Judge Michelle C. Kim, Case 20STCV00468 2023-04-12 Tentative Ruling

On January 6, 2020, Plaintiff Elizabeth Amezquita (“Plaintiff”) filed this action against Defendant Kenneth Douglas Kochakji (“Defendant”) for injuries arising from a motor vehicle accident.

Defendant now moves for leave to compel Plaintiff’s neurological and mental/neuropsychological examinations.

2. Motion to Compel Mental Examination and Additional Physical Examination

A court order is required¿to obtain a party’s mental examination or additional physical 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.4^th¿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.)

The Court notes that the meet and confer requirement has been satisfied. (See Weixel Decl., ¶ 8)

Defendant moves to compel Plaintiff to undergo a neurological and mental exam because Plaintiff has alleged she continues to suffer from neurological and mental injuries, which include, but are not limited to headaches, anxiety, pain and loss of sensation in the extremities, severe emotional distress, difficulty sleeping, and cognitive impairment. (See Weixel Decl., ¶ 4.) In addition, as a result of the subject incident, Plaintiff suffers from forgetfulness and other memory issues, and has been diagnosed with concussions, TBI, depression, and memory and cognitive decline. (Id. at ¶ 5.) While Plaintiff has had an orthopedic medical examination, she has not been examined as to her neurological and mental injuries. Defendant contends that Plaintiff has put those conditions at issue, and that those examinations are necessary to prepare for trial.

Plaintiff generally contends that Defendant failed to establish good cause to compel Plaintiff’s neurological and mental examinations.

As a threshold matter, Defendant’s demand for a neurology exam with Kenneth Nudleman, M.D. still fails to comply with Code of Civil Procedure section 2032.320(d). “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))

Defendant’s demand for neurological examination with Dr. Nudleman provides that it “will consist of standard neurological non-invasive testing, such as motor, sensory, reflex, strength, and balance testing, and shall include and require an oral history to be given by plaintiff relative to the injuries plaintiff claims in the lawsuit (Weixel Decl., ¶ 15, Exh. D) but Defendant does not state what actual diagnostic tests Dr. Nudleman expects to use. (Carpenter, supra, 141 Cal.App.4th at 259.) Defendant must specify diagnostic tests and procedures, conditions, scope and nature of the examination. (Id.) Defendant does not specify the specific tests that will be performed, and instead generally refers to “standard neurological non-invasive testing.” In granting a motion to compel a mental examination, the court must list in its order the names of the tests to be performed, which it cannot do if the moving party has not provided them. (Carpenter, 141 Cal.App.4th at 260-262.) Accordingly, the Motion will be DENIED, without prejudice as to the demand for examination with Dr. Nudleman. In light of this ruling, the Court will not further analyze this Motion as to Dr. Nudleman.

The Court finds that Defendant’s demand for the mental/neuropsychological examination with Kyle B. Boone, Ph.D., does not suffer from the same deficiency as the demand for examination with Dr. Nudleman. The demand for examination with Dr. Boone provides, in relevant part, as follows:

“1. . . . [The] examination of plaintiff will take approximately six hours. . . .

2. . . . The first part of the examination will involve a history taking and observation of plaintiff for the purpose of gathering information in specific areas including current complaints for which plaintiff might seek care and the history of plaintiff’s alleged injuries and damages . . . A further history will be obtained concerning the development of psychological and physical symptoms, what treatments plaintiff has received, and the effect of those treatments on plaintiff’s symptoms. . .

3. . . . The second part of the examination will consist of the administration to plaintiff of a number of standard, validated psychological and neuropsychological tests. . . . The tests . . . are necessary and accepted by the psychological and neuropsychological community as useful and necessary in order to allow a psychologist to be able to provide an informed and objective opinion as to the cause, nature, and degree of emotional distress and cognitive dysfunction being claimed by plaintiff. Those tests are set forth in paragraph 5 below.

4. In addition to the history of the incident and psychological damages at issue, the examination will gather important information about plaintiff’s past psychological, psychiatric and related medical illnesses and difficulties, and past behavioral difficulties, and educational and occupational history. . . .

5. . . .Dr. Boone will conduct some or all of the following tests/exams, which are widely accepted by the neuropsychological community for determining the conditions and diagnoses, if any, and the severity of said conditions and diagnoses: Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visualspatial Memory Test – Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; and the Victoria Symptom Validity Test.” (Weixel Decl., ¶ 16, Exh. E.)

