffs presupposes that Plaintiffs’ mental injuries were solely caused by Defendant’s conduct. However, Defendant is entitled ascertain evidence proving otherwise. Plaintiffs cannot accuse Defendant of causing them emotional distress and then preclude Defendant from proving that the distress was caused by something else. By alleging that Defendant caused their distress, Plaintiffs necessarily place potential alternative causes at issue. (See Vinson, supra, 43 Cal.3d at p. 840.)   

Additionally, the information is necessary for more than identifying alternative causes. Dr. Rosenberg, the examiner stipulated to by both parties, avers that a typical background inquiry includes “developmental history, education, employment, social and marital history, legal history (such as disability claims, if any), general medical history, prior psychiatric history, substance use, and family history.” (Rosenberg Decl. ¶ 9.) “The developmental history portion includes questions about any emotional traumas in childhood or adolescence, and the past psychiatric history includes any emotional traumas as an adult, apart from the allegations in the current litigation.” (Ibid.) Dr. Rosenberg explains that “[a] detailed evaluation of this type is important in differentiating between emotional complaints that may be pre-existing and not related to the alleged actions of the defendants; complaints that were pre-existing but may have been exacerbated by the alleged actions of defendants; complaints that arose concurrently but unrelated to alleged actions of defendants; complaints that arose as a result of defendants’ alleged conduct; complaints that are actually due to substance use or medications; complaints that are due to an underlying general medical disorder; or complaints that arose subsequent to the alleged actions of defendants and were unrelated.” (Rosenberg Decl. ¶ 11(c).) The proposed areas of inquiry are consistent with the American Psychiatric Association’s guidelines, including the DSM-5 manual. (Id., ¶ 11(d)-(f).)

The Court will not substitute its judgment for that of the medical expert. “Many questions which would be legally objectionable, if posed in a courtroom, might be very relevant in the formulation of a sound psychiatric judgment.” (Edwards v. Superior Court (1976) 16 Cal.3d 905, 911.) A psychiatrist is the most qualified to determine the necessary scope of a mental examination. (Ibid.) Plaintiffs cite no expert testimony rebutting Dr. Rosenberg’s assertions. Plaintiffs’ speculation as to how the information may be misused is insufficient. “We must assume, absent evidence to the contrary, that the examiner will proceed in an ethical manner . . . .” (Vinson, supra, 43 Cal.3d at p. 846.)      

Plaintiff relies on Tylo v. Superior Court (1997) 55 Cal.App.4th 1379 for the proposition that a defendant cannot use discovery to seek out alternative stressors that may have contributed to the plaintiff’s alleged emotional distress. Tylo concerned deposition questions asked by defense counsel regarding the plaintiff’s marriage. The defendants in Tylo could only speculate that the plaintiff’s marriage may have contributed to her emotional distress. (Id. at p. 1388.) The court found that the defendants failed to demonstrate “a nexus between damages from termination and those which may arise out of the marital relationship.” (Ibid.) The court in Tylo did not outright foreclose discovery into alternative stressors. The court actually held that the defendants could have “obtain[ed] information regarding emotional distress from the marital relationship” had they demonstrated the relevance of that information. (Ibid.)

 The instant case is distinguishable from Tylo because the questions at issue here will originate from a medical expert for the purpose of conducting an accurate mental examination, not from a defense counsel who is speculating on potential alternative stressors. Dr. Rosenberg has averred under oath as to the necessity of this information, so Defendant is not relying on speculation. As discussed above, the medical expert is more qualified than counsel to determine the necessary scope of inquiry during an examination. (See Edwards, supra, 16 Cal.3d at p. 911.) The information required by the doctor to properly conduct a mental examination does not amount to the type of “fishing expedition” disallowed in Tylo.    

Plaintiffs next argue that “history” is only expressly mentioned in Code of Civil Procedure section 2032.610, and therefore the Legislature could not have intended to allow an inquiry into an examinee’s history in any other respect. This interpretation is not well-taken. Section 2032.610 allows the party being examined to demand “[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.” (Code Civ. Proc., § 2032.610(a)(1).) This section concerns the production of documents after an examination. It has no bearing on the scope of inquiry during the examination. Plaintiff cites no authority suggesting that the Code precludes inquiry into an examinee’s history during a mental examination.

Therefore, the scope of the examination shall be the scope specified in Dr. Rosenberg’s declaration. (See Rosenberg Decl. ¶ 9, Ex. C.)

b. Specifying the Conditions

“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.” (Code Civ. Proc., § 2032.320(d).) “The way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

Plaintiff argues that Defendant’s motion fails to provide these details. However, the parties have already stipulated to a substantial portion of the conditions. Additionally, Dr. Rosenberg’s declaration, which is part of the motion, sets forth the scope of the examination and the tests to be conducted therein. (Rosenberg Decl. ¶ 9, Ex. C.) Therefore, the motion complies with the Code.

c. Certified Transcripts

During the parties’ meet and confer, Plaintiffs expressed that they wished to exclude any transcripts of their statements made during the IME. Defendant’s motion argues that there should be no such restriction and that Plaintiffs’ request amounts to a premature motion in limine. The Court agrees that the issue is premature. The question presently before the Court is whether Plaintiffs must submit to an IME. The Court does not reach the question of whether certified transcripts may be admitted at trial.

d. Destruction of Materials

Both parties are amenable to Dr. Rosenberg destroying records of the IME upon the conclusion of this litigation. However, Defendant requests that this be conditioned on Plaintiffs releasing any and all claims against Dr. Rosenberg related to the IME and to not report Dr. Rosenberg to any medical board for perceived issues with the IME. This is a reasonable compromise that avoids the incongruous result wherein Plaintiffs could sue Dr. Rosenberg for his conduct at the IME after making the doctor destroy potentially exculpatory evidence.

Plaintiffs argue that “Dr. Rosenberg has no right to maintain Plaintiffs’ medical records beyond the conclusion of this matter” regardless of whether Plaintiffs stipulate to releasing claims against him. (Opp. 8:6-14.) The Code is silent on whether a medical examiner may retain records of an exam past the conclusion of litigation. Plaintiffs cite no authority requiring the destruction of examination records, nor do Plaintiffs explain why Dr. Rosenberg should be required to destroy potentially exculpatory evidence while they retain the right to sue him for conduct arising from the IME.  

If Plaintiffs wish to stipulate to the immediate destruction of the records upon the completion of litigation, they shall also stipulate to release all claims against Dr. Rosenberg arising from the IME and to refrain from reporting Dr. Rosenberg to any medical board for conduct related to the IME. Otherwise, the records shall be destroyed upon the expiration of the statute of limitations on any legal claim or medical board complaint that Plaintiffs may bring against Dr. Rosenberg arising from the IME.    

CONCLUSION

            Defendant’s motion to compel mental examination is GRANTED as set forth above. Sanctions are denied as the parties acted with substantial justification.