Judge Lee S. Arian, Case Number: 21STCV07334, Date: 2024-01-16 Tentative Ruling

On February 24, 2021, Plaintiff Byron Merlos (“Plaintiff”) filed this dangerous condition negligence against Defendants.

On October 25, 2023, Defendant Herc Rentals, Inc. (“Defendant”) filed the instant motion to compel Plaintiff to submit to mental examination with Dr. J. Vincent Filoteo. Plaintiff opposes, but only as to the conditions of the examination.

A defendant who seeks to conduct a mental examination of plaintiff must file a motion and “obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).) Such a motion must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” (Code Civ. Proc., § 2032.310, subd. (b).) The court may grant such a motion “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (b).) A showing of good cause generally requires that “the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) A mental examination is generally appropriate only when a plaintiff alleges continuing emotional distress or mental injury and so places his or her mental or emotional condition “in controversy” in the action. (Ibid.)

Here, Plaintiff agrees to submit to a mental examination, thus conceding that there is good cause for a mental examination. Plaintiff only opposes on the basis of the conditions of the exam.

“If a party submits to a . . . mental examination . . . that party has the option of making a written demand that the party at whose instance the examination was made 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.” (Code Civ. Proc., § 2032.610, subd. (a)(1).) “If the option under [Code Civ. Proc. § 2032.610(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.” (Code Civ. Proc., § 2032.610, subd. (b).)

A court has discretion to order the production of the raw data from a mental examination. (Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, 837.)

“There is no statutory authority . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” (Randy’s Trucking, Inc. v. Superior Court of Kern County, supra, 91 Cal.App.5th 818, 834.) A plaintiff has a “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.” (Id. at p. 838.) Without access to raw data, a plaintiff “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.” (Ibid.)

The Court finds that a discussion of Randy’s Trucking, Inc. v. Superior Court of Kern County, supra, 91 Cal.App.5th 818 is appropriate. In Randy’s Trucking, plaintiff sustained injuries in a vehicle accident and during discovery claimed that she suffered a severe traumatic brain injury. The defendants thereafter moved for an order compelling plaintiff to undergo a mental examination by their neuropsychologist. The defendants moved for such an order after plaintiff refused to proceed with the examination unless their attorney received all raw data and test information from the mental examination. The trial court granted defendants’ motion to compel; however, the trial court denied defendants’ request to limit the transmission of raw data and test materials to a licensed psychologist or neuropsychologist. Instead, the trial court ordered defendants’ neuropsychologist to transfer the raw data and an audio recording of the examination to plaintiff’s attorney pursuant to a protective order.

Thereafter, defendants sought a petition for writ of mandate to direct the trial court to modify its order to require the transmission of the raw data and audio recording to plaintiff’s retained psychologist or neuropsychologist as opposed to plaintiff’s attorney. The defendants asserted that: (1) the trial court erred in ordering transmission of raw data and audio recordings to plaintiff’s counsel because those items are not among the materials set forth in Code Civ. Proc. § 2032.610(a); and (2) psychologist confidentiality prohibited disclosure of test materials. In rejecting defendants’ contentions, the Randy’s Trucking court held that there is no statutory authority prohibiting a trial court from ordering the disclosure of test materials or test data when ordering a mental examination. (Randy’s Trucking, Inc. v. Superior Court of Kern County, supra, 91 Cal.App.5th 818, 834.) Moreover, the court opined that given the trial court’s broad discretion in discovery matters, the trial court retained jurisdiction to order the production of materials and, in doing so, the trial court did not abuse its discretion. (Id. at p. 837.)

Defendant argues that the disclosure of raw data to Plaintiff’s counsel would violate Dr. Filoteo’s ethical obligations, copyright and trademarks, and potentially endanger test security. The Court finds that without access to such raw data, Plaintiff would not be able to scrutinize the data collected by Dr. Filoteo and prepare for cross-examination if the case goes to trial. Also, the same argument that Defendant asserts here in opposition to disclosure of raw data was rejected by the Court in Randy’s Trucking. Further, Defendant had already stipulated to this production for a cancelled medical examination which the Court signed as an order. (Lallande Decl., Exh. A.)

Thus, the Court exercises its discretion and GRANTS Plaintiff’s request that the raw test data from Plaintiff’s neuropsychological examination be disclosed to Plaintiff’s counsel. This will include raw data of any testing and test questions.

While the Court finds that disclosure of raw test data from Plaintiff’s neuropsychological examination should be disclosed to Plaintiff’s counsel, the Court finds that such disclosure is warranted pursuant to a protective order. (Randy’s Trucking, supra, 91 Cal.App.5th 818, 828.)

This Court orders the following protective order—identical to that which was issued in Randy’s Trucking, supra, 91 Cal.App.5th 818, 828—be entered in this matter:

“Plaintiff’s counsel, defense counsel and all experts, consultants and the employees of the respective firms shall maintain the security of all raw data, test materials, and other medically private information obtained during the examination. However, such raw data, test materials and other medically private information may be disclosed to plaintiff’s counsel, defense counsel and all experts, consultants and employees of the respective firms for use in this case. Such materials and data may also be shown to the trier of fact at the time of trial, or such other time as may be necessary for the adjudication of the above-captioned matter. These materials may be used for no other purpose, may not be disseminated to any other party and the parties shall take reasonable steps to maintain the confidentiality of the above-identified materials.” The parties are also ordered to “destroy the above-identified materials at the cessation of this case, in accordance with the California Rules of Professional Conduct.”

Counsel may seek to add or modify the above terms by stipulation or motion; however, pending a protective order from the parties concerning disclosure, the above protective order shall apply.

Under Code of Civil Procedure section 2032.530, “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Thus, Plaintiff has the right to record the mental examination. Again, any ethical concerns will be resolved by the parties entering into a protective order.

The Court GRANTS Defendant’s motion compelling the mental examination of Plaintiff with the above discussed conditions.

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.

Hon. Lee S. Arian

Judge of the Superior Court