Superior Court of California

County of Los Angeles

North Central District

Department B

David Marcus King,

Plaintiff,

Robin Ramon Ha Rivera, et al.,

Defendants.

Case No.: 23BBCV01414

Hearing Date: March 21, 2025

[TENTATIVE] ORDER:

motion to compel defense neuropsychological examination

BACKGROUND

A. Allegations

Plaintiff David Marcus King (“Plaintiff”) alleges that on March 24, 2022, Plaintiff was fully stopped at a red light facing southbound on Laurel Canyon Boulevard at the intersection of Oxnard Street when Defendant driver Robin Ramon Ha Rivera’s negligence and unsafe speed caused Defendants Rivera and Douglas Kinzley’s vehicle to rear-end Plaintiff’s vehicle and injure Plaintiff.

The complaint, filed June 23, 2023, alleges causes of action for: (1) motor vehicle; and (2) general negligence.

B. Motion on Calendar

On December 20, 2024, Defendants filed a motion to compel Plaintiff to appear for a defense neuropsychological examination.

On March 10, 2025, Plaintiff filed an opposition brief.

On March 14, 2025, Defendants filed a reply brief.

DISCUSSION

Defendants argue that Plaintiff should submit to a defense neuropsychological examination (“DNE”) because Plaintiff claims he has suffered traumatic brain injury (“TBI”) as a result of the subject motor vehicle accident. Defendants argue that Plaintiff was evaluated by a neuropsychologist at the National Brain Injury Institute. Defendants argue that Plaintiff initially agreed to stipulate to a DNE, but the parties could not agree on the nature and scope of the DNE. Specifically, Plaintiff would not agree that the raw data obtained by Defendants’ expert could be provided to another licensed physician for interpretation and Plaintiff would not agree to provide Defendants’ expert with the raw data obtained by Plaintiff’s neuropsychologist for Defendants’ expert to interpret. In the reply brief, Defendants argue: “Defendants have been clear there is no refusal to provide the raw data to Plaintiff’s Neuropsychologist. Rather, this is a matter of Plaintiff expecting Defendants’ expert to breach his ethical duty to provide Plaintiff’s counsel the raw data when Plaintiff’s treating neuropsychologist is seemingly not willing to do the same.” (Reply at p.1.) Defendants also argue that their counsel does not need Plaintiff’s raw data directly, but rather they are requesting that Plaintiff’s raw data from his treating doctor be sent directly to their retained expert Dr. Fogel only if a limited examination is conducted. (Reply at pp.2-3.)

Defendants retained Travis G. Fogel, Ph.D., ABPP-CN, a clinical neuropsychologist, to perform the proposed DNE of Plaintiff. The DNE will includes a history-taking and observation of Plaintiff and then an administration of a number of standard, validated tests, including British Columbia Post-Concussion Symptom Inventory (BC-PSI), Structured Inventory of Malingered Symptomatology (SIMS), Hamilton Depression Inventory (HDI), State-Trait Anxiety Inventory (STAI; Form Y), and Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Defendants anticipate that the examination to be 6 hours long and not invasive or painful. Defendants require that Plaintiff’s neuropsychologist forward to Dr. Fogel the raw test data from the “Neuropsychological Assessment Battery” conducted on December 13, 2022 for review and interpretation, and for Plaintiff to sign an authorization to facilitate the exchange.

In opposition, Plaintiff states that he has not refused to and will submit to his DNE. He argues that the only dispute is Defendants’ refusal to turn over raw data obtained by Dr. Fogel to Plaintiff’s counsel. Plaintiff argues that Defendants’ alternatives to limit disclosure of raw data to another licensed physician or to have Defendants’ expert interpret Plaintiff’s neuropsychologist’s raw data are improper. Plaintiff argues that Defendants must provide the raw data to Plaintiff’s counsel subject to a protective order and if Defendants’ expert wishes to interpret Plaintiff’s prior raw data, they may do so by subpoenaing the records.

The parties do not dispute that Plaintiff should submit to a DNE. The only issue between the parties is whether and how raw data from the examinations should be shared. In opposition, Plaintiff relies on Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, arguing that the disclosure of raw test data falls within the broad discretion of the superior court. The Court will consider several relevant cases.

