Judge: Lisa R. Jaskol, Case: 23STCV20913, Date: 2024-08-19 Tentative Ruling
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Case Number: 23STCV20913 Hearing Date: August 19, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On August 30, 2023, Plaintiffs Mario Rodriguez Virgen (“Plaintiff”) and Brayan Rodriguez Ramirez filed this action against Defendants Uber Technologies, Inc. (“Uber”), Rasier, LLC (“Rasier”), Rasier-CA, LLC (“Rasier-CA”), Jensen Alan Jimerson (“Jimerson”), Tatiana Ikonnikova (“Ikonnikova”), and Does 1-100 for negligence and negligence per se.
On November 6, 2023, Uber, Rasier, and Rasier-CA filed an answer.
On November 9, 2023, the Court dismissed Ikonnikova without prejudice at Plaintiffs’ request.
On
November 15, 2023, Jimerson filed an answer.
On June 13, 2024, Jimerson filed a motion to compel Plaintiff to attend a neuropsychological examination or in the alternative to exclude experts. The motion was set for hearing on July 15, 2024. On July 1, 2024, Plaintiff filed an opposition. On July 8, 2024, Jimerson filed a reply. The Court continued the hearing to August 19, 2024.
Trial is currently scheduled for February 26, 2025.
PARTIES’ REQUESTS
Jimerson asks the Court to compel Plaintiff to appear for a neuropsychological exam with David M. Lechuga, Ph. D., at 13 Orchard Road, Suite 103, Lake Forest, CA 92630, on a mutually agreeable date or in the alternative to exclude Plaintiff’s treating or expert physicians.
Plaintiff asks the Court to order that Plaintiff may record the entire examination using audio technology and that Jimerson must provide Plaintiff’s counsel the raw data within 30 days of 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. Neuropsychological examination
Jimerson noticed a neuropsychological examination of Plaintiff with neuropsychologist David M. Lechuga, Ph. D. Plaintiff agreed to appear for a neuropsychological examination but only on the condition that Jimerson produce the raw data from the examination and an audio recording of the examination to Plaintiff’s attorney.
Jimerson asks the Court to compel Plaintiff to attend a neuropsychological examination without requiring Jimerson to comply with Plaintiff’s requested conditions.
It is undisputed that Plaintiff has placed his neuropsychological condition at issue, supporting Jimerson’s request for leave to conduct a neuropsychological examination. The Court finds good cause and grants Defendants’ motion for leave to conduct Plaintiff’s neuropsychological examination, subject to the following conditions.
B. Audio recording
Jimerson contends: “[A]s part of the diagnosis of a potential patient, confidential tests, developed by others, are utilized by Dr. Lechuga. These tests are protected by copyright and trade secrecy laws, as well as ethical requirements governing the practice of psychology, which prohibits the disclosure of the specific components of the test, including the recording of neuropsychological test administration procedures. These same laws and ethical requirements do not permit neuropsychologists like Dr. Lechuga to turn over raw data from the neuropsychological examination to legal counsel (plaintiff or defense), or to anyone who is not a licensed neuropsychologist. This would include prohibiting Plaintiff’s Counsel or representative from recording the actual testing of Plaintiff.” (Motion p. 12.)
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).)
By its terms, Code of Civil Procedure section 2032.530, subdivision (a), allows Plaintiff to use audio technology to record the examination without imposing any limitations. Jimerson cites no legal authority that would allow the Court to limit Plaintiff’s rights under Code of Civil Procedure section 2032.530, subdivision (a).
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 information contained in the audio recording will be governed by the stipulated protective order entered on January 22, 2024 (or another protective order to be submitted to the Court).
C. 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, Jimerson has submitted a declaration from Dr. Lechuga, which incorporates a “Collective Statement on Importance of Protection of Psychological Testing Materials” (“Collective Statement”). The Collective Statement asserts that “[p]rotective orders issued by a judge are insufficient to ensure test security” because attorneys are motivated to violate the protective order, disclosure even under a protective order creates opportunities for other non-psychologists to misuse the information, and enforcement of the protective order is impracticable.
