Judge: Kerry Bensinger, Case: 20STCV16850, Date: 2023-04-03 Tentative Ruling

Case Number: 20STCV16850    Hearing Date: April 3, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On September 3, 2020, plaintiff Sonia Gonzalez-Lopez (“Plaintiff”) filed this action against defendants Martin Manuel Rubaclava and C.E. Mechanical, Inc. (collectively, “Defendants”) arising from a motor vehicle collision occurring on or about October 1, 2018.  

As stated in her discovery responses and testimony, Plaintiff suffers from PTSD, anxiety, and memory loss as a result of the automobile accident.  (Rix Decl., ¶¶ 2, 3, Exs. A, B.)  Defendants served a notice for a neuropsychological exam with Taylor Kuhn, Ph.D., for October 11 and October 13, 2022.  (Rix Decl., ¶ 4, Ex. C.)  Plaintiff agreed to the neuropsychological examination subject to certain conditions, one of them being that Dr. Kuhn produce his raw data from the examination.  Defendant argues Dr. Kuhn’s ethical obligations require disclosure of raw data only to qualified neuropsychologists.  Plaintiff disagrees and maintains that Dr. Kuhn should produce his raw data to Plaintiff’s counsel.  (Id.)  The parties could not resolve this issue at an informal discovery conference.

On November 2, 2022, Defendants filed the current motion for leave to conduct the neuropsychological exam of Plaintiff.  Plaintiff filed an opposition and Defendants replied.  Both parties filed supplemental briefs.

II.          LEGAL STANDARD

Code Civ. Proc., § 2032.610 states:

(a) If a party submits to, or produces another for, a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210), an order of court under Article 3 (commencing with Section 2032.310), or an agreement under Section 2016.030[1], that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party:

(1) 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.

(2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.

(b) If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.(c) In the circumstances described in subdivision (a), the protection for work product under Chapter 4 (commencing with Section 2018.010) is waived, both for the examiner's writings and reports and to the taking of the examiner's testimony.

Pursuant to the foregoing, a party can agree to submit to a mental examination or the court can order the examination.  If the parties cannot agree upon the terms, the party seeking the examination must obtain leave of court.  (Code Civ. Proc., § 2032.310, subd. (a).)  The motion to compel a mental examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the person who will perform the examination.  (Code Civ. Proc., § 2032.310, subd. (b).)  The court may grant the motion and order the adverse party to submit to a mental examination if (1) the adverse party’s mental condition is “in controversy,” and if (2) there is “good cause” for the mental examination.  (Code Civ. Proc., §§ 2032.020, subd. (a), 2032.320, subd. (a); see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258-259 (Carpenter).)  A plaintiff’s mental condition is “in controversy” when the plaintiff alleges a mental injury and the defendant denies the mental injury or the extent of the mental injury.  (Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341.) 

III.        DISCUSSION

The parties could not agree upon the terms of the mental examination.  Consequently, Defendants seeks an order compelling Plaintiff to appear at a neuropsychological examination with Dr. Kuhn on April 6, 2023.  The parties agree on several points: (1) Plaintiff has placed her mental condition at issue; (2) a mental examination is warranted; and (3) Dr. Kuhn should produce the raw data.[2]   

The only dispute between the parties is to whom and how the raw data is to be disclosed.  Defendant argues that because of ethical constraints placed upon the neuropsychologists, the raw data can only be produced to a neuropsychologist retained by Plaintiff.  Plaintiff disagrees and argues that a protective order is sufficient to alleviate the ethical concerns.

Neither Carpenter nor Roe is helpful on this issue.  In Carpenter, the Court of Appeal held that, based upon the concession of the copyright holders, the “secrecy, validity and integrity” of the tests could be protected by a protective order.  (Carpenter, supra, 141 Cal.App.4^th at 274.)  The Court of Appeal remanded the matter to the trial court to consider whether disclosure would “run afoul of the examiner’s ethical and professional obligations.”  (Id., at p. 275.)  Roe does not discuss the ethical and professional issues.      

 Dr. Kuhn states that disclosure of the raw data from Plaintiff’s examination raises ethical issues.  (Kuhn Decl., ¶ 2.)  He further indicates that “Division 40 of the American Psychological Association covering Neuropsychology clearly states that the test data should be released only to trained neuropsychologists or, if required, under a protective order into a sealed record.”  (Kuhn Decl., ¶ 4.) 

The Court finds that after balancing the equities, a protective order suffices to protect the interests at stake.  Being able to understand the bases for Dr. Kuhn’s opinion, in part, requires an understanding of the raw data – the tests taken and the answers given; in other words, the foundation for the doctor’s opinions.  Without such information it’s like being given the answer 4, without knowing if the math involved (3 + 1) or (2 + 2) or (0 +4) or (1+1+1+ +1) and the mathematical equation may make a difference.  Effective cross-examination requires as much.  On the other hand, Dr. Kuhn raises concerns that disclosure of the tests and the test results may impugn the ongoing integrity of the examination process.  Notably, however, Dr. Kuhn recognizes that the applicable ethical rules provide for disclosure, if required, under a protective order.  That being the case, the Court issues the following protective order:  

At the conclusion of the neuropsychological exam, Dr. Kuhn is to provide a copy of the raw data generated to Plaintiff’s counsel within 30 days after service of the demand, or within 15 days of trial, whichever is earlier, pursuant to CCP section 2032.610(b).  Plaintiff and Plaintiff’s counsel are to use the raw data and all test results solely for the purpose of this law suit, and the raw data and test results shall be shared only with Plaintiff, Plaintiff’s counsel, and retained neuropsychological experts and/or consultants in this law suit, who shall be bound by the terms and conditions of this Order, and that upon conclusion of this matter, all such materials shall be destroyed.  Use of any such information in depositions, in open court, or in court filings, shall be subject to sealing orders.  Prior to using the protected materials at trial, or in open court, counsel shall alert the bench officer to the confidential nature of the materials.  In no event shall records be made available or the information relating to such records (the raw data) be made available or shared in any manner (verbally, electronically, or in document form) with anyone other than as permitted above. 

IV.         CONCLUSION

The motion is GRANTED and the protective order issued.   

Plaintiff is ordered to submit to a neuropsychological examination with Taylor Kuhn, Ph.D., on April 6, 2023, at 9:00 a.m., at the offices of Dr. Kuhn, located at 2811 Wilshire Boulevard, Suite 960, Santa Monica, CA 90403. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

                                                                    Dated this 3rd day of April 2023