I. BACKGROUND 

Plaintiff Stephanie Blanks (“Plaintiff”) filed this action against defendants Donatello Stone Design Inc. (“DSD”), Wilmer Rolando Cruz Lopez, and Babken Ovsepian for damages arising out of a motor vehicle accident, specifically when she collided with a Ford F250 carrying concrete.  

DSD now moves for an order compelling Plaintiff to attend a mental examination with psychologist/neuropsychologist Kyle B. Boone, Ph.D., ABPP-ABCN, (“Dr. Boone”) at 24564 Hawthorne Boulevard, Suite 208, Torrance, CA 90505. Plaintiff opposes the motion, and DSD filed a reply. 

DSD contends Plaintiff claims in her written response to discovery that she suffers from: “traumatic brain injury, mental anguish, cognitive and memory deficits, changes in mood, fatigue, sleeping difficulties, difficulty concentrating, shock, anxiety, nervousness, anxiousness, difficulty speaking post-accident, mental fogginess, post concussive syndrome, and post concussive headache.” (Mot. River Decl. ¶ 3; Exh. A.) Plaintiff further claims that her on-going conditions are: “mental anguish, cognition, difficulty concentrating, fatigue, sleeping difficulties, behavior changes, memory difficulties, and mental fog.” (Ibid.) However, Plaintiff objected to the examination on the grounds that the mental examination is duplicative of the neurological examination conducted by Barry Ludwig, M.D. (“Dr. Ludwig”), that the mental examination notice did not specify the tests to be administered, and that Dr. Boone will not follow Randy’s Trucking, Inc. et al. v. Superior Court (2023) 91 Cal.App. 5th 818. The parties were unable to resolve the issue after meeting and conferring. 

DSD argues Plaintiff has placed her mental injuries in controversy by claiming a litany of psychological injuries, and that a neuropsychological examination is not the same as a neurological examination. DSD avers Dr. Boone has agreed to disclose the raw data to Plaintiff’s counsel’s licensed psychologist only, and that Dr. Boone agreed to record the entire examination. However, DSD argues that Dr. Boone will recuse herself if she is ordered to share raw data directly with Plaintiff or Plaintiff’s counsel because it violates the code of professional conduct. Dr. Boone is of the position that a protective order would not protect the integrity of the test due to personal experience. DSD asserts it will not be able to hire another psychologist to replace Dr. Boone. 

Plaintiff argues there is no good cause for a mental examination because Dr. Ludwig concluded Plaintiff does not need any additional testing and that she is not suffering from a traumatic brain injury. Plaintiff avers she is not being treated by a neuropsychologist and has not retained a neuropsychologist expert. Additionally, Plaintiff contends that DSD’s motion is procedurally defective because it does not comply with CCP section 2032.310(b), and that the list of tests provided in the Separate Statement does not specify the tests that are actually to be conducted. Alternatively, Plaintiff argues that should the motion be granted, that DSD’s neuropsychological expert must comply with current case law regarding disclosure of the examination and results so that Plaintiff can effectively cross-examine Dr. Boone. 

DSD reasserts that Dr. Ludwig conducted a neurological examination, not mental, and that the Court has discretion under Randy’s Trucking to order dissemination of the test data to a licensed psychologist only. Lastly, DSD avers that depending on the results of one tests, some of the others may become unnecessary, and to provide a list of only the actual tests to be performed would result in potentially unnecessary tests. 

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, and finds that DSD has sufficiently delineated the differences between the proposed neuropsychological examination with Dr. Boone and Plaintiff’s prior neurological examination with Dr. Ludwig to demonstrate the examinations are meaningfully different as to not be duplicative. Just because Plaintiff had not been previously evaluated by a neuropsychologist, or received a recommendation for one, does not mean she has not placed her psychological injuries at issue by claiming them in her written discovery responses.  

In terms of audio recording, contrary to DSD’s assertion that there is no statutory authority recognizing audio recording for a mental examination, 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.) Nonetheless, DSD acquiesces to the audio recording of the entire examination.  

DSD also argues it will not be able to find another neuropsychologist if Dr. Boone is ordered to provide the raw data to Plaintiff’s counsel. Dr. Boone refers to a collective statement by “85% of board-certified neuropsychologists in California” indicating they would withdraw from the case rather than turn over test information to attorneys. (Boone Decl. ¶ 6.) However, DSD has not provided any evidence that it has made any attempts whatsoever to contact other neuropsychologists and was unable to obtain one notwithstanding extensive effort. DSD thus has not provided sufficient evidence that it would be deprived of a neuropsychologist. Further, in terms of limiting dissemination to only another licensed psychologist, Plaintiff avers that she has not retained a neuropsychologist expert. The Court finds no justification to force Plaintiff to retain an expert in that field, against her own choice, for the purpose of receiving materials. Lastly, Dr. Boone declares that a protective order is futile, because she produced the materials in another case, and her data sheets were never returned at the conclusion of trial despite multiple requests. However, there is no indication that Plaintiff’s counsel would not comply with the safeguard of the test materials, such as keeping the material confidential and destroying the material once litigation and any statutory period for preservation of evidence has expired.  

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. 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.  

Pertaining to the list of tests, CCP §2032.310 provides that the motion shall specify the details of the examination. Although Plaintiff accurately points out that this information is neither in the Notice nor memorandum, it is nonetheless provided in the separate statement, which is part of DSD’s motion. Further, since Plaintiff is able recite the tests, Plaintiff is clearly on notice which tests are potentially to be conducted. The 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. 

III. CONCLUSION 

DSD’s motion to compel Plaintiff’s mental examination with Dr. Boone is GRANTED. Plaintiff is ordered to appear for a mental examination with Dr. Boone at 24564 Hawthorne Boulevard, Suite 208, Torrance, CA 90505; the manner, conditions, scope, and nature of the examination as previously noticed by DSD 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 does not meaningfully participate in the meet and confer process, DSD 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). 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 Plaintiff’s counsel to consult with Plaintiff’s own experts and to conduct cross-examination of DSD’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 8th day of April 2024