Judge: Kenneth J. Medel, Case: 37-2019-00068512-CU-PA-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  PI/PD/WD - Auto Discovery Hearing 37-2019-00068512-CU-PA-CTL ALASALI VS CATLIN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/22/2023

PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DEFENSE EXPERT DR. DELIA MARIA SILVA'S RAW DATA RELATED TO NEUROPSYCHOLOGICAL TESTING IS GRANTED SUBJECT TO THE PROTECTIVE ORDER SET FORTH BELOW.

This is a motor vehicle case. Plaintiff alleges she was driving a vehicle northbound on SR-125, when her vehicle was struck in the rear by a vehicle being operated by Defendant Catlin, resuling in a number of injuries including injuries to her neck, upper back, low back, and head. Plaintiff also alleges a number of symptoms including post traumatic stress and other psychological issues. A psychologist has (Dr.

Franzosi) has concluded that Plaintiff Alasali suffers from a mild level of depression, a low level of anxiety, abnormal sleep patterns, and 'a psychological trauma after a motor vehicle accident.' He concluded - post-injury emotional and physical states seemed to be at a significantly sub-normal level of functioning as compared to her functionality prior to the accident.

On 1/20/23, the Court granted Defendant's motion for a psychological evaluation. The Court's order stated the following: 'The Court also expects counsel to comply with all codes, specifically related to the production of the results of any examination to opposing counsel following the examination.' Dr. Silva conducted a neuropsychological evaluation of Plaintiff on March 20, 2023.

Plaintiff argues that Defendant did not produce all records and the Data related to Plaintiff Nancie's neuropsychological evaluations directly to Plaintiff's counsel. Defendant produced to plaintiff a written report in which Dr. Silva states her findings and conclusions. Kashani Decl. ¶ 4, Ex. B. Plaintiff now moves to compel production of all the raw data related to the neuropsychological testing which are the basis of Dr. Silva's ultimate opinions. Kashani Decl., ¶ 5. Defense seems agreeable to producing the raw data to plaintiff's expert, but not to plaintiff's counsel.

Under the statutory scheme allowing the court to order a mental examination, the party that submits to the examination 'has the option of making a written demand that the party' seeking the examination deliver to the demanding party '[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.' (§ 2032.610, subd. (a)(1).) If the option is exercised, a copy of the requested reports must 'be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.' (Id., subd.

(b).) As argued by the defendant in opposition to this motion, raw data is not among the materials listed under the demand provided in section 2032.610, subdivision (a). Defendants contend that raw test data of the examination are not listed in the statute, plaintiffs could not demand the production of those items and the trial court could not order them transmitted to plaintiffs' attorney.

Courts have agreed with the premise that raw data is not included within section 2032.610(a). See Randy's Trucking, Inc. v. Superior Ct. of Kern Cnty., 91 Cal. App. 5th 818 (April, 2023), review denied (Aug. 30, 2023); Carpenter v. Sup. Ct. (2006) 141 Cal.App.4th 249, 271. However, the Courts have held Calendar No.: Event ID:  TENTATIVE RULINGS

3011701  37 CASE NUMBER: CASE TITLE:  ALASALI VS CATLIN [IMAGED]  37-2019-00068512-CU-PA-CTL that the Court has discretion independent of the statutory framework to order production of the raw data.

'There is no statutory authority, however, precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.' Randy's Trucking, supra, 91 Cal.App.5th at 834, citing Carpenter, supra, 141 Cal.App.4th at p. 271.

The appellate court recognized resolution of this issue was within the trial court's discretion. In Carpenter, the decision to deny access was based upon an erroneous decision by the trial court regarding copyright law. The appellate court found the evidence before the trial court was insufficient to support the finding that providing a copy of the tests would be a copyright infringement, as the evidence did not indicate which test the examiner would use, the terms by which the examiner came into possession of the tests, or any limitations on their disclosure. (Id. at p. 273) However, the Court remanded the case to the trial court to exercise discretion in this regard.

