Judge: Lee S. Arian, Case: 22STCV07909, Date: 2023-12-11 Tentative Ruling

Case Number: 22STCV07909    Hearing Date: December 11, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Glendale Columbus, LLC and Trumark Services, Inc. (“Defendants”)

RESPONDING PARTY: Plaintiff Adrineh Esaian (“Plaintiff”)

I.            INTRODUCTION

This action arises from a slip and fall that occurred on October 5, 2020. On March 4, 2022, Plaintiff Adrineh Esaian (“Plaintiff”) filed a complaint against Defendants Glendale Columbus, LLC and Trumark Services, Inc. (“Defendants”), as well as Does 1 to 30, alleging causes of action for: (1) General Negligence; and (2) Premises Liability.   

On June 1, 2023, Defendants filed a cross-complaint against Aden Ghazarian, Homayek Ghazarimoghaddam, Anjel Eissian, and Roes 1 through 50, alleging causes of action: (1) Implied Indemnity; (2) Equitable Indemnity; (3) Express Indemnity; (4) Breach of Contract; (5) Contribution; (6) Apportionment of Fault; and (7) Declaratory Relief.

The Instant Motion

          On August 24, 2023, Defendants filed a motion for an order compelling Plaintiff to attend a neuropsychological examination with J. Vincent Filoteo, Ph.D., on October 16, 2023 to commence at 9:00 a.m. at 12100 Wilshire Blvd., 8th Floor, Beverly Hills, CA 90211 (the “Motion”).[1] The Motion is made on the grounds that Plaintiff has placed her neuropsychological condition at issue and Defendants are therefore entitled to an independent medical examination.

          In support of the Motion, Defendants contend that good cause exists to compel Plaintiff to attend a neuropsychological evaluation because she has placed her neuropsychological condition at issue. Defendants also contend that Plaintiff has no grounds to demand conditions that seek to violate the ethical and professional obligations of Defendants’ retained neuropsychological expert in exchange for compliance with the evaluation at issue. Defendants contend that Plaintiff refuses to allow a neuropsychological evaluation unless Defendants agree to require their retained neuropsychological expert to produce the raw neuropsychological test results directly to Plaintiff’s attorneys.

          On November 22, 2023, Plaintiff filed and served an opposition to the Motion. Plaintiff contends that she agrees to a neuropsychological examination; however, Plaintiff asserts that her and her attorneys are entitled to all raw test data and findings.[2] Moreover, Plaintiff contends that she should be permitted to audio record the examination. On December 4, 2023, Defendants filed and served a reply brief.

          Plaintiff indicates that she “is not opposed to an examination . . . [and] simply requests that which she is lawfully entitled to, that the audio recording and raw testing data be given directly to Plaintiff’s counsel subject to a protective order." (Opposition, 12:9-11.)

          Thus, the sole issues to be addressed in this ruling are whether: (1) Defendants have shown good cause to warrant a neuropsychological examination of Plaintiff; (2) the Court should allow Plaintiff’s counsel to receive raw test data; and (3) Plaintiff may audio record the entire neuropsychological examination.  

II.      LEGAL STANDARD

          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(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(b).) The court may grant such a motion “only for good cause shown.” (Code Civ. Proc. § 2032.320(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. (Code Civ. Proc. § 2032.020(a); Vinson v. Superior Court, supra, 43 Cal.3d at p.840.)

“An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc. § 2032.320(d).) “The court is to describe in detail who will conduct the examination, and the diagnostic tests and procedures to be employed. The way to describe these diagnostic tests and procedures—fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

The party who seeks to compel a mental examination bears the burden to specify the diagnostic tests and procedures to be conducted. (Carpenter v. Superior Court, supra, 141 Cal.App.4th 249, 267.)¿“Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant.¿ The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers.¿ The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.”¿(Ibid.)¿ 

III.    DISCUSSION

Meet and Confer

          The Court finds that the meet and confer requirement has been met pursuant to California Code of Civil Procedure, Section 2032.310(b).

