Judge: Lisa R. Jaskol, Case: 22STCV29800, Date: 2024-02-05 Tentative Ruling
Case Number: 22STCV29800 Hearing Date: February 5, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On September 13, 2022, Plaintiff Robert Earl McKinnon (“Plaintiff”) filed this action against Defendants Freddie C. Soloman (“Soloman”), Penske Truck Leasing Co., L.P. (“Penske”), Black Horse Carrier, LLC (“Black Horse”), and Does 1-50 for motor vehicle negligence, general negligence, negligent entrustment, respondeat superior, and negligent hiring/retention.
On October 13, 2022, Soloman, Penske, and Black Horse filed an answer.
On August 16, 2023, Plaintiff amended the complaint to include Defendant Penske Logistics, LLC as Doe 1 (“Penske Logistics”). On September 26, 2023, Penske Logistics filed an answer.
On November 28, 2023, Plaintiff amended the complaint to include Defendant Centerline Drivers, LLC, as Doe 2 (“Centerline”). On January 16, 2024, Centerline filed an answer.
On November 29, 2023, Soloman, Penske, and Black Horse (“Moving Defendants”) filed a motion to compel Plaintiff to appear for a mental (neuropsychological) independent medical examination to be conducted by April D. Thames, Ph.D. On December 20, 2023, Plaintiff filed an opposition. On December 27, 2023, Moving Defendants filed a reply. On January 31, 2024, Moving Defendants filed a supplemental declaration. The Court continued the hearing from January 4, 2024 to February 5, 2024.
Trial is currently scheduled for September 16, 2024.
PARTIES’ REQUESTS
Moving Defendants ask the Court to compel Plaintiff to appear for a neuropsychological examination with April D. Thames, Ph.D. Moving Defendants also ask the Court to order that, while Dr. Thames may provide Plaintiff’s licensed psychologist an audio recording of the forensic testing portion of the examination and the raw data from the examination, Dr. Thames may not provide these materials to Plaintiff’s counsel.
Plaintiff asks the Court to deny Moving Defendants’ request to limit dissemination of the audio recording of the forensic testing portion of the examination and the raw data from the examination to Plaintiff’s licensed psychologist.
LEGAL STANDARD
Code of Civil Procedure section 2032.020 provides in part:
“(a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.
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“(c) (1) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. . . .”
(Code Civ. Proc., § 2032.020, subds. (a), (c)(1).)
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.
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“(d) 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, subds. (a), (d).)
DISCUSSION
Moving Defendants ask the Court to compel Plaintiff to attend a mental examination with a neuropsychologist based on Plaintiff’s assertion that he suffered a traumatic brain injury in the accident giving rise to Plaintiff’s lawsuit. Moving Defendants also ask the Court to order that Plaintiff's attorney may not obtain (1) an audiotape of the forensic testing portion of the neuropsychological examination or (2) the raw data from the examination. Moving Defendants argue that Dr. Thames’s ethical and professional responsibilities prohibit her from disclosing these items to anyone except a licensed psychologist who will maintain the secrecy that is the key to the continued validity of the neuropsychological testing materials.
Plaintiff does not dispute the existence of good cause to compel Plaintiff’s neuropsychological examination. However, Plaintiff asks the Court to reject the conditions Moving Defendants have requested.
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).)
Moving Defendants argue that allowing Plaintiff to record the forensic testing portion of the examination by audio technology is not necessary to satisfy the purposes of Code of Civil Procedure section 2032.530, subdivision (a). But where, as here, the plain language of the statute allows Plaintiff to use audio technology to record the examination without imposing any limitations, the Court need not consider whether another procedure that abridges the statutory right would satisfy the statutory purposes.
Moving Defendants also rely on Code of Regulations, Regulations, title 16, Section 1396.3 which provides:
“A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naiveté of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.” (Cal. Code Regs., tit. 16, § 1396.3.)
