Judge: Lisa R. Jaskol, Case: 22STCV20995, Date: 2024-08-15 Tentative Ruling
Case Number: 22STCV20995 Hearing Date: August 15, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On June 28, 2022, Plaintiff Ramona Lopez (“Plaintiff”) filed this action against Defendants Smog Express (“Smog Express”), Exxon Mobil Corporation (“Exxon”), United Brothers, Inc. (“United”), and Does 1-50 for general negligence and premises liability.
On August 1, 2022, Smog Express filed an answer.
On November 3, 2022, the Court dismissed Exxon without prejudice at Plaintiff’s request.
On May 21, 2024, Smog Express and United (“Defendants”) filed (1) a motion for leave to take Plaintiff’s second medical examination and (2) a motion for leave to conduct Plaintiff’s independent neuropsychological/mental examination. The motions were set for hearing on July 2, 2024. On June 18, 2024, Plaintiff filed an opposition to Defendants’ motion for leave to conduct Plaintiff’s independent neuropsychological/mental examination. Plaintiff did not file an opposition to Defendants’ motion for leave to conduct Plaintiff’s medical examination. On June 25, 2024, Defendants filed a reply in support of their motion for leave to conduct Plaintiff’s neuropsychological/mental examination. The Court continued the hearing to August 15, 2024.
Trial is currently scheduled for November 12, 2024.
PARTIES’ REQUESTS
Defendants ask the Court (1) for leave to take Plaintiff’s second medical examination and (2) for leave to conduct Plaintiff’s independent neuropsychological/mental examination.
Plaintiff asks the Court to deny Defendants’ motion for leave to take Plaintiff’s neuropsychological/mental examination or to impose conditions on the examination.
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.
“(b) A motion for an examination 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 person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
A. Motion for leave to take Plaintiff’s second physical examination
Defendants ask the Court for leave to take Plaintiff’s second physical examination. While an orthopedic surgeon conducted the first medical examination, Defendants wish to have Steven Sykes, M.D., a board-certified neurologist, conduct the second examination because Plaintiff contends that she has suffered neurological injuries resulting from Defendants’ alleged negligence, placing her neurological condition at issue.
The Court finds good cause and grants Defendants’ motion to for leave to conduct Plaintiff’s second physical examination. Neurologist Steven Sykes, M.D., will conduct the examination at 1919 Santa Monica Boulevard, Suite 100, Santa Monica, California 90404, telephone (424) 314-7810, within 30 days from the hearing on this motion on a date and time to which the parties agree.
The examination may include examination/testing of the cranial nerve, facial sensation and strength, limited mental status, motor function, sensory response and reflexes, coordination, gait, and related examination.
B. Motion for leave to conduct Plaintiff’s neuropsychological/mental examination
Defendants ask the Court for leave to conduct a neuropsychological/mental examination of Plaintiff with neuropsychologist Judy Ho, Ph.D., on dates to which the parties agree. According to Defendants, Plaintiff contends that she has suffered neuropsychological/mental injuries, including traumatic brain injury, resulting from Defendants’ alleged negligence, placing her neuropsychological/mental condition at issue.
Plaintiff does not deny that she is claiming traumatic brain injury but asks the Court to deny the request or impose the following conditions:
1. Allow
Plaintiff to record all aspects of the examination and testing.
2. Allow
Plaintiff to drink liquids whenever she wishes.
3. Allow
Plaintiff to take snack breaks on demand.
4. Allow
Plaintiff to take restroom breaks on demand.
5.
If the total time for examination and testing exceeds 6 hours, allow Plaintiff to take
a .5 hour lunch break about half-way through the day.
6. Limit
the total time for examination and testing to 1 day, 8 hours from time of arrival at
the doctor's office to the time of leaving the doctor's office, including the
lunch break of .5 hours, leaving 7.5 hours for examination and testing.
7. Allow
Plaintiff to refuse to sign any consent or arbitration forms.
