Judge Lynne M. Hobbs, Case Number: 21STCV46100, Date: 2023-12-18 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV46100, Date: 2023-12-18 Tentative Ruling

Case Number: 21STCV46100 Hearing Date: December 18, 2023 Dept: 30

JAMES DENG vs NEREIDA VALDEZ, et al.

TENTATIVE

Defendant’s Motion to Compel Mental Examination of Plaintiff is GRANTED but limited as follows: The raw data be given to Plaintiff’s counsel, the examination is to be recorded, and limited to 8 hours with reasonable breaks. If Defendant would like, the parties should meet and confer to draft a stipulated protective order confining the scope of disclosure and use of the raw test data and audio-recording of the interview and examination so that it may be properly used by Plaintiff’s counsel to consult with Plaintiff’s own experts and to conduct cross-examination of Defendant’s experts.

Defendant’s request for sanctions is DENIED.

Moving party to give notice.

Discussion

Defendant moves to compel Plaintiff’s mental Independent Medical Examination (IME), arguing there is good cause as Plaintiff has placed his mental, cognitive, and psychological condition at issue in this litigation by alleging he suffered and continues to suffer from (1) traumatic brain injury with concussion; (2) posttraumatic headaches and post-concussion syndrome; (3) labyrinthine concussion with vertigo; (4) anxiety secondary to the alleged collision; (5) dizziness; (6) hearing loss; (7) loss of balance; and (8) diminished brain function. (Terzakarian Decl., ¶ 15; Exh. F.)

Plaintiff does not dispute this.

The Court finds there is good cause to compel Plaintiff’s mental IME, because he claims he suffers from TBI, among other things. “To protect the plaintiff's privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 259. See also Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Generally, “good cause” requires specific facts justifying discovery and a showing that the inquiry is “relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson at 840.)

However, Plaintiff proposes certain limitations. First, that Plaintiff’s counsel receives the raw data associated with the examination directly in order to be able to cross-examine the expert and because disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination. Second, the examination should be limited to 8 hours with breaks as necessary and requested by Plaintiff. And, lastly, that the defense expert record the examination in order for Plaintiff’s counsel to cross-examine the expert.

I. Length of Examination

Plaintiff requests that the length of the examination be limited to 8 hours with breaks as necessary and requested by Plaintiff.

Defendant has not responded as to why this request should not be granted.

Plaintiff’s request to limit the length of the examination to 8 hours with reasonable breaks is granted.

II. Production of Raw Data from Defendant’s Expert to Plaintiff’s Counsel

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. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 846 [trial courts, which have "broad discretion in discovery matters," retain the power to take prophylactic measures]; Randy's Trucking, Inc. v. Superior Court, 91 Cal.App.5th 818.)

Defendant argues the examination should not be recorded for ethical or proprietary reasons. However, the Court finds that Defendant should provide Plaintiff’s counsel the test materials and raw data. If Defendant is concerned with the doctor’s ethical duties, or proprietary reasons, Plaintiff is amenable to enter into a protective order and that is the route the parties should take. Further, Plaintiff has explained that he needs these materials in order for his attorney to cross-examine the expert.

III. Audio recordings

Next, Plaintiff requests that she be permitted to audio 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.”

Thus, Plaintiff has the right to record the mental examination. Plaintiff’s request to record the examination is granted subject to a protective order if Defendant so chooses.

Defendant’s request for sanctions is denied. First, Defendant is required to file a motion to show good cause for a mental IME. (Code Civ. Proc. § 2032.310(a).) Next, Plaintiff’s requests were reasonable, and the motion was successfully opposed.