The Court finds that Defendant has shown good cause to allow for Plaintiff’s mental examination with Dr. Boone, as Plaintiff represents that she continues to suffer from mental injuries as a result of the subject incident. Plaintiff has placed her mental condition at issue, and that examination is necessary for Defendant to prepare for trial.

Plaintiff requested limitations on the examination if the motion was granted. Below are the specific limitations that were discussed in Plaintiff’s Opposition.

Plaintiff suggests that Dr. Boone may ask questions that are not relevant to the subject matter, which include questions regarding Plaintiff’s truthfulness and sex life, apparently questions that are asked on the “MMPI 2 ND 3.” (See Plaintiff’s Opposition at page 6, line 2.). It is unclear if the “Minnesota Multiphasic Personality Inventory – 3” is the test that Plaintiff references as
MMPI 2 ND 3.” However, the demand for examination with Dr. Boone states that the exam will relate to Plaintiff’s injuries arising from the subject incident. (See Weixel Decl., Exh., E.) To the extent Plaintiff believes that Dr. Boone is asking inappropriate questions, she may decline to answer, and Defendant will have the option to compel Plaintiff’s answer, to the extent they deem the response necessary and relevant.^{^[1]}

Plaintiff suggests that questions regarding medical treatment of her family members is inappropriate; this Court agrees, and the defense does not appear to argue otherwise.

Plaintiff also seeks to prevent Dr. Boone from asking questions relating to the incident. The Court finds Plaintiff’s requested limitation to be improper. Questions regarding the incident are directly relevant, and necessary to lay the foundation for questions relating to Plaintiff’s mental injuries.

Plaintiff contends that she should be allowed to audio record the examination, and the defense is in agreement that the interview portion may be recorded. In any case, Code of Civil Procedure section 2032.530(a) expressly provides that the “examiner and examinee shall have the right to record a mental examination by audio technology.”¿ The Court will permit the audio recording of the mental examination.

Plaintiff also requests reasonable breaks during the examination. There is no indication that Plaintiff’s requests for reasonable breaks will be declined, and the Court will not make an express order requiring breaks. The Court will expect the parties and their experts to comport with common courtesy, decency, and professionalism at all times.

Plaintiff requests that her neurologist/neuropsychologist be allowed to attend the examination. The Court declines Plaintiff’s request. There is a special need for rapport between examiner and examined during a mental examination, and thus, neither counsel, court reporters, or third parties 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.) Courts have allowed a third party to attend a mental examination when that person’s presence was necessary. (See Golfland Entertainment Centers, Inc. v. Superior Court¿(2003) 108 Cal.App.4th 739, 748 [where the examinee’s mother was allowed to attend because there was the potential that the examinee would give repetitive answers due to brain injury) Here, Plaintiff has failed to show that having her neurologist/neuropsychologist present is necessary.

Plaintiff requests the disclosure of the exam materials, exam results, and disclosure of the raw data from the examination to her attorneys. Defendant does not oppose the disclosure of the raw data directly to Plaintiff’s licensed psychologist, as long as there is a protective order limiting the use and further disclosure of the material to safeguard the integrity and validity of the tests. The Court orders the raw data to be exchanged directly between the Defense neuropsychologist and Plaintiff’s licensed psychologist and not shared with any party or their counsel.

Lastly, Plaintiff requests that she not be held responsible for any cancellation fees. The Court finds that if Plaintiff cancels an exam without good cause, she would be subject to paying the cancellation fee.

Thus, Defendant’s Motion is GRANTED in Part and DENIED in Part, as specified above. Plaintiff is to appear for examination with Kyle B. Boone, Ph.D., on __________, 2023, _________ a.m./p.m., at 24564 Hawthorne Blvd., Suite 208, Hillside Village Building B, Torrance CA, 90505. The specific tests that Dr. Boone may perform are: Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visualspatial Memory Test – Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; and the Victoria Symptom Validity Test.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The Court notes that there are some areas of inquiry that are generally prohibited, such as communications between an attorney and a client, and cautions Defendant’s examiner to not seek private, privileged, confidential, or irrelevant information. The Court further notes that Plaintiff cannot claim a right to privacy, or that information is privileged confidential, and/or irrelevant if the information sought is related to the specific issues that Plaintiff brought before the Court. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 859.)