8. Provide
Plaintiff, through her counsel, copies of all raw data, testing materials, and
reports.
9. Limit the interview portion of the examination to relevant areas of inquiry related to the injuries Plaintiff is claiming in this action and exclude questions regarding medical, personal, or legal history unrelated to the present action.
Defendants disagree with several of Plaintiff’s proposed conditions and request a protective order for any exchange of raw data and testing materials.
The Court finds good cause and grants Defendants’ motion for leave to conduct Plaintiff’s neuropsychological/mental examination subject to the following conditions:
1. Audio recording
Code of Civil Procedure section 2032.530, subdivision (a), provides that “The examiner and examinee shall have the right to record a mental examination by audio technology.” (Code Civ. Proc., § 2032.530, subd. (a).) “[S]ince section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording.” (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 837 (Randy’s Trucking).)
Defendants contend that, “[a]part from the clinical interview, the standardized assessment portions of the examination, including the administration of paper-and-pencil questionnaires, cognitive tests, computerized questionnaires, and the administration of the semi-structured diagnostic interview (i.e., SCID 5) cannot be audio-recorded, videotaped, nor can photos be taken of the materials.” (Reply p. 4.) According to Defendants, “these protocols constitute raw data and trade secrets and the defense medical examiner has ethical and legal obligations to maintain their confidentiality and administer these instruments with fidelity to standardized procedures.”
Code of Civil Procedure section 2032.530, subdivision (a), allows Plaintiff to use audio technology to record the examination without imposing any limitations. Defendants cite no legal authority that would allow the Court to limit Plaintiff’s rights under the statute for the reasons Defendants give.
The Court orders that Plaintiff may record all portions of the mental examination by audio technology. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:1595, p.8I-25 [“Both the examiner and the examinee have the right to record the entire examination by audio (but not video) technology”].) The parties may submit a stipulated protective order restricting the dissemination of information contained in the audio recording for the Court’s approval.
2. Raw data
In Randy's Trucking, supra, 91 Cal.App.5th 818, the trial court granted the defendants’ motion to compel the plaintiff’s mental examination by a neuropsychologist. (Id. at p. 824.) The court denied the defendants’ request to transfer the testing information to the plaintiffs’ expert rather than the plaintiffs’ counsel. (Id. at p. 832.) Instead, the court ordered the neuropsychologist to provide an audio recording of the examination and “‘all raw data’” to the plaintiffs’ counsel within 30 days after the examination subject to a protective order. (Ibid.) The defendants petitioned for a writ of mandate. (Id. at p. 825.)
The Court of Appeal denied writ relief. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 825.) The court observed, “[t]here is no statutory authority . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” (Id. at p. 834, citing Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.) And “given the trial court’s broad discretion in discovery matters, the trial court . . . has the power to order disclosure of test materials and data to plaintiff’s attorney.” (Id. at p. 835.) Therefore, the trial court had discretion to order the production to the plaintiffs’ counsel of the raw data and audio recording. (Id. at p. 837.)
The defendants argued the trial court abused its discretion because the need to protect the neuropsychologist from violating her ethical and professional obligations outweighed the plaintiffs’ need for the raw data and audio recording. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 837.) But the neuropsychologist “did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs’ attorney subject to a protective order.” (Id. at pp. 837-838.)
The Court of Appeal reasoned that, “[w]ithout the raw data and audio recording, [the plaintiffs] 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.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) Moreover, the plaintiffs “should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, ‘the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.’ ” (Ibid.)
Here too, Defendants have not submitted a declaration from their neuropsychologist explaining why her ethical obligations would be violated if a court ordered her to disclose the raw data to Plaintiff’s counsel subject to a protective order. (See Randy’s Trucking, supra, 91 Cal.App.5th at pp. 837-838.) The Court concludes that Plaintiff has a legitimate need for the raw data and concerns about maintaining test security can be satisfied with a protective order. (See id. at p. 838.) The Court exercises its discretion and orders release of the raw data to Plaintiff’s attorney subject to a protective order. (See id. at p. 842.)