“While this regulation requires psychologists to maintain test security, it does not address a psychologist’s duty when a court order requires an attorney’s access to psychological tests or devices, particularly subject to a protective order that requires the parties to safeguard the use of the tests or devices. Put another way, the regulation does not prohibit a psychologist from producing tests or devices when ordered by a court subject to a protective order.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 839.)
In addition, Moving Defendants ask the Court to exercise its discretion to balance the interests of Dr. Thames and the community of professional neuropsychologists against Plaintiff’s statutory rights. The Court’s discretion in discovery matters does not extend to limiting Plaintiff’s rights under Code of Civil Procedure section 2032.530, subdivision (a), based only on the interests of Dr. Thames and her colleagues.
The Court denies Moving Defendants’ request for an order permitting their neuropsychologist to withhold portions of the audio recording of the examination from Plaintiff’s counsel.
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.)
Here, Dr. Thames has submitted a declaration asserting that her ethical obligations would be violated if she disclosed the raw data and audio recording of the forensic testing portion of the examination to Plaintiff’s counsel subject to a protective order. Dr. Thames states in part:
“15. The validity of all psychological and neuropsychological test instruments is contingent on the novelty of all test items. The naiveté of patients/plaintiffs concerning the stimulus materials, test procedures, task demands and content of the tests they are being given is absolutely crucial to a valid and informative examination. If test takers possess advanced knowledge of test measures, the validity of the testing can be seriously undermined, if not totally ruined. Fundamentally, this is true for three major reasons. First, if test subjects have advanced knowledge of those measures which are designed to detect inadequate effort, i.e., malingering, they can successfully avoid being detected as fakers. In these circumstances, test subjects could then intentionally underperform on numerous other measures without detection, creating the serious misimpression that they suffer from deficits or disorders that they do not suffer from. Second, test takers with advanced knowledge of test content can excel on tests, giving the misimpression that they are more knowledgeable or, otherwise more qualified than the next person, much like a student would excel on a test when he or she alone knew the test questions before a test. Third, in situations where a test subject possessed knowledge of the content of tests, including so- called malingering measures, the subject might both excel in certain areas, yet intentionally underperform in other areas, creating the more dramatic misimpression that the person had even more extreme deficits in the areas of underperformance than otherwise might appear to be the case. For these basic reasons, secrecy of the content of neuropsychological tests is absolutely paramount to the entire field of neuropsychology— something every licensed psychologist well understands.
“16. Thus, any release of test information to
non-licensed neuropsychologists presents the danger that non-licensed
individuals will retain memory of this information to be utilized to coach
future potential test subjects and skew test results, especially where such
individuals are potentially financially motivated by said test results. The
risk of intentional and inadvertent dissemination of tests multiplies every
time a non-psychologist lays their eyes on raw test data. As the validity of
all psychological and neuropsychological test instruments is contingent on the
novelty of all test items, release of test information, even pursuant to a
protective order, does not adequately safeguard test validity.
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“30. As mentioned in Paragraph 15 and supported by the
above cited resources, any release of raw test data, test materials, and
audio-recording of the forensic psychological examination unavoidably poses
great societal risk and violates a psychologist’s ethical obligations to
safeguard test security that cannot be ameliorated by the imposition of a
protective order. Therefore, the court’s ruling in Randy’s Trucking, Inc. v.
Superior Court of Kern County (2023) 91 Cal.App.5th 818 threatens test
validity, public safety, and the ability of the psychologists to carry out
their ethical obligations.
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“35. Entry of a protective order does not eliminate
the conflict that I face in terms of my ethical and legal obligations not to
reproduce tests and, not disseminate them to persons other than
non-psychologists. The whole notion of providing test data to anyone other than
licensed psychologists, under any circumstances, runs contrary to my ethical
obligations fully maintain test security, as well as my legal responsibility."
(Thames Dec. ¶¶ 15-16, 30, 35; see also Thames Dec. ¶¶ 36-39 [asserting that Plaintiffs’ attorneys and others lack adequate motivation to protect test security even under a protective order].)