Plaintiff, on the other hand, asserts that he needs the raw data for the same reasons the Court of Appeal summarized in Randy’s Trucking: to prepare for an conduct an effective cross-examination of the defendant's expert. (Opposition p. 6, citing Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.)
The Court has weighed Dr. Lechuga’s concerns (which are based on an assumption that the protective order will be ineffective) against Plaintiff’s need to prepare for and effectively conduct Dr. Lechuga’s cross-examination. The Court concludes that Plaintiff has a legitimate need for the raw data and Dr. Lechuga’s concerns about maintaining test security can be satisfied with a protective order. The Court exercises its discretion and orders release of the raw data to Plaintiff’s attorney subject to the January 22, 2024 protective order (or another protective order to be submitted to the Court).
D. Tests
Dr. Lechuga may conduct only the following tests:
Victoria System Validity Test
(VSVT)
Test of Memory Malingering
(TOMM)
Dot Counting Test (OCT)
The b Test Green Memory Test
(GMT)
Validity Indicator Profile
(VIP)
Structured Inventory of
Malingered Symptomatology (SIMS)
Mini-Mental Status
Examination (MMSE)
Wechsler Adult Intelligence
Scale - 4 (WAIS-IV)
Wide Range Assessment Test -
4 (WRAT4)
Wechsler Abbreviated Scale of
Intelligence (WASHI)
Wechsler Test of Adult
Reading (WT AR)
Reitan-Klave
Sensory-Perceptual Examination Finger Tapping Test (FTT) Grooved Pegboard (GPB)
Hand Dynamometer (HD)
Multilingual Aphasia
Examination (MAE)
Boston Naming Test, Second
Edition (BNTZ)
Expressive Vocabulary Test -
2 (EVTZ)
Peabody Picture Vocabulary
Test - 4 (PPVT4)
Visual Form Discrimination
(VFD)
Hooper Visual Organization
Test (VOT)
Rey Complex Figure Test
(RCFT)
California Verbal Learning
Test - II (CVL T-3)
Wechsler Memory Scale - IV
(WMS-IV)
Wide Range Assessment of
Memory and Learning - 2 (WRAML-2)
Color Trails Test (CTT)
Trail Making Test, Part A and
Part B (TMT A/B)
Delis-Kaplan Executive
Function Systems (D-KEFS)
Conners’ Continuous
Performance Test - Ill (CPT-3)
Wisconsin Card Sorting Test
(WCST)
Ruff Neurobehavioral
Inventory (RNBI)
Neurobehavioral Functioning
Inventory (NFI)
Pain Patient Profile (P3)
Minnesota Multiphasic
Personality Inventory - 2 (MMPl-2)
Minnesota Multiphasic
Personality Inventory - 2 RF (MMPl-2RF)
Neuropsi Atenci6n y Memoria
Neuropsi Evaluaci6n
Neuropsicolgica Breve en Espanol
(Denominaci6n, Repetici6n,
and Comprensi6n subtests)
Personality Assessment
Inventory (PAI)
Trauma Symptom lnventory-2
(TSI)
Detailed Assessment of
Posttraumatic States (DAPS)
Neuropsychological Assessment
Battery (NAB)
Neuropsychological Impairment
Scale (NIS)
Posttraumatic Diagnostic
Scale (PDS)
Posttraumatic Stress Disorder Checklist, 5th Edition (PCL-V)
CONCLUSION
The Court GRANTS in part Defendant Jensen Alan Jimerson’s motion for leave to conduct Plaintiff Mario Rodriguez Virgen neuropsychological examination with neuropsychologist David M. Lechuga, Ph. D., at 13 Orchard Road, Suite 103, Lake Forest, CA 92630, on a mutually agreeable date within 30 days of the hearing on this motion. The tests and procedures will be limited to those set forth above.
Plaintiff Mario Rodriguez Virgen may record all portions of the neuropsychological examination by audio technology. The information contained in the audio recording will be governed by the stipulated protective order entered on January 22, 2024 (or another protective order to be submitted to the Court).
Within 30 days of the examination, Defendant Jensen Alan Jimerson will produce to counsel for Plaintiff Mario Rodriguez Virgen the raw data from the neuropsychological examination, subject to the January 22, 2024 protective order (or another protective order to be submitted to the Court).
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.