Judge Jill Feeney, Case 20STCV29539 2022-10-05 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV29539, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV29539 Hearing Date: October 5, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 5, 2022

20STCV29539

Motion for Leave to Conduct Neuropsychological Examination of Plaintiff filed by Defendants Jorge Alberto Vanegas, Ryder Truck Rental, Inc., and Stream Links Express, Inc.

DECISION

The motion is granted.

Plaintiff is ordered to appear at the offices of Kyle Brauer Boone, Ph.D. on November 10, 2022 at 9:30 a.m. at 24564 Hawthorne Blvd., Suite 208, Torrance, California 90505.

Moving party is to provide notice and to file proof of service of such notice within five courts after the date of this order.

Background

This is an action for negligence arising from a vehicle collision which took place in January 2020. Plaintiff Ana Perez Martinez filed her Complaint against Jorge Alberto Vanegas, Ryder Truck Rental, Inc., and Does 1 through 20.

On March 17, 2021, Steam Links Express, Inc. was named as a defendant in this action.

On September 20, 2022, Defendants filed the instant motion for leave to conduct neuropsychological examination of Plaintiff.

Summary

Moving Arguments

Defendants argue Plaintiff’s counsel refused to agree on reasonable terms for Plaintiff’s neuropsychological examination because the physician retained cannot agree to produce the audio recording of the examination directly to Plaintiff’s counsel.

Opposition Arguments

Plaintiff argues Defendants’ motion should be denied because Defendants (A) failed to specify the diagnostic tests that will be administered, (B) will not release the test answer sheets and data to Plaintiff’s counsel, and (C) refused to allow Plaintiff to exercise her right to audio record the entire examination, including the interview and testing.

Reply Arguments

Defendants argue that the motion does specify potential tests to be conducted during the examination and that Plaintiff has not objected to any of the tests. Additionally, Defendants point to other similar matters in the Los Angeles Superior Court where attorneys were precluded from obtaining sensitive neuropsychological test data. Defendants also argue that Plaintiff’s interests are adequately protected by her retained expert receiving a full audio recording. A protective order is also insufficient to protect the ethical and professional concerns at issue because dissemination of secured testing materials to any non-psychologists is prohibited.

Legal Standard

“Unless otherwise limited by order of the court …, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action …, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).)

Discussion

Defendants seek leave to conduct a neuropsychological examination of Plaintiff.

A motion for an examination shall be accompanied by a meet and confer declaration. (Code Civ. Proc., section 2032.310, subd. (b).)

Defense counsel attests that before filing this motion, he met and conferred with Plaintiff’s counsel via email in June 2022 and could not come to an agreement regarding Plaintiff’s mental examination. (Jensen Decl., ¶¶6-7.) Defendants satisfied the meet and confer requirement.

Here, Plaintiff does not object to the examination by Boone, but rather objects to conditions of the exam as proposed by Defendants. Plaintiff requests the Court to order that Plaintiff be permitted to make an audio recording of the examination; and that Boone to disclose the test materials and raw data of the examination.

Plaintiff seeks raw data, an audio recording, and test materials from Boone’s examination to Plaintiff, which raises ethical issues for Boone. Per Code of Civil Procedure section 2032.610, a party that submitted to a mental examination has the option to demand that the party that requested the examination produce “[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, subd. (a).) It is unclear whether this provision contemplates production of the raw data from psychological testing, or the examiner’s conclusions from that data. In Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, the court determined that a trial court has discretion to require an examiner to produce the raw data from psychological testing, but not the obligation to do so. The court ruled that a trial court should consider the ethical issues relating to the production of the raw data in determining whether to order its production. (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 273.)

However, California Code of Regulations, title 16, section 1396.3 provides, “A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.” (Cal. Code Regs., tit. 16, § 1396.3.) Thus, disclosure of psychological test material could be cause for license revocation for Boone. (Ibid.)

If possible, the Court must interpret California Code of Regulations, title 16, section 1396.3 and Code of Civil Procedure section 2032.610 to give effect to both. (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.¿(1989) 49 Cal.3d 408, 419-420.) The Court therefore concludes that Code of Civil Procedure section 2032.610 cannot require Boone to produce the raw data, test answers from psychological testing, or audio recordings of the examination, but rather his reports and conclusions from that data. Alternatively, Boone has already agreed to disseminate the materials to any licensed psychological expert on Plaintiff’s side and attests that this is his routine procedure. (Boone Decl., ¶8.)

Plaintiff also argues that Defendants failed to specify the diagnostic tests to be conducted.

To compel Plaintiff to submit to examination, the Court must “describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. 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.) “Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant.¿ The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers.¿¿The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.¿ If the parties cannot agree on the specific tests that may be employed, the matter will be resolved by the court in deciding the defendant’s section 2032.210 motion.”¿¿(Id. at 260.)

Here, Defendants do list the tests potentially to be conducted by name:

Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visual spatial Memory Test – Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; the Victoria Symptom Validity Test; Shipley-2; and the NAB Shape Learning subtest.

Defendants’ list of potential tests is proper.¿There is no evidence that any of the proposed tests are inappropriate, irrelevant, or abusive.