Dr. Thames has not, however, explained why her ethical obligations would be violated if she disclosed the raw data and audio recording of the forensic testing portion of the examination to Plaintiff’s attorney subject to a protective order in compliance with a court order. (See Randy’s Trucking, supra, 91 Cal.App.5th at pp. 837-838.) In Randy’s Trucking, the Court of Appeal noted that “Standard 9.04 of the APA Ethical Standards, which according to Business and Professions Code section 2936 sets the standard of care for psychologists in California, allows for the release of ‘test data,’ which is defined as ‘raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination,’ as well as ‘[t]hose portions of test materials that include client/patient responses,’ pursuant to a client/patient release. In the absence of a release, ‘psychologists provide test data only as required by law or court order.’” (Randy’s Trucking, supra, 91 Cal.App.5 at p. 839, fn. 11, emphasis added.) “Thus, the ethical standards arguably are not violated where, as here, a court orders release of test data.” (Ibid.)
As in Randy’s Trucking, the Court weighs Moving Defendants’ evidence of potential harm to Dr. Thames’s professional and ethical obligations against Plaintiff’s “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.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) “Without the raw data and audio recording, [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.) Moreover, transmitting this information to Plaintiff’s retained expert would 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.)
Having considered Dr. Thames’s concerns, the Court concludes that Plaintiff has a legitimate need for the raw data and the concerns about maintaining test security can be satisfied with a protective order. (See Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) In her declaration, Dr. Thames opines that non-psychologists are less motivated than psychologists to safeguard test secrecy, creating a risk of disclosure in violation of a protective order. Dr. Thames does not appear to consider attorneys’ own ethical obligations in her analysis but instead speculates that some attorneys may put their duty of zealous representation of their clients above their duty to comply with Court orders. Moving Defendants have not presented evidence of a substantial risk that counsel will deliberately violate a protective order or fail to put in place safeguards to prevent the inadvertent breach of test security. 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.)
The Court grants the motion to compel Plaintiff to attend the mental (neuropsychological) independent medical examination and denies Moving Defendants’ requests to limit dissemination of the audio recording of the forensic testing portion of the examination and the raw data to Plaintiff’s expert psychologist.
CONCLUSION
The Court GRANTS IN PART the motion of Defendants Freddie C. Soloman, Penske Truck Leasing Co., L.P., and Black Horse Carrier, LLC to compel Plaintiff Robert Earl McKinnon’s neuropsychological examination with neuropsychologist April D. Thames, Ph.D. within 30 days on a date and time to which the parties agree, at 760 Westwood Plaza, C8-841, Los Angeles, California 90024.
In all other respects, the Court DENIES the motion.
The neuropsychologist must produce the raw data and copy of the entire audio recording of the examination to Plaintiff’s counsel subject to a protective order. The parties may submit for the Court’s approval a proposed protective order. (See, e.g., Randy’s Trucking, 91 Cal.App.5th at p. 828 [sample protective order].)
The tests are limited to the following:
Green
Word Memory Test or Victoria Symptom Validity Test
Dot
Counting Test or B test
Test
of Premorbid Functioning
Peabody
Picture Vocabulary Test
Test
of Nonverbal Intelligence
Digit
Span (WAIS-IV)
Letter
Number Sequencing
Trail
Making Test Part A and B or D-KEFS Trail Making Test
Matrix
Reasoning (WAIS-IV)
Visual
Puzzles (WAIS-IV)
Block
Design (WAIS-IV)
Color
Word Interference Test (DKEFS) or Stroop (Golden version)
Wisconsin
Card Sort Test
Rey
Osterreith Complex Figures Test
California
Verbal Learning Test or Hopkins Verbal Learning Test
Story
Memory (RBANS) or Logical Memory from WMS-IV
Controlled
Oral Word Association Test
Nab
Naming
Coding
(WAIS-IV)
Symbol
Search (WAIS-IV)
Beck
Anxiety Inventory
Beck
Depression Inventory-2
Minnesota
Multiphasic Personality Inventory-3
Clinician
Administered Checklist for DSM PTSD or Trauma Symptom Inventory
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.