Judge: Elaine W. Mandel, Case: 23SMCV00692, Date: 2024-06-25 Tentative Ruling

Case Number: 23SMCV00692    Hearing Date: June 25, 2024    Dept: P

Tentative Ruling

Gonzales v. Keller, et al., Case No. 23SMCV00692

Hearing date June 25, 2024

Defendants Keller and Shimizu’s Motion for Order Compelling Psychological IME

Plaintiff sues for injuries sustained when defendants’ dog bit his penis.  Plaintiff had scarring, attended fifteen psychotherapy sessions and was diagnosed with post-traumatic stress disorder. The complaint states plaintiff “continues to suffer from residual pain, and has gone through depression, anxiety, fear, and embarrassment from his injuries.” Compl. ¶9. Defendants noticed an IME with psychiatrist, Christopher Thompson, M.D. Plaintiff objected. Defendants move to compel. Neither side requested a discovery conference.

Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. Code Civ. Proc. §2032.310(a).

Defendants argue good cause for the IME, given the claimed psychiatric injuries, diagnosis of PTSD and psychiatric and emotional distress. Plaintiff argues defendants fail to demonstrate good cause because plaintiff has not claimed ongoing emotional distress.

A showing of good cause is required for a psychiatric IME. Vinson v. Superior Court (1987) 43 Cal.3d 833, 840. While plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require psychiatric testing solely on the basis of speculation that something of interest may surface. Id.

The issue is whether plaintiff is claiming mental or emotional distress over and above what is usually associated with the physical injuries claimed. Plaintiff has not stated whether he plans to introduce psychological expert testimony or the PTSD diagnosis at trial. As such, and given plaintiff’s claims of emotional distress, psychiatric treatment and diagnosis, there is good cause to order a psychiatric IME. It would be unfair to allow plaintiff to present such testimony, while denying defendant the opportunity to have an expert evaluate plaintiff as well.

On April 26, 2024 defense counsel stated if plaintiff agreed not to mention psychiatric treatment and agreed not to call a psychiatric expert, a psychiatric IME would not be necessary. As of the reply, plaintiff’s counsel had not negated an intent to retain a psychiatric expert. If plaintiff plans to call an expert and provide testimony regarding his diagnosis, that is good cause to allow an IME. If plaintiff agreed not to provide such testimony, the IME would not be appropriate.

Defense counsel stated the amount of their CCP 998 offer in the papers. It is inappropriate to offer such information to the court and violates the confidentiality of settlement discussion.

This matter should have been addressed via an informal discovery conference. In the future, if the parties have discovery disputes, they are to schedule an IDC.

GRANTED.