Issue No.1: Good Cause    

          Counsel for Defendants, Nicholas Paulos, Esq. (“Paulos”), declares that Plaintiff’s subpoenaed medical records indicate that Plaintiff has a history of psychological symptoms that predates the subject incident, including depression, major depressive disorder, and a referral for mental health counseling. (Id., ¶ 4.) Plaintiff reported symptoms such as confusion, disorientation, cognitive difficulties, dizziness, loss of balance, memory loss, anxiety, and depression. (Id., ¶ 4 and Exhibits B-C.) Plaintiff has also reported recent neurological and neuropsychological issues which she relates to the subject incident. (Id.) One provider that Plaintiff saw for treatment related to this action diagnosed Plaintiff with traumatic brain injury. (Id.) Plaintiff also alleges that she suffers from constant headaches and occasional dizziness. (Id.) Counsel declares that if Defendants are not allowed to conduct a neuropsychological examination of Plaintiff, they will be unduly and irreparably prejudiced. (Id., ¶ 5.) Counsel attached a list of standard testing that may be administered by Dr. Filoteo to Plaintiff during the proposed neuropsychological examination of Plaintiff. (Id., ¶ 6 and Exhibit D at Exhibit 1.)

          The Court finds that Defendants have made a showing of good cause to justify a neuropsychological examination of Plaintiff. In discovery responses, Plaintiff is asserting various physical and mental ailments that she suffers from due to the subject incident. Plaintiff has therefore put her mental and emotional state at issue in controversy.   

          The Court will now address whether disclosure of raw data to Plaintiff’s counsel is warranted, and whether Plaintiff is entitled to audio record the entire examination.

Issue No.2: Disclosure of Raw Test Data

          “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(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(b).)

Code Civ. Proc. § 2032.530(a) grants the examinee the right to record a mental examination by audio technology and implies that the examinee can retain a copy of the recording.  (Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, 837.)  A court has discretion to order the production of the raw data and audio recording from a mental examination.  (Ibid.)

“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 and audio recordings, 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.)

Discussion of Randy’s Trucking

The Court finds that Randy’s Trucking, Inc. v. Superior Court of Kern County, supra, 91 Cal.App.5th 818 is instructive. 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.)

Analysis

J. Vincent Filoteo, Ph.D. (“Filoteo”), who is Defendants’ retained neuropsychologist, provides a declaration in support of the Motion. Filoteo has misgivings about Defendants providing the raw data and testing material directly to Plaintiff and Plaintiff’s counsel. (Filoteo Decl., ¶ 4.) Filoteo attests that disclosure of such information threatens both the validity and integrity of the neuropsychological testing, as well as goes against his ethical and professional guidelines as set forth by the American Psychological Examination (“APA”) and National Academy of Neuropsychology (“NAN”). (Id.)  Filoteo argues that only individuals with proper training and the applicable professional and ethical restraints should have access to the materials in question. (Id., ¶ 6.) Prior knowledge of test item contents and procedures would defeat the intended purpose of the test. (Id., ¶ 7.) Filoteo argues that to the extent that cognitive and psychological tests are placed in the hands of personal injury attorneys, future clients could be coached on how to take and pass performance validity tests, and how to convincingly score lower than their true ability level on standard cognitive tests. (Id., ¶ 8.)

Filoteo states that providing the raw data, audio recording of the test administration, or testing materials to Plaintiff or Plaintiff’s counsel directly violates his ethical and professional obligations. (Id., ¶ 11.) According to the APA and NAN, the actual tests, answers, interpretative materials used, and raw data should only be released to another licensed clinical psychologist to maintain test security. (Id.) Filoteo declares that allowing non-psychologists to receive psychological test materials, including test questions and test stimuli, and audio recording of the test administration, poses a serious threat of widespread social harm by compromising test security. (Id., ¶ 24.) Filoteo indicates Plaintiff’s counsel’s non-compliance with protective orders requiring the return of data sheets to the licensed psychologist at the conclusion of trial. (Id., ¶ 20.) Filoteo states that protective orders do not appear to be enforced or enforceable, and he does not view them as an adequate method to protect psychological tests. (Id.)

Plaintiff’s counsel, Edwin Hong (“Hong”), declares in opposition to the Motion that the vast majority of the examinations and testing materials are available in their entirety, online, and for free. (Hong Decl., ¶ 4 and Exhibit A.) Hong also declares that Filoteo’s assertion that he lacks the professional training or experience to evaluate the raw data is a meritless assertion. (Id., ¶ 6.)

          Here, exercising its discretion, the Court finds that it is appropriate to allow disclosure of the raw test data and results to Plaintiff’s counsel. The facts in this action are similar to those in Randy’s Trucking. Vincent Filoeto, Ph.D., has requested that raw test data and results not be disclosed to Plaintiff’s counsel due to ethical concerns and protecting the integrity of the testing process. However, without access to raw test data and results, the Court finds that Plaintiff would not be able to scrutinize the data collected by Dr. Filoeto and prepare for cross-examination if this case goes to trial.  Moreover, the same arguments Defendants raise here in opposition to disclosure of raw data and test materials were rejected by the court in Randy’s Trucking.

