Judge: Lynne M. Hobbs, Case: 22STCV09271, Date: 2024-04-15 Tentative Ruling

Case Number: 22STCV09271    Hearing Date: April 15, 2024    Dept: 30

RAYMOND VILLALOBOS, JR. vs UNITED PACIFIC SERVICES INC., et al.

TENTATIVE

Defendant’s Motion to Compel Mental Examination of Plaintiff is GRANTED.

The Court encourages the parties to 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.

Moving party is ordered to give notice.

Legal Standard

A court order is required to obtain a party’s mental examination. (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 court is to describe¿in detail¿who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in detail—is to list them by name.” (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249, 260.)¿

¿The moving party must support their motion with a meet and confer declaration. (Code Civ. Proc., § 2032.310(b).)¿ A meet and confer declaration must state facts "showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion."¿ (Code Civ. Proc., § 2016.040.)¿¿¿

¿The examination will be limited to whatever condition is "in controversy" in the action.¿ (Code Civ. Proc., § 2032.020(a).)¿ This means that the specific injury or subject of the litigation must be directly invoked by the examination.¿ (See¿Roberts v. Superior Court¿(1973) 9 Cal.3d 330, 337.)¿ By alleging a causal link between the emotional distress and the defendant's conduct, a plaintiff "implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress."¿ (Vinson v. Superior Court¿(1987) 43 Cal.3d 833, 840.) However, a mental examination is only appropriate where the plaintiff alleges continuing emotional distress. (Doyle v. Sup. Ct. (Caldwell)¿(1996) 50 Cal.App.4th¿1878, 1886-1887.)¿ "While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface."¿ (Vinson,¿supra, 43 Cal.3d at 840.)¿¿¿

Discussion

Defendants move for an order for leave to conduct Plaintiff’s neuropsychological Independent Medical Examination (IME). Defendants argue there is good cause because Plaintiff put his mental state in controversy. Plaintiff’s counsel refuses to produce Plaintiff for the IMEs unless the examining neuropsychologist (Kyle Boone Ph.D.) agrees to provide all raw testing materials, as well as a full audio recording of the testing component of the neuropsychological IME directly to Plaintiff’s counsel. Defendants argue that this would require Dr. Boone to violate the ethical code of conduct in her field by compromising test security.

Plaintiff agrees to undergo the examination but, as Defendants have mentioned, Plaintiff demands the raw data, an audio recording of the examination, and testing materials be provided to his counsel.

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

As to producing the raw data to Plaintiff’s counsel, CCP section 2032.610(a) states: “If a party submits to, or produces another for, a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210), an order of court under Article 3 (commencing with Section 2032.310), or an agreement under Section 2016.030, that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party:

(1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner . . . .”

Therefore, Plaintiff may make a written demand that Defendant produce “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” The Court finds that Plaintiff’s opposition constitutes a written request for these documents and finds that the underlying raw testing data should also be produced as part of the “results of all tests made.” Plaintiff will not be able to effectively cross-examine the defense experts without it, which would result in unfairness and prejudice to Plaintiff. “There is no statutory authority precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” (Randy’s Trucking, Inc., v. Superior Court (2023) 91 Cal.App.5th 818, 833-837.) 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.)

A. Protective Order

Defendant raises concerns regarding ethical issues about certain documents being used outside proper psychological contexts.

The Court orders the parties to meet and confer to draft a stipulated protective order confining the scope of disclosure and use of the raw test data 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.

B. Would Producing the Raw Data Violate Dr. Boone’s Ethical Obligations?

Defendants argues that producing the raw data raises ethical issues and cites to 16 C.C.R. § 1396.3, which states, “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 naivete 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.” (Emphasis added.) However, the dissemination or reproduction of the testing materials in public or in publications subject to general public distribution is not at issue here, as it will be subject to a protective order.

Dr. Boone could fulfill her ethical obligations by agreeing to a protective order. “The most common resolution of this type of dispute [whether to compel production of raw test data] has been some compromise between full, unconditioned disclosure and total exemption from the Federal Rules of Civil Procedure. One court found that testing materials need only be turned over to opposing counsel’s qualified expert witness. Other courts have resolved the conflicting interests by issuing a protective order.” (Taylor v. Erna (Aug. 3, 2009 Dist. of Mass.) 2009 U.S. Dist. LEXIS 23578, *7 (citations omitted).) The Court notes that unpublished federal district court opinions are citable as persuasive, although not precedential, authority. (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1301 fn. 11.)

In sum, the Court orders the parties to meet and confer to draft a stipulated protective order confining the scope of disclosure and use of the raw test data 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.

II. Audio recordings

Plaintiff requests that he 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.” 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.)

Thus, Plaintiff is entitled to a full audio recording, including the testing portion. Again, any ethical concerns will be resolved by the parties entering into a protective order.

Lastly, Defendants argue that protective orders do not offer adequate protection for highly sensitive test data. According to Defendants, for example, attorneys would be motivated to breach test security to educate their clients to inflate the value of the case with claims of cognitive disfunction and/or brain injury. However, these are only hypothetical situations, as nothing before the Court suggests that any attorney has engaged in such misconduct.

Based on the foregoing, Defendant’s Motion to Compel Mental Examination of Plaintiff is GRANTED.