I. BACKGROUND 

Plaintiff Shakiba Yegan (“Plaintiff”), filed this action against defendants Uber Technologies, Inc., Rasier, LLC and Rasier-CA, LLC, Cesar Augusto Campos Orellana and Francisco J. Giron for injuries arising from an automobile incident.   

At this time, defendants Uber Technologies, Inc., Rasier, LLC and Rasier-CA, LLC (collectively, “Uber”) moves for an order compelling Plaintiff to appear for a mental examination with neuropsychologist Howard J. Friedman, Ph.D., ABPP (“Dr. Friedman”) at 303 North Glenoaks Blvd., Suite 200, Burbank, CA 91502. 

Plaintiff opposes the motion, and Uber filed a reply. 

Uber avers Plaintiff has placed her mental condition in controversy, because Plaintiff attributes several neuropsychological conditions to the incident, such as headaches, forgetfulness, disequilibrium, and blurred vision. Plaintiff underwent a neurobehavioral status examination with Taylor Kuhn, PhD (“Dr. Kuhn”), who reported that Plaintiff suffered a mild traumatic brain injury because of the incident, and that Plaintiff has displayed below expectation performance in processing speed, working memory, retention and retrieval of unstructured verbal information, and mental flexibility. Uber avers it met and conferred with Plaintiff, but the parties were unable to reach an agreement on the specific conditions of the exam. 

Plaintiff argues that the neuropsychological examination is uncertain because it fails to specify the exact testing to be administered by Dr. Friedman. Plaintiff further contends that any order compelling Plaintiff to submit to a mental examination must have a strict time limit, must identify the specific tests, and that the raw data must be provided to Plaintiff’s counsel and Plaintiff’s neuropsychological expert. 

Uber asserts that there is no reason to limit the examination to 6 or 7 hours when Dr. Friedman intends for the examination to last no more than 7.5 hours. Uber argues Plaintiff improperly seeks to limit the number of valid tests Dr. Friedman may administer. Uber further argues that disclosure of the raw test data violates Dr. Friedman’s ethical violations, and that although Dr. Friedman will provide the material to Plaintiff’s neuropsychologist, he should not be required to provide the raw test data to Plaintiff’s counsel.  

II. MOTION TO COMPEL DEFENSE MENTAL EXAMINATION 

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).)   

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP §2032.020(a).)  This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.  (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)  Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)  Discovery responses can also frame the issues regarding the injuries and damages alleged.  Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)   

Here, the Court finds good cause for Plaintiff’s mental examination because Plaintiff has placed her mental condition at issue. Further, the moving papers do comply with CCP § 2032.310(b). The detailed listing of the potential tests is permitted pursuant to Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, and there is no requirement that the listed tests be comprised of only the “actual” tests to be performed. Plaintiff argues in a conclusory fashion that some of the tests are excessive, but provides no authority in support of this contention. Additionally, Plaintiff does not provide any justification for the mental examination to be subject to a strict time limit. Thus, the Court finds no good cause to limit the scope of the proposed mental examination.  

In terms of production of the raw data to Plaintiff’s counsel, the Court is guided by Carpenter v. Superior Court (2006) 141 Cal.App.4th 249 and Randy’s Trucking, Inc. et al. v. Superior Court, (2023) 91 Cal. App. 5th 818. 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.” (Id. at 848.) Thus, the Court finds it appropriate to order the production of the tests and testing material to Plaintiff’s counsel, subject to a protective order. 

III. CONCLUSION 

Uber’s motion to compel Plaintiff’s mental examination with Dr. Friedman is GRANTED. Plaintiff is ordered to appear for a mental examination with Dr. Friedman at 303 North Glenoaks Blvd., Suite 200, Burbank, CA 91502. Counsels must meet and confer to determine a mutually agreeable date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Uber may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service). The proposed scope of the examination, manner, conditions, and nature of the examination provided in the moving papers may not be expanded in connection with the compelled exam. Additionally, the Order granting the motion to compel mental examination is 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 any 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 Uber’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.   

PLEASE TAKE NOTICE: 

Dated this 19th day of March 2024