Judge Jill Feeney, Case 21STCV28554 2023-04-11 Tentative Ruling

Plaintiff moves for an order compelling Dr. Saint Martin to produce all the psychological tests administered to Plaintiff, the raw data answers of Plaintiff, and grading scales to Plaintiff’s attorney. Plaintiff argues that Carpenter permits the production of raw data under court order. Additionally, Plaintiff argues that courts in other states have permitted the production of raw data. Plaintiff also alleges that the American Psychological Association’s Ethics Code permit disclosure of raw data by court order. Finally, Plaintiff argues that withholding the data would conflict with Code Civ. Proc., section 2032.610(a)(1). Plaintiff agrees that the raw data will be covered under a protective order limiting its use to this case.

Defendant argues that Defendant cannot produce these materials to Plaintiff’s attorney under California Code of Regulations, title 16, section 1396.3. Defendant also argues that Dr. Saint Martin is not required to produce raw data from psychological testing under Code of Civil Procedure Section 2032.610. Defendant and Dr. Saint. Martin already offered to produce the raw data directly to an appropriate expert.

Plaintiff argues that the disclosure of testing material and grading scales is not prohibited by the APA. Additionally, Plaintiff argues that Dr. Saint Martin’s ethical concerns are addressed by the protective order. Plaintiff also argues that without the data, Plaintiff cannot cross-examine Dr. Saint Martin. Plaintiff also does not intend to retain a neuropsychologist because Plaintiff has limited financial means.

Per Code of Civil Procedure section 2032.610, a party subjected 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).)

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.)

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.)

Here, the Court declines to exercise its discretion to order the production of these materials to counsel given the ethical and practical implications of the disclosure of test materials that are repeatedly used to counsel. Production of these materials to Plaintiff’s expert will preserve the validity of these important psychological tests while still allowing Plaintiff ample opportunity to effectively cross-examine Dr. Saint Martin.

Plaintiff cites a number of federal cases in support of his argument that raw data is routinely produced in other states. Federal cases, whether published or unpublished, constitute only persuasive authority. (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1714.) Plaintiff also seeks judicial notice of tentative rulings also concerning the release of testing materials. Trial court rulings have no precedential value. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.) Therefore, the Court will not consider the tentative rulings. Plaintiff’s request for judicial notice is denied.

Standard 9.04 states that psychologists “must provide test data to the client/patient or other persons identified in the release.” (APA Ethical Standards, Standard 9.04 Ethical principles of psychologists and code of conduct (apa.org).) APA Ethical Standard, Standard 9.11 also requires that Dr. Saint. Martin maintain test security by making “reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law.” (Id., Standard 9.11.) The APA further requires that if the APA’s Ethical Standards conflict with law, regulations, or other legal authority, “psychologists make known their commitment to this Ethics Code and take steps to resolve the conflict in a responsible manner in keeping with basic principles of human rights.” (Id., Introduction and Applicability.) As discussed above, California law provides that psychologists may not “reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices” unless access is limited to “persons with professional interests who will safeguard their use.” (Cal. Code Regs., tit. 16, § 1396.3.) Section 1396.3 directly conflicts with APA Ethical Standard 9.04 because releasing the results of testing would also include the test questions asked during the examination.

Here, Dr. Saint Martin took reasonable steps to resolve this conflict by offering to disseminate the testing materials, answers, and raw data to another licensed neuropsychologist. (Opp., p.6.) Dr. St. Martin’s conditions are reasonable and he has complied with the APA’s standards.

Plaintiff then argues that he would be prejudiced if he does not have access to the testing materials because he will be unable to properly evaluate and cross-examine St. Martin. Plaintiff cites People v. Alfaro (2007) 41 Cal.4th 1277. However, Alfaro involves cross-examination of expert witnesses who had reviewed raw data from a criminal defendant’s psychological examination. The court there found no reversible error in allowing a prosecutor to cross-examine experts who had reviewed the raw data. The case is not relevant to whether raw data should be produced directly to Plaintiff and his counsel. Moreover, Plaintiff will in no way prejudiced in conducting a full cross-examination of Dr. Saint Martin as Plaintiff’s counsel will be armed with the appropriate questions though Plaintiff counsel’s consultation with an expert who had full access to the materials in question here.

Plaintiff finally argues that Dr. St. Martin’s ethical concerns would be resolved through a protective order. However, a protective order does not change the fact that Plaintiff and his counsel are not persons with professional interests who will safeguard the use of these testing materials such as a licensed psychologist. .

Finally, Plaintiff asserts that Plaintiff cannot afford to hire an expert. This assertion does not carry the day. Plaintiff is bringing forward the instant suit and is making claims of neuropsychological injury. Litigation has costs that most be borne and this is one of those costs.