3. Length of examination, breaks, liquid
Defendants estimate that the examination will last 14 hours. To support the estimate, Defendants have provided only their counsel’s declaration stating:
“The proposed scope of mental examination (Neuropsychology/ Psychology) was provided by Dr. Judy Ho, the Neuropsychologist who Defendant anticipates will complete the evaluation of Plaintiff. Dr. Ho has indicated that this scope of testing is warranted due to the nature and extent of the alleged injuries; with cognitive testing required due to the mechanism of injury. I am informed and believe the total time for the Neuropsychology examination is anticipated be 14 hours.” (Soltis dec. ¶ 8.)
The Court finds that Defendants have not shown that 14 hours are required for the examination. The examination may not exceed 8 hours, which will include a 30-minute lunch break if the entire examination takes place on one day. Defendants will provide restroom breaks not to exceed 15 minutes at Plaintiff’s request. Defendants will provide snack breaks not to exceed 15 minutes every two hours at Plaintiff’s request. Plaintiff may drink liquids during the examination.
4. Scope of interview
The Court will not limit the scope of the interview. With a total examination time of 8 hours, the Court expects the interview portion of the examination to address only matters relevant to Plaintiff’s claimed injuries.
5. Arbitration and consent forms
Plaintiff may refuse to sign any arbitration or consent forms.
6. Tests
Dr. Ho may conduct only the following tests:
Structured Clinical Interview for DSM-5 (SCID-5), Structured Interview of Reported Symptoms, 2nd Edition (SIRS-2), Structured Inventory of Malingered Symptomatology (SIMS), Substance Abuse Subtle Screening Inventory (SASSI-4), Beck Anxiety Inventory (BAI), Beck Depression Inventory (BDI-II), Beck Hopelessness Inventory (BHI), Weschler Adult Intelligence Test-Fourth Edition (WAIS-IV), Weschler Memory Scale - Fourth Edition (WMS-4), Delis-Kaplan Executive Function System (D-KEFS), Woodcock Johnson Test of Cognitive Abilities 4th Edition (WJ-IV), Neuropsychological Assessment Battery (NAB), Boston Naming Test, Hooper, Developmental Test of Visual Perception - Adolescent and Adult (DTVP-A), Rey Complex Figure Test (RCFT), Rey 15 Item, Dot Counting Test, b test, Advanced Clinical Systems Tests, Wisconsin Cart Sort Test (M-WCST), Iowa Gambling Test (IGT-2), Test of Everyday Attention (TEA), Rivermead Behavior Memory Test (RBMT), Test of Memory and Learning (TOMAL-2), Test of Premorbid Functioning (TOPF), Social Cognition, Conners Performance Test (CPT 3), Memory for Intentions Test (MIST), Booklet Category Test
CONCLUSION
The Court GRANTS the motion for leave to conduct Plaintiff Ramona Lopez’s second medical examination filed by Defendants Smog Express and United Brothers, Inc. The Court orders Plaintiff Ramona Lopez to attend a medical examination with neurologist Steven Sykes, M.D, a board-certified neurologist, at 1919 Santa Monica Boulevard, Suite 100, Santa Monica, CA 90404, (424) 314-7810, on a date within 30 days of the hearing on this motion on which the parties agree. The manner, diagnostic tests and procedures, conditions, scope, and nature of the examination are set forth above.
The Court GRANTS the motion for leave to conduct Plaintiff Ramona Lopez’s independent neuropsychological/mental examination with Judy Ho, Ph.D., at 1600 Rosecrans Avenue, Media Center 4th Floor, Manhattan Beach, CA 90266, on a date within 30 days of the hearing on this motion on which the parties agree. The manner, diagnostic tests and procedures, conditions, scope, and nature of the examination are set forth above.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling within five days.