Judge: Michael J. Strickroth, Case: 2020-01145116, Date: 2023-07-24 Tentative Ruling

Motion to Compel Neuropsychological Exam

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

Defendant served a timely notice of examination on 03/31/2023. (Motion, Exhibit C.) Plaintiff contends the examination is unnecessary because she is not alleging damages for mental or emotional distress above and beyond garden variety mental and emotional distress and will not offer expert witness testimony regarding mental and emotional distress. (Opposition, 5:20-24.) Plaintiff also contends she has already undergone a defense neurological examination.

Plaintiff testified at her deposition she has experienced memory loss, irritability, slurring speech, tremors in her arm, problems sleeping, irritability, and headaches as a result of the slip and fall incident. (Motion, Ex. A at p. 137.) Therefore, Defendant is entitled to conduct a neuropsychological examination to evaluate Plaintiff’s alleged neuropsychological symptoms.

Code of Civil Procedure section 2032.320 states in part,

“(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.

(c) A stipulation by a party under this subdivision shall include both of the following:

(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.

(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.”

Here, Plaintiff has offered to stipulate that she is pursuing garden variety mental and emotional distress damages and will not present a neuropsychological expert at trial. However, section 2032.320(b) is inapplicable because the purpose of the neuropsychological examination is not to evaluate Plaintiff’s mental and emotional distress claim per se, but to evaluate possible neuropsychological effects of Plaintiff’s alleged traumatic brain injury.

Therefore, Plaintiff is orderd to undergo a neuropsychological examination by Defendant’s expert, Dean Delis, Ph.D at 1016 2nd Street, Encinitas, CA 92024. The examination shall take place on a single day and last no more than eight hours, not including breaks, and shall consist of the testing and examination set out in Defendant’s Notice of Examination. (Motion, Exhibit C.) The examination may be audio recorded by Plaintiff and/or by Defendant’s expert, but a representative of plaintiff or plaintiff counsel’s office is not permitted to be present.

The parties shall meet and confer prior to the hearing to propose a mutually agreeable date for the examination to occur within 30 days of the hearing.

Defendant to give notice.