In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, Carpenter argued that he should be provided a copy of test questions and answers after his mental examination. (Carpenter, supra, 141 Cal.App.4th at 271.) The Court stated that “[w]hile there is no express statutory authority for Carpenter's position, neither is there statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the written test questions and answers.” (Id.) The Court discussed whether copyright protections and ethical issues barred production of the test questions and answers. With regard to copyright protection, the Court acknowledged that components of the MMPI test have been held protected by copyright law. (Id. at 272.) Based on the evidence provided, the Court found the evidence was insufficient to support a finding that providing a copy of the test would be a copyright infringement. (Id. at 273.) The publisher of the MMPI tests is Pearson, Inc. and the publisher of the WAIS tests, CVLT-II, and the Raven’s Standard Progressive Matrices is Harcourt Assessment, Inc. (Id.) The Court found that Pearson and Harcourt both suggested satisfactory means by which the test can be provided after a mental examination, whereby the “test questions and answers may be given to plaintiff's counsel or a designated psychologist, subject to a protective order strictly limiting the use and further disclosure of the material, and providing for other safeguards against access that would compromise the integrity and validity of the tests.” (Id. at 274.) Next, the Court discussed the examiner’s ethical and professional duties. (Id. at 275.) Under the Standards for Educational and Psychological Testing, examiners are responsible for protecting the security of test materials and psychologists have an obligation not to reproduce copyrighted materials (i.e., test items, ancillary forms, scoring templates, conversion tables of raw scores, and tables of norms) for routine test use without consent of the copyright holder. (Id.) The Court of Appeal remanded this latter issue to the trial court.

In Roe v. Superior Court (2015) 243 Cal.App.4th 138, the plaintiff sought copies of the written questions and her responses from her mental examination. In the trial court proceedings, the defendant argued that the examiner objected to the production of testing materials because they were subject to copyright law and defendant sought a protective order in the event the trial court ordered disclosure of the materials. (Roe, supra, 243 Cal.App.4th at 146.) The trial court ordered the doctor to comply with the statutory language of CCP § 2032.610, stated that the parties should wait and see how the examiner would comply, and told the parties to bring a subsequent motion if they believed she failed to comply with section 2032.610; the order did not mention copyright law. (Id. at 147.) Plaintiff argued that section 2032.610 implied the production of written testing materials and her answers by analogizing the section to Penal Code, § 1054.3(a)(1), which provides for the results of physical or mental examinations, which defendant intends to offer in evidence at trial. (Id.) However, the Court held that there was no legislative history supporting any finding that this would include “raw data.” (Id.) The Court of Appeal found that plaintiff’s undeveloped analyses that “results of all tests made” as stated in CCP § 2032.610 required defendants to deliver the written testing materials and plaintiff’s raw answers. (Id. at 149.)

In Randy’s Trucking, the trial court had granted the defendants’ motion to compel the mental examination of plaintiff and ordered defendants’ neuropsychologist to transfer raw data and an audio recording of the examination to plaintiff’s counsel subject to a protective order. (Randy’s Trucking, supra, 91 Cal.App.5th at 824.) The Court of Appeal acknowledged that while there was no statutory authority precluding a trial court from ordering the disclosure of test materials or data when ordering a mental IME, there was also no authority precluding a trial court from exercising its discretion to bar the disclosure of the written test questions and answers. (Id. at 834 [citing Carpenter].) “While Carpenter did not decide whether the examiner's ethical and professional obligations precluded disclosing the test questions and the examinee's answers to the examinee, the appellate court recognized the trial court has discretion to order the disclosure of such materials even if no statute authorizes it”—and this discretion was based on the trial court’s broad discretion in discovery matters. (Id. at 835.) The Court of Appeal discussed both Carpenter and Roe and found:

At best, Roe stands for the proposition that a trial court is not required to order the production of test materials or test data under section 2032.610. Under Carpenter, however, given the trial court's broad discretion in discovery matters, it retains the discretion to order the production of such materials. Moreover, although not developed by either party, since section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording. Where, as here, the trial court ordered the examiner to record the examination, the trial court had discretion to order the examiner to provide a copy to the examinee. Therefore, we conclude the trial court here had the discretion to order the production of the raw data and audio recording, as stated in its order.