The Court GRANTS Plaintiff’s request that the raw test data and results from Plaintiff’s neuropsychological examination be disclosed to Plaintiff’s counsel.

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

This Court orders the following protective order—that 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.

Issue No.3: Audio Taping the Entire Examination

          Where a mental examination occurs, “[t]he examiner and examinee shall have the right to record a mental examination on audio tape.”  (Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750.) The main purposes of audiotaping a mental examination “are to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee’s interests are protected (especially since the examinee’s counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court.” (Ibid.)  Code Civ. Proc. § 2032.530(a) grants the examinee the right to record a mental examination by audio technology and implies that the examinee can retain a copy of the recording.  (Randy’s Trucking, Inc. v. Superior Court of Kern County, supra, 91 Cal.App.5th 818, 837.)  A court has discretion to order the production of an audio recording from a mental examination.  (Ibid.)

          Here, neither the moving nor reply papers address Plaintiff’s request to record the entire neuropsychological examination. The Court finds that Plaintiff has the right to record the mental examination pursuant to Code Civ. Proc. § 2032.530(a).  Allowing Plaintiff to audio record the mental examination will ensure that the examiner does not overstep any bounds set by this Court and ensures that Plaintiff’s interests are protected.

IV.     CONCLUSION

The Court GRANTS Defendants’ motion for an order compelling Plaintiff to attend a neuropsychological examination.   

The Court GRANTS Plaintiff’s request that the raw test data and results from Plaintiff’s neuropsychological examination be disclosed to Plaintiff’s counsel.

The Court GRANTS Plaintiff’s request to audio record the entire neuropsychological examination.

Plaintiff Adrineh Esaian is ORDERED to appear for neuropsychological examination. The neuropsychological examination will be conducted by Vincent Filoteo, Ph.D., on Monday, January 8, 2024 at 9:00 AM at 12100 Wilshire Blvd., 8th Floor, Beverly Hills, CA 90211.

The Court references Defendants’ Proposed Notice of Neuropsychological Examination in setting forth the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination, as well as who is performing the examination. (Paulos Decl., Exhibit D.) The purpose of the examination will be for determining, evaluating and assessing Plaintiff’s cognitive condition, psychological condition, claims of injury, residual complaints, damage and causation issues, and to prepare for testimony in this action. All conditions and injuries placed in issue by Plaintiff, and all claims of continuing, ongoing or permanent problems will be within the scope of the examination, along with claims for future care.

The neuropsychological examination will begin at 9:00AM and will be no longer than seven hours total without breaks. Plaintiff is to bring all medications she may currently be taking, as well as reading glasses, if she uses them and will need them during the examination. The neuropsychological examination shall be conducted by Dr. Vincent Filoteo, a Licensed Clinical Psychologist, whose specialty is Neuropsychology to determine the scope and extent of Plaintiff’s injuries.  

The neuropsychological examination will consist of an oral history and personal interview, and Plaintiff’s discussion regarding the incident will be limited to describing the incident in general terms. None of the testing will be painful, protracted, intrusive, or substantially different in kind and character from those utilized by Plaintiff’s healthcare providers. Dr. Filoteo, in his professional discretion, will determine which neuropsychological test will be necessary to conduct a proper evaluation of Plaintiff and some or all of the following tests may be administered to Plaintiff: Tests of Memory Malingering; Color Trails; Hooper Verbal Learning Test (HVLT); Wechsler Adult Intelligence Test-IV (WAIS-IV) which includes Coding, Symbol Search, Digit Span, Similarities, Comprehension, Blocks, Visual Puzzles, and Matrix Reasoning; b Test; Wechsler Memory Scale—IV (WMS-IV) which includes Visual Reproduction; Rey Complex Figure Test (RCFT); Wisconsin Card Sorting Test (WCST-64); Dot Counting Test; Beck Depression Inventory (BDI-2); Beck Anxiety Inventory (BAI); PTSD Checklist-5 (PCL-5) and MMPI-3. (See Paulos Decl., Exhibit D at Exhibit 1.)

Within 30 days of the examination, Defendants will provide to Plaintiff’s counsel a copy of detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examination. This will include raw data of any testing and test questions.

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.

Moving party is ordered to give notice of this ruling.

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 11th day of December 2023