Judge: Lynne M. Hobbs, Case: 20STCV47178, Date: 2023-05-19 Tentative Ruling
PLEASE NOTE:
The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.
Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.
Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.
If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.
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.
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Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.
Case Number: 20STCV47178 Hearing Date: December 4, 2023 Dept: 30
O.B., BY AND THROUGH HIS GUARDIAN AD LITEM SAMANTHA EVANS vs FRED EKSTRAND ELEMENTARY, A CALIFORNIA PUBLIC ENTITY, et al.
Motion to Compel Mental Examination of Plaintiff
Motion to Continue the Trial Date
TENTATIVE
Defendant’s Motion to Compel Plaintiff’s IME is GRANTED. Plaintiff is ordered to appear for his mental examination with Dr. Dupee, on December 11, 2023 at 9:30 a.m. at 1148 Manhattan Avenue, Suite 9, Manhattan Beach, CA 90266. Plaintiff’s mother or any third-party observer is not allowed to be present during the examination. Plaintiff is entitled to an audio recording of the examination. Motion to Continue the Trial Date to February 6, 2024 is GRANTED. Trial-related deadlines are not continued except by agreement of the parties or leave of Court. Moving party to give notice.
Legal Standard
“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.” (Code Civ. Proc., § 2032.220(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.” (Code Civ. Proc., § 2032.310(a).) Such an order may be made only after notice and hearing, and for "good cause shown."¿ (Code Civ. Proc., §§ 2032.310(c), 2032.320(a).)¿¿¿
The motion must state the time, place, identity and specialty of the examiner, and the "manner, conditions, scope and nature of the examination."¿(Code Civ. Proc., § 2032.310(b).) “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(d).)
The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.310(b).)¿
Discussion
Defendants move to compel Plaintiff to appear for an independent medical examination (IME) with Dr. Suzanne M. Dupee. (“Dr. Dupee”). As a result of the accident, Plaintiff’s experts have concluded that Plaintiff suffers from significant emotional and psychiatric issues, including depression, anxiety, irritability, personality changes and other psychiatric issues. (Stecker Decl., ¶ 9; Stecker Decl., Exhs. 4-5.) There is no dispute that Plaintiff has put his mental condition at issue. However, Plaintiff’s counsel refuses to allow a psychological IME unless Plaintiff’s mother and a legal representative are allowed in the exam room, and are permitted to record audio.
Good Cause
Defendant also argues that, in addition to Plaintiff’s claims regarding his psychological issues, Plaintiff has retained experts and sought treatment in the same practice areas and specialties in which Defendant seeks to have Plaintiff examined in. Plaintiff has retained psychologist, Kimberley Dawn Lakes, Ph.D., to provide opinions about Plaintiff’s claimed damages. Defendant argues it is entitled to likewise have their own experts examine Plaintiff, independently of outside influence, to evaluate the nature and extent of Plaintiff’s claimed injuries; otherwise, Plaintiff and his experts and treaters will have free reign to provide unrebutted testimony and evidence. Plaintiff’s experts have unlimited access to Plaintiff and can evaluate him as many times as they would like. If Defendant’s expert is not allowed to examine Plaintiff freely and independently of outside influence, counsel will utilize this fact at trial to undermine and attack Defendant’s experts’ credibility and the bases for their opinions.
In opposition, Plaintiff argues he has already undergone extensive psychological evaluation and treatment since the incident, as documented in the reports and depositions of Dr. Stacey Harvey and Dr. Susan Ashley. Plaintiff's documented fear and anxiety towards doctors and medical environments, as detailed in the reports of Dr. Harvey and Dr. Ashley, are significant. His intense reactions to medical settings, including panic attacks and avoidance behavior, are clear indicators of a deeply rooted trauma directly linked to the chemical burn incident. Subjecting Plaintiff to a psychological examination by unfamiliar medical professionals is likely to exacerbate his existing fears. This amplification of trauma, particularly for a child, is not just a speculative concern but a foreseeable consequence, given his documented history of adverse reactions to medical environments.
Because Plaintiff has placed his mental condition at issue by alleging mental injuries, and because Plaintiff has undergone an examination by his own experts, including Dr. Lakes, a mental examination by the defense is likely to produce facts relevant to Plaintiff’s causes of action and to rebut Plaintiff’s evidence. Further, Plaintiff’s argument that he fears medical professionals and settings is undermined by the fact that he has been examined by Dr. Lakes, after being examined by Dr. Harvey and Dr. Ashley. The defense must now be given an opportunity to independently evaluate Plaintiff. Defendant has shown good cause.
