I. BACKGROUND 

Plaintiffs Sirena Torres, Marena Torres (“Marena”), and Jesus Torres, Jr. (collectively, “Plaintiffs”) filed this action against defendant Anthony Dwain Stanford (“Defendant”) for damages arising out of a motor vehicle accident.  

Defendant now moves for an order for leave to conduct a neuropsychological examination of Plaintiff Marena with George K. Henry, Ph.D./ABPP-CN (“Dr. Henry”) at 11601 Wilshire Blvd., 5th floor, Los Angeles, California 90025.  

Defendant avers that the parties do not dispute that Plaintiff Marena has placed her mental condition at issue. However, the parties are unable to agree on three issues: (1) whether Plaintiff Marena is allowed to audio record the testing portion of the examination, (2) the production of the raw data, and (3) Dr. Henry’s late cancellation/no-show fee.  

In opposition, Plaintiff Marena avers that the raw data is necessary to be used at trial to form the basis for expert opinions, but that defense counsel and Dr. Henry will not produce it even if subject to a protective order. Further, Plaintiff asserts she is entitled to audio record the examination pursuant to CCP section §2032.530(a), and that she should not have to pay any cancellation fee because a $6,500 fee is unreasonable.  

In reply, Defendant avers that he agrees to share raw data “as long as Dr. Henry is not placed in a position that endangers his professional licensing” by providing the data to Plaintiff’s designated psychologist only Defendant reiterates his opposition to the audio recording portion involving raw data, and avers the cancellation fee is actually $3,250, not $6,500. 

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, Plaintiff Marena concedes that there is no dispute of the propriety of a mental examination, and that she has agreed to appear for one.  

In terms of audio recording, CCP § 2032.530(a) provides, “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Plaintiff has the right to record the entire mental examination, and nothing in the statute limits recording to only selected parts of the examination. (Golfland Entertainment Ctrs., Inc. v. Sup.Ct. (2003), 108 Cal.App.4th 739, 750.) In other words, there is no basis to limit Plaintiff’s right to audio record to only the interview portion of the examination.  

As to the issue of production of the raw data, 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. The Court understands that there is a clash between the neuropsychologist community’s desire to prevent disclosure of the raw data and the need for the materials for purposes of litigation. However, 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 that the materials be destroyed at the conclusion of trial.  

Lastly, in terms of the cancellation fee, the arguments concerning its reasonability is premature considering no cancellation fee has been incurred; should Plaintiff Marena appear for her mental examination after the parties have met and conferred on a mutually agreeable date, it will not be an issue. In the event that Plaintiff Marena fails to appear for her examination, and a motion to compel is brought later, the Court will consider the fee’s reasonability and any evidence to either support or detract its rate when or if it becomes an actual issue.  

III. CONCLUSION 

Defendant’s motion to for leave to conduct Plaintiff Marena’s mental examination with Dr. Boone is GRANTED. Plaintiff Marena is ordered to appear for a mental examination with Dr. Henry at 11601 Wilshire Blvd., 5th floor, Los Angeles, California 90025; scope of the examination provided in the Notice of motion (Mot. 2:9-18) may not be expanded in connection with this Order. Counsels must meet and confer to determine a mutually agreeable date and time for the examination; if Plaintiff Marena does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff Marena (extended per Code if by other than personal service). 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 audio-recording of the interview and examination so that it may be properly used by Plaintiffs’ counsel to consult with Plaintiffs’ own experts and to conduct cross-examination of Plaintiff Marena’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 12th day of April 2024