Judge: Lee S. Arian, Case: 22STCV25330, Date: 2025-01-22 Tentative Ruling

Case Number: 22STCV25330    Hearing Date: January 22, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 17, 2023, Plaintiff filed this action, alleging that on February 12, 2022, she attended the "Super Bowl Experience" event at LA Live in Los Angeles. Plaintiff claims she fell while attempting to take a photograph with a football player cut-out, resulting in injuries to her head, left eye, face, neck, lower back, left hip, right arm, right elbow, and ribs. Plaintiff further alleges that she sustained a traumatic brain injury, causing headaches, memory issues, dizziness, balance problems, and vomiting.

Due to Plaintiff’s claims of cognitive impairments, Defendants sought a neuropsychological examination with their expert, Dr. Mi-Yeong Jo. The parties have met and conferred but have reached an impasse on the following issues regarding the mental examination:

1.  Whether Defendant needs to provide a finite list of tests to be performed.

2.  Whether the raw data should be released directly to Plaintiff’s counsel or only to Plaintiff’s retained neuropsychologist.

3.  Whether audio recording of the testing portion can be provided to Plaintiff’s counsel, or only to Plaintiff’s retained neuropsychologist.

In applying CCP § 2032.310 and in balancing Plaintiff’s need for relevant information against the protection of the integrity of the tests, the Court rules as follows: 

1.  Defendant must provide the name of the tests to be performed. The notice must state the time, place, identity, and specialty of the examiner, as well as the "manner, conditions, scope, and nature of the examination." (CCP § 2032.310(b).) The requirement to specify the "manner, conditions, scope, and nature of the examination" includes disclosure of the diagnostic tests and procedures to be utilized, such as x-rays, blood, and urine samples. (CCP § 2032.220(c).)

Defendant's demand for a neuropsychological examination lists numerous possible test measures, including but not limited to: Auditory Consonant Trigrams, Beck Anxiety Inventory, Beck Depression Inventory, Booklet Category Test, Boston Naming Test, Brief Visual-Spatial Memory Test-Revised, California Verbal Learning Test-II, Color Trails, Controlled Oral Word Association Test, Continuous Performance Test, Delis-Kaplan Tests of Executive Functioning, Finger Tapping, Grooved Pegboard Test, Hooper Visual Organization Test, Judgment of Line Orientation, Mini Mental Status Exam, Minnesota Multiphasic Personality Inventory, Neuropsychological Assessment Battery, Paced Auditory Serial Addition Test, Performance validity measures, Personality Assessment Inventory, Repeatable Battery for the Assessment of Neuropsychological Status, Rey Auditory Verbal Learning Test, Rey Complex Figure, Stroop Color Word Test, Symbol Digits Modalities Test, Test of Premorbid Functioning, Tower of London, Trail Making Test, Wechsler Abbreviated Scale of Intelligence, Wechsler Individual Achievement Test, Wechsler Adult Intelligence Scale, Wechsler Memory Scale, Wide Range Achievement Test, Wisconsin Card Sorting Test, and Woodcock-Johnson Tests of Achievement. Defendant also notes that additional measures may be added or substituted depending on Plaintiff's presentation on the day of the evaluation.

The Court recognizes that the nature of a mental examination requires a degree of flexibility, allowing the examiner to determine the necessity of certain tests during the evaluation. However, the Court also acknowledges the potential for abuse if Defendant provides an overly broad list of tests, thereby failing to give Plaintiff adequate notice of the actual tests to be performed. Here, Defendant has provided an extensive list of potential tests and allows for the addition of unspecified measure. The Court finds that Defendant's current notice is overly broad and does not adequately inform Plaintiff of the specific tests to be conducted. Defendant must revise the notice to provide a specific and narrowed list of tests that will potentially be administered.

2.  Raw data is to be provided to Plaintiff’s counsel for cross examination purposes and to challenge Defendant’s expert’s conclusions but subject to a protective order, requiring the materials to remain confidential and used solely for the purposes of this case to obviate any concerns over production of raw data. 

Restricting access to raw data solely to licensed neuropsychologists would force Plaintiff to prematurely disclose her expert’s identity simply to access crucial data, which could compromise Plaintiff’s litigation strategy. Allowing Plaintiff’s counsel direct access ensures that counsel retains control over the timing of expert disclosures, consistent with standard litigation practices where expert identification is typically delayed until later stages of discovery. Neuropsychologists are also costly to retain, creating a significant financial barrier for plaintiffs with limited means.  Given these considerations, the Court finds that allowing Plaintiff’s counsel access to the raw data outweighs any interest in limiting it exclusively to another expert. The Court therefore orders that raw data from the testing portion be provided directly to Plaintiff’s counsel, subject to a protective order to maintain confidentiality and restrict its use to this case. 

3.    CCP § 2032.530(a) expressly permits the examinee and/or the examiner to audio record the examination in its entirety; however, it does not provide for or preclude the disclosure of such audio recordings. The disclosure of such material remains within the sound discretion of the trial court. (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 835.) The Court, in its discretion, finds that the use of the recordings for case preparation and cross-examination outweighs any interest in having it released only to another expert and therefore orders audio recording of the testing portion to be provided to Plaintiff’s counsel, also subject to a protective order. 

Plaintiff is correct that before filing a motion to compel Plaintiff's mental examination, Defendant was first required to obtain leave of Court. (CCP 2032.310(a)), which Defendant failed to do. On this basis, the Court denies the motion. However, the Court does find good cause for the mental examination, as Plaintiff alleges a traumatic brain injury. The parties are ordered to meet and confer on the specifics of the mental examination, subject to the Court's ruling above. 

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’s 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.