Judge: Lisa R. Jaskol, Case: 19STCV42318, Date: 2023-06-22 Tentative Ruling

Case Number: 19STCV42318    Hearing Date: June 22, 2023    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On November 21, 2019, Plaintiff Diane Schram (“Plaintiff”) filed this action against Defendants Zihe Deng (“Deng”) and Kingfisher Trading Co. Inc. (“KTC”) for motor vehicle negligence and general negligence. 

On February 18, 2020, Defendants filed an answer. 

On March 20, 2023, Defendants filed a Motion for Leave to Conduct Plaintiff’s IME to be heard on June 22, 2023. On June 7, 2023, Plaintiff filed an opposition. On June 14, 2023, Defendants filed a reply. 

Trial is currently scheduled for September 14, 2023. 

PARTIES’ REQUESTS 

Defendants request that the Court order Plaintiff to appear for an IME with Anita Hamilton at 3020 Old Ranch Parkway, Suite #306, Seal Beach California, 90740, on July 17, 2023, at 9:30 a.m.  Defendant’s papers identify Dr. Hamilton variously as a psychiatrist (Motion p. 2) and a neuropsychologist (Motion p. 7). 

Plaintiff requests that the Court issue the following orders: (1) the raw data from the testing portion of the examination shall be provided to Plaintiff’s attorneys without limitation, (2) Plaintiff may record her entire mental examination and provide a copy to her attorneys, and (3) the examiner hired by the defense must provide a list of the actual tests that will be administered to Plaintiff so that her attorneys may consider in advance whether the proposed tests are inappropriate, irrelevant, or abusive. 

LEGAL STANDARD 

          Code of Civil Procedure section 2032.220 provides: 

“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: 

“(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. 

“(2) The examination is conducted at a location within 75 miles of the residence of the examinee. 

“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first. 

“(c) A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. 

“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. 

“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.” 

Code of Civil Procedure section 2032.230 provides: 

“(a) The plaintiff to whom a demand for a physical examination under this article is directed shall respond to the demand by a written statement that the examinee will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. 

“(b) Within 20 days after service of the demand the plaintiff to whom the demand is directed shall serve the original of the response to it on the defendant making the demand, and a copy of the response on all other parties who have appeared in the action. On motion of the defendant making the demand, the court may shorten the time for response. On motion of the plaintiff to whom the demand is directed, the court may extend the time for response.” 

Code of Civil Procedure section 2032.310, subdivision (a) requires a party to obtain leave of court to obtain discovery by an additional physical exam or any mental exam. Code of Civil Procedure section 2032.310, subdivision (b) provides that a motion shall “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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  The court shall grant a motion for a physical or mental examination under section 3032.310 “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).) 

Code of Civil Procedure section 2023.030, subdivision (a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.”  Misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.”  (Code Civ. Proc., §2023.010, subd. (d),) 

DISCUSSION 

Plaintiff alleges that, as a result of the subject incident, she sustained a traumatic brain injury. Plaintiff disclosed that she has sought treatment from a psychologist, a neuropsychologist, a clinical neuropsychologist and a psychologist for her injuries stemming from the incident. Plaintiff has placed at issue potential injuries and symptoms that Dr. Hamilton could evaluate. The Court finds good cause to grant leave for an order requiring an independent medical examination. Plaintiff does not oppose the examination, subject to certain points of contention. 

A.      Plaintiff may record the examination using audio technology 

The parties disagree about whether Plaintiff may record the psychometric testing portion of the exam. Code of Civil Procedure section 2032.530, subdivision (a) provides: “The examiner and examinee shall have the right to record a mental examination by audio technology.” Accordingly, Plaintiff may exercise her statutory right to record the mental examination by audio technology. 

B.       The raw data must be disclosed to Plaintiff’s attorney 

The parties also disagree about whether the raw data may be directly disclosed to Plaintiff’s attorneys. Plaintiff relies on Randy's Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818 [308 Cal.Rptr.3d 645, 664] (Randy’s Trucking), in which the Court of Appeal held “the trial court did not abuse its discretion in ordering transmission of raw data . . . to plaintiffs’ attorney subject to a protective order, as plaintiffs demonstrated a need for the materials and the protective order would address the concerns about test security and integrity.”  

In Randy’s Trucking, the plaintiffs needed the raw data to “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, supra, 91 Cal.App.5th 818 [308 Cal.Rptr.3d at p. 661].) 

Here, Plaintiff asserts that she “has no less a need for discovery and no less a need for protection against abuse than the plaintiff in Randy’s Trucking.”  (Opposition, p. 5.)   

Pointing to concerns expressed by neuropsychologists about ethics and test security, Defendants argue the Court should not exercise its discretion to order release of the raw data to Plaintiff’s counsel. 

Having weighed the facts before the Court, the Court exercises its discretion to order release of the raw data to Plaintiffs’ attorney, subject to a protective order, because Plaintiff has demonstrated a need for the materials and a protective order would address concerns about test security and integrity. 

C.       Defendants must specify the tests to be administered 

Plaintiff requests that Defendants specify all tests that will be used during the examination. The Court agrees that Defendants must provide a complete list of potential examinations as required by Code of Civil Procedure section 2032.310, subdivision (a). 

D.      The hearing is continued 

The Court continues the hearing on the motion and orders Defendants to file a supplemental document listing all potential tests to be administered during the examination. Any tests not listed on the supplemental document will be barred from the examination.  If Defendants file timely supplemental papers, the Court intends to grant the motion with the rulings discussed above.

CONCLUSION 

Defendants Zihe Deng and Kingfisher Trading Co. Inc.’s Motion for Leave to Conduct Plaintiff Diane Schram’s Independent Medical Examination is CONTINUED to July 3, 2023, at 1:30 p.m. in Department 28 of the Spring Street Courthouse. 

Defendants are ordered to file supplemental papers listing all potential tests to be conducted during the examination by June 27, 2023. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.