Randy's Trucking went further and reached the issue. In Randy's Trucking, a school bus driver and passenger filed suit against driver of tractor-trailer and his employer, arising out of injuries sustained when tractor-trailer collided with bus. The Trial Court granted defendants' motion to compel examination of bus driver by neuropsychologist of their choice, but ordered transmission to bus driver's counsel raw date and audio recording of examination, subject to protective order. Defendants filed motion for reconsideration, after neuropsychologist recused herself (claiming conflict with ethical requirements).

The Fifth Circuit in Randy's Trucking ultimately affirmed the trial court order requiring production of the raw data and the audio recording to plaintiff's counsel.

The Court first agreed with Carpenter that the Court had discretion. The Court affirmed the trial court in exercising its discretion.

The Court found that the need for discovery and cross-examination compelled production of the material. 'Weighed against this evidence is plaintiffs' right to take discovery and cross-examine defendants' expert witnesses, which includes being able to examine the expert on the matter upon which the expert's opinion is based and the reasons for that opinion. (Evid. Code, § 721, subd. (a).) Without 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.' Randy's Trucking, Inc., 91 Cal. App. 5th at 838.

As in this case, Defendants in Randy's Trucking contended that the plaintiffs' need for these materials is outweighed by the need to protect the examiner from violating her ethical and professional obligations.

The Court rejected this argument: 'The only evidence on this issue that was before the trial court was Dr.

Victor's declaration on the 'nature, scope and conditions of the proposed neuropsychological examination.' Dr. Victor stated she would agree to audio recording of clinical interviews only if she recorded the interview herself and sent a copy to the plaintiffs' licensed psychology expert, and she would only provide 'raw test data, test materials, copyrighted publications, or documents containing proprietary information' to a licensed psychologist.

The Court found that the expert 'did not explain why a protective order would not ameliorate those dangers. 'She also did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs' attorney subject to a protective order.' In this case, defendants make arguments in the Memorandum of Points & Authorities that the disclosure violates specific ethical duties. Specifically, defendants cite to California Business & Professions Code (2023) § 4992.3, which states: '...The board may deny a license or a registration, or may suspend or revoke the license or registration of a licensee or registrant if he or she has been guilty of unprofessional conduct. Unprofessional conduct includes, but is not limited to, the following: (r) Reproduction or description in public, or in any publication subject to general public distribution, of any psychological test or other assessment device, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the test or device. A licensee shall limit access to that test or device to persons with professional interest who are expected to safeguard its use....' Defendants also rely on the Official Position Statement of the National Academy of Neuropsychology, which opines in part, '...[U]ncontrolled release of test procedures to non-psychologists, via stenographic, audio or visual recording potentially jeopardizes the validity of these procedures for future use [...]should a test become invalidated through exposure to the public domain, redevelopment of a replacement is a costly and time consuming endeavor.' Calendar No.: Event ID:  TENTATIVE RULINGS

3011701  37 CASE NUMBER: CASE TITLE:  ALASALI VS CATLIN [IMAGED]  37-2019-00068512-CU-PA-CTL While there are concerns as expressed in the above rules, there is no indication how these concerns could not be ameliorated through a protective order. In this case, there has been no declaration submitted by the examiner at all to provide any evidence. Defendant argues based on the authorities alone. It would seem that the conclusion expressed in Randy's Trucking would be applicable here.

The Court in Randy's Trucking also rejected the position that production to the expert alone is sufficient.

'Defendants argue it is sufficient to transmit the raw data and audio recording to plaintiffs' retained expert. But as plaintiffs assert, they should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, 'the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.'' Given the above authority, the Court exercises its discretion to allow the production of the raw data, notes and testing materials to plaintiff's attorney subject to a protective order. The materials are available only for limited purposes in connection with this case and are to be considered only by the attorney and agents for preparation of this litigation. Further, all documents produced, and any copies, are to be returned to defense counsel at the conclusion of the proceeding and the Court also orders any documents filed with the Court to be sealed to the extent any of the materials are disclosed in pleadings, testimony or other documents. See Carpenter, supra, 141 Cal.App.4th at p. 274.

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