Third Party Observer
Next, Defendant argues it is crucial to permit this examination without the presence of any third party including but not limited to Plaintiff's mother and legal counsel. The presence of Plaintiff's mother and legal counsel may inadvertently influence Plaintiff's responses or demeanor during the examination. The absence of external observers is crucial to ensure that the examination is unbiased and reflective of Plaintiff's true mental condition. Additionally, psychological examinations often require individuals to discuss highly personal and sensitive issues, which can be inhibited when others are present. Allowing the examination to be conducted in a private and confidential setting can encourage Plaintiff to be more open and honest with Dr. Dupee, which is vital for an accurate assessment. Dr. Dupee's ethical obligations, as outlined in her professional cannons of ethics, may require her to conduct the examination in a manner that ensures the privacy and autonomy of the examinee. Dr. Dupee is a qualified psychological expert, trained to conduct such examinations. She possesses the necessary skills and experience to handle the examination professionally and ethically.
There is a special need for rapport between examiner and examined during a mental examination, and thus, neither counsel nor court reporters may attend a mental examination absent a court order or stipulation.¿ (See¿Edwards v. Superior Court¿(1976) 16 Cal.3d 905, 910-912;¿see also¿Toyota Motor Sales, U.S.A., Inc. v. Superior Court¿(2010) 189 Cal.App.4th 1391, 1396-1397;¿Golfland¿Entertainment Centers, Inc. v. Superior Court¿(2003) 108 Cal.App.4th 739, 750-751.)¿ “The examiner and examinee shall have the right to record a mental examination by audio technology.”¿ (Code Civ. Proc. § 2032.530,¿subd. (a).)¿ “Nothing in this title shall be construed to alter, amend, or affect existing case law with respect to the presence of the attorney for the examinee . . . during the examination by agreement or court order.”¿ (Code Civ. Proc. § 2032.530,¿subd. (b).)¿
In opposition, Plaintiff argues that Dr. Lakes, an expert in child and adolescent psychology, emphasizes the importance of recording or having an observer during assessments, especially given the plaintiff's discomfort and children's suggestibility. (Lakes Decl., ¶¶ 4-7.) Her declaration also notes that such measures can help mitigate minors' tendencies to understate difficulties due to a desire to please or fear of authority, ensuring more reliable assessments. (Id., ¶¶ 6- 7.)
While Plaintiff contends that he requires his mother or a third person to be present for comfort and emotional support, he fails to provide a declaration from a medical provider stating that he is unable to proceed with the examination without his mother’s presence because of his sensitivities. Dr. Lakes’ declaration simply states “because O.B. is a child and has expressed fears of doctors and medical settings, it is reasonable to honor the request that an observer be present.” (Lake Decl., 7.) However, whatever comfort Plaintiff’s mother or third party may provide is “substantially outweighed by the distraction and potential disruption of a third person.” (Id. at 845.) As the Vinson court found, there is a special need for rapport between examiner and examined during a mental examination, and there is no evidence that Plaintiff will be unable to proceed with the examination without his mother’s presence.
The Court notes that Plaintiff’s counsel opines as to Plaintiff’s conditions and sensitivities, however, counsel is not a mental health professional. While the Court is sympathetic to Plaintiff’s condition and fears, it also has not been presented with sufficient evidence to allow a third-party observer into the examination room. Moreover, there is no evidence to suggest that Defendant’s expert would be hostile towards Plaintiff or would not proceed in an ethical manner. As such, without more, the Court must assume that the examiner will proceed in an ethical and respectful manner. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 836.)
Further, as detailed below, the Court will allow the examination to be recorded by audio tape, which is an unobtrusive measure that will permit evidence of abuse to be presented to the court.
Audio Recording
Plaintiff also requests to record the examination.
Under Code of Civil Procedure section 2032.530, “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Nothing in the statute restricts the portions of a mental exam that may be audio recorded. (Golfland Entertainment Ctrs., Inc. v. Sup.Ct. (2003), 108 Cal.App.4th 739, 750, 752 [trial court abused discretion limiting audio recording to examinee’s responses only; entire mental exam was to be recorded].)
The mental examination statute, section 2032, subdivision (g)(2), states in relevant part: “The examiner and examinee shall have the right to record a mental examination on audio tape.” At the hearing, the trial court explained that it was ordering the recording of David's statements, but not Dr. Epperson's, because “[t]hat's what the Code says, by my reading.” The trial court's reading of the Code was incorrect. Nothing in the applicable statute suggests that the right of the examiner or examinee is limited to recording only selected parts of the examination.
Further, recording only the examinee's responses would defeat the main purposes of the audiotaping, which are to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee's interests are protected (especially since the examinee's counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court. (See Vinson, supra, 43 Cal.3d 833, 846, 239 Cal.Rptr. 292, 740 P.2d 404.) (Id. at 750.)
As such, Plaintiff is entitled to a full audio recording, including the testing portion. If there are any ethical concerns regarding recording the examination, the recording is to be subject to a protective order.