(Id. at 837.) The Court of Appeal considered the doctor’s concerns about producing raw data, but noted that the doctor had not explained why a protective order would not ameliorate those dangers. (Id.) The Court weighed this against plaintiff’s right to take discovery and cross-examine defendants’ expert witnesses and determined that “[w]ithout the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist's opinion.” (Id. at 838.)

Standards 9.04 and 9.11 of the APA Ethical Standards state:

9.04 RELEASE OF TEST DATA

(a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, "Maintaining Test Security.")

(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.

9.11 MAINTAINING TEST SECURITY

The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.

(APA Ethical Standards, Standards 9.04 and 9.11 [emphasis added].) As summarized by the Court in Randy’s Trucking: “Standard 9.04 of the APA Ethical Standards provides that a patient may authorize the release of raw test data to the patient or other persons identified in the release, and Standard 9.11 of the APA Ethical Standards ‘only requires that psychologists make “reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations.” ’ ” (Randy’s Trucking, supra, 91 Cal.App.5th at 827.)

Based on Carpenter, Roe, and Randy’s Trucking, the Court declines to grant the motion outright, and thus it will not order the production of the “raw data” without a protective order. The motion will be granted subject to the parties entering into a protective order.

As indicated by Carpenter, the parties to this litigation are not the copyright holders of the administered tests. Rather, the copyright holders are the publishers of the tests themselves. According to Carpenter, every effort should be made to restrict access to the materials and testimony regarding the materials to the most limited audience possible, and preferably only to those individuals who are professionally qualified to use and interpret the tests; restrict copying of the test materials; restrict use of the test materials to only to that required for the resolution of the lawsuit; require prompt return and destruction of any copies made of the material at the conclusion of the proceedings, and sealing the record to the extent any portion of the materials are disclosed in pleadings, testimony, exhibit, or any other documents available for public inspection. (See Carpenter, supra, 141 Cal.App.4th at 274.) Here, entering into a protective order to protect against the public dissemination of the information should sufficiently guard against any copyright and privacy concerns.

As discussed above, trial courts have discretion to allow the production of raw test data of examinations such as Plaintiff’s neuropsychological examination and the proposed DNE. It appears that Defendants want Plaintiff to turn over her expert’s raw data, but they do not want to disclose their own expert’s raw data or will only do so by submitting it to a licensed professional. The Court finds that a protective order will adequately address each of the parties’ concerns. Further, the Randy Trucking court discussed whether counsel could obtain (or evaluate) test materials: “While defendants assert plaintiffs' attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.” (Id. at 838.)

Thus, the Court will grant the motion to compel Plaintiff to attend her DNE (which she does not dispute). The motion will be granted to a limited degree with respect to the production of raw data, such that the data of both Plaintiff’s expert and Defendants’ expert should be produced subject to a protective order. The protective order shall include the following terms:

(1) Confidential test materials shall be released only to professionally qualified individuals (which includes experts) who are able to obtain, use, and interpret them, as well as counsel in this matter for the purposes of cross-examination of the retained experts. The documents produced shall be marked as “confidential” under the protective order.

(2) The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders’ rights in the material.

(3) Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.

(4) The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings, testimony, exhibit, or any other documents available for public inspection.

(5) Any copy of the material shall be promptly returned to the parties’ counsel, respectively, and destroyed at the conclusion of the proceedings.

The Court finds that entering into a protective order and sealing documents will prevent the unlawful disclosure of test materials while also allowing each party, their counsel, and experts to review the documents.

CONCLUSION AND ORDER

Defendants’ motion to compel Plaintiff David Marcus King to appear for a defense neuropsychological examination conducted by Dr. Travis G. Fogel on a mutually agreeable date and time is granted, subject to the parties entering a protective order. Each of the parties’ experts are ordered to produce all test materials, the raw data of Plaintiff’s administered tests, and documents, medical records, and audio recordings (if any) relied upon by the mental examiner in reaching his conclusions in the report subject to a protective order. The protective order shall be entered as follows:

(2) The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders’ rights in the material.

(3) Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.

(4) The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings, testimony, exhibit, or any other documents available for public inspection.

(5) Any copy of the material shall be promptly returned to the parties’ counsel, respectively, and destroyed at the conclusion of the proceedings.

Defendant shall give notice of this order.

DATED: March 21, 2025 ______________________

John J. Kralik

Judge of the Superior Court