SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Jeffrey Braude (“Plaintiff”) filed this action against Defendant Kenneth Lew (“Defendant”) for damages arising from a motor vehicle incident.   

At this time, Defendant moves for an order compelling Plaintiff to appear for a mental examination with Charles Hinkin, Ph.D., (“Dr. Hinkin”) at 921 Westwood Blvd., Ste. 208, Los Angeles, CA 90024 at 9:00 a.m. Plaintiff opposes the motion, and Defendant filed a reply.  

Plaintiff does not dispute the necessity of a mental examination and has agreed to submit to a neuropsychological examination with Dr. Hinkin. The dispute is whether Dr. Hinkin must turn over raw testing materials directly to Plaintiff’s counsel. Thus, Defendant moves for an order that all raw data will be provided only to a licensed psychologist of Plaintiff’s choice.  

This matter was initially heard on October 19, 2023, wherein the Court initially declined to address the issue of raw testing materials and instructed Defendant to file a protective order. However, after having heard from defense counsel, the Court continued the motion to December 1, 2023, and provided that no further briefing would be considered. (Min. Order, Oct. 19, 2023.) 

Despite the order of no further briefing, Defendant filed an addendum and request to consider additional evidence on the motion. Ordinarily, the Court would not consider additional brief. However, in light of the issues raised, and the fact that the addendum was filed prior to Plaintiff filing his opposition, the Court will exercise its discretion here and consider the addendum notwithstanding its prior order.  

 

II. Evidentiary Objections 

Plaintiff submits three evidentiary objections. The objections are overruled.   

 

III. Motion to Compel the Defense Mental Examination and Custody of Audio Recordings 

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)  Plaintiff agreed to undergo a mental examination, and thus this is not at issue.   

Defendant argues Dr. Hinkin is under the duty to preserve the secrecy and integrity of the tests performed as part of a neuropsychological examination. Defendant essentially seeks a protective order specifying that all testing, raw data, and audio recordings be exchanged between only the parties’ experts. Defendant argues Dr. Hinkin will withdraw as an expert if ordered to turn over any raw testing data to Plaintiff’s counsel, and that Defendant will be unable to retain another neuropsychologist in the local community because no neuropsychologist will conduct the examination under those conditions. Defendant contends the official position of the American Academy of Clinical Neurology (AACN) provides that security is fundamental to the enterprise of psychological and neuropsychological testing, and that allowing non-psychologists to access test questions would undermine the effectiveness and validity of the tests. Defendant also cites to American Psychological Association (APA) Ethics Code section 9.11, that psychologists should make reasonable efforts to maintain the integrity and security of test materials, and California Code of Regulations, title 16, section 1396.3 (“section 1396.3”), which provides psychologists shall limit access to tests or devices to persons with professional interests who will safeguard their use.  

In Carpenter v. Superior Ct., 141 Cal. App. 4th 249, the appellate court declined to address whether disclosure of the test questions and Plaintiff’s responses would violate the examiner’s ethical and professional obligations in reference to the APA Ethical Standards, because the materials were not presented to the trial court. “The fact that section 2032.530 permits the mental examination to be audiotaped, however, does not provide statutory authority for compelling the examiner to provide a copy of the written test questions and answers.” (Id. at 271.) However, although there is no express statutory authority, “neither is there statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the written test questions and answers.” (Ibid.) Therefore, the appellate court decided it would be “remanding the matter for the trial court to decide the issue anew, the court may consider at that time the parties' arguments regarding the examiner's ethical and professional obligations.” (Id. at p. 275) The appellate court recognized the trial court has broad discretion in discovery matters, and has the discretion to order the disclosure of such materials even if no statute authorizes it.   

The parties cite to Mark Ellensohn v. City of Burbank, et al., 2022 Cal. Super. LEXIS 37210 and Randy’s Trucking, Inc. et al. v. Superior Court, (2023) 91 Cal. App. 5th 818. The Ellenson case was decided by Judge Ralph Hofer in Department D of the Glendale Courthouse recently in June 2022. Trial court rulings have no precedential value. (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.) Following Ellensohn came Randy’s Trucking, Inc. et al. v. Superior Court, (2023) 91 Cal.App. 5th 818, a recently published decision from the Court of Appeal which provided a measure of guidance on the issue. Decisions of every division of every district of the CA Courts of Appeal are binding on all Superior Courts in California. (Auto Equity Sales, Inc., 57 Cal. 2d 450, 455.) Plaintiff contends Randy’s Trucking stands for the notion that the Court “should” order disclosure of raw data to counsel, and not “can” order. Defendant contends the facts in Randy’s Trucking are distinguishable from the particular facts here. 

Contrary to Plaintiff’s assertion, Randy’s Trucking did not stand for the notion that a court “should” order disclosure of raw data in most instances. Rather, Randy’s Trucking, consistent with the rationale provided in Carpenter v. Superior Ct. (2006) 141 Cal. App. 4th 249 and Roe v. Superior Ct. (2015) 243 Cal. App. 4th 138, affirmed that the court has discretion to order the disclosure of such materials even if no statute authorizes it. The issue in Randy’s Trucking was whether the trial court had abused exercising its discretion in ordering the transmission of the raw data and audio recording to plaintiffs’ counsel. The Randy’s Trucking Court found that while defendant’s neuropsychologist explained the dangers with third party observation, she did not explain why a protective order would not ameliorate those dangers. Further, she did not explain why her ethical obligations would be violated if a court ordered disclosure of the raw data and audio recording to plaintiffs’ attorney subject to a protective order. Based on these facts, the appellate court concluded that the trial court reasonably could find plaintiffs had a legitimate need for the raw data and audio recording and the concerns about maintaining test security would be satisfied with a protective order. 

Further, Randy’s Trucking expressly declined creating a bright-line rule limiting transmission of neuropsychological and psychological testing materials and raw test data, as well as audio recordings of examinations, to licensed neuropsychologists or psychologists. Any concerns of the sufficiency of a protective order to protect test security and that no neuropsychological or psychological expert will comply with such an order “are better expressed to the Legislature, which is empowered to create evidentiary rules limiting the transmission of discovery materials.” (Randy's Trucking, Inc., supra, 91 Cal. App. 5th at 848.) 

Here, nothing in APA 9.11 or the official position of the AACN states that psychologists are absolutely not permitted to transmit raw data. Section 1396.3 concerns public distributions of information, which a protective order will adequately address. Defendant contends that a protective order will not remedy the issue because an attorney is not expected to safeguard the materials, and they are not subject to the same professional guidelines of the psychological community or have the same interests in maintaining test security. However, a protective order can be enforced against Plaintiff’s attorney if he or his staff were to violate it by contempt or other sanctions. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 317.) Defendant has not shown there is a substantial risk of intentional or inadvertent dissemination such that a protective order would not adequately address Dr. Hinkin’s concerns about test security, or the risk that Plaintiff’s counsel would be a “bad actor” who will contravene a protective order. Further, Defendant has not shown that it will be impossible to retain a neuropsychologist who will perform a neuropsychological examination under the condition of transmitting raw data to Plaintiff’s counsel and Plaintiff’s expert subject to a defined protective order.  

 

IV.        Conclusion 

Based on the foregoing, Defendant’s motion to compel a mental examination of Plaintiff is GRANTED but limited as follows: 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 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. The protective order should include instructions to destroy the material at the conclusion of the matter. 

 

Moving party is ordered to give notice.