Judge Ralph C. Hofer, Case BC648515 2023-01-20 Tentative Ruling

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, an explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light. On June 1, 2016, plaintiff underwent a surgical procedure on his left eye, and plaintiff’s ophthalmologist advised him that, in his opinion, the electrical explosion during the collision caused plaintiff’s eye damage. Plaintiff was further advised that he had sustained permanent vision loss and permanent damage. Plaintiff alleges that as a result of the intense bright explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish, diminished sense of direction, loss of earnings, loss of future earnings, and loss of earning capacity.

On March 11, 2022, the court heard an ex parte application by HHS Construction for an order compelling plaintiff to show up at his IME scheduled for March 14, 2022 with defendant’s expert, Dr. Ted Evans. The application was granted, and the court signed and evidently filed the order on the ex parte application, which order ordered plaintiff to appear for the IME on March 14, 2022 with Dr. Evans.

The file shows that on March 17, 2022, the court heard an ex parte application brought by HHS Construction for an order that the IME go forward and that plaintiff be sanctioned for not completing the IME on March 14, 2022. The court at the hearing denied the ex parte application without prejudice to seeking sanctions related to the aborted IME on March 14, 2022, and continued the matter to March 28, 2022 for further proceedings, and ordered the parties to meet and confer concerning the provisions of the IME notice and disposition and handling of any recordings of the IME session made by plaintiff.

“Plaintiff is ordered to appear for his independent mental examination with examiner Ted D. Evans, Ph.D on by July 8, 2022, or another mutually agreed upon date, at the location and under all conditions of the IME notice set forth as Exhibit 6 to HHS’ Ex Parte Application filed on March 10, 2022, and also attached to the Haynes Declaration as Ex. A, Ex. 6, entitled “Defendant HHS Construction, Inc’s Demand, Continued per Agreement, for Independent Medical Examination of Plaintiff, Mark Ellensohn,” dated November 19, 2021. The Court orders that the Demand be amended to substitute the word, “in,” for the word “is” at page 4, line 11 (para. 2)]. The amendments to that Demand otherwise requested by defendant are DENIED.

Plaintiff is required to follow the ordered protocol for audio recording of the separate parts of the examination, as set forth at the Demand at pages 3 and 4, including recording the orally administered psychological testing separately, and that at the conclusion of the exam, Dr. Evans will take possession of that recording, or the recording device if the recording cannot be detached from the recording device, and will provide it directly to plaintiff’s expert.”

The current motion is based on the previous court order issued in connection with the conduct of the second IME of plaintiff, the language of which defendant HHS Construction argues was further confirmed at an ex parte hearing on June 29, 2022. The minute order from that hearing shows the court denied the ex parte application brought by plaintiff, indicating the court would not sign an order in which an IME was no longer an issue, and would not sign a generic order. The court did not sign or file any order that date.

Defendant HHS Construction argues that since June 29, 2022, defendant has been circulating the order discussed at the June 29, 2022 hearing among potential psychologists and neuropsychologists in an attempt to find a replacement for defendant’s examining physician, who would not agree to conduct the examination under circumstances where he was required to turn over to plaintiff’s counsel certain raw data concerning the examination and testing, because he maintained he was ethically obligated only to turn over such information to a licensed mental health professional.

On July 28, 2022, HHS Construction brought an ex parte application to continue the trial date, arguing it had been unable to find a psychologist or neuropsychologist willing and able to comply with the court’s June 29, 2022 order, and required more time to find a replacement expert. Defendant filed with that application a Declaration of Phillip M. Hayes indicating that the five available neuropsychologists contacted by counsel to serve as defendant’s expert and conduct the IME indicated they would not be able to comply with the language in the court order, and attaching five declarations obtained from the five potential experts to that effect. [Hayes Decl., dated 07/26/2022, paras. 7, 8, Exs. 3-7]. The application was granted and the trial was continued from September 12, 2022 to February 6, 2023.

The current motion was originally heard on December 16, 2023. In the moving papers, HHS Construction had requested that the court continue the hearing on this motion and further continue the trial date in this matter in order to permit time for the court of appeal to act on a petition for writ of mandate filed by HHS Construction on August 26, 2022.

“The petition for writ of mandate, filed August 26, 2022, has been read and considered. It appearing that respondent court denied petitioner’s ex parte application for a protective order without prejudice at the June 29, 2022 hearing (see appendix, p. 323), and because petitioner has not shown that it presented to the respondent court the August 25, 2022 declaration of Philip M. Hayes and the five neuropsychologist declarations referenced in paragraph 5 therein and included in petitioner’s appendix as Exhibits 15-18, and requested modified orders from respondent court based on those declarations, the petition is denied as premature.”

“Plaintiff is ordered to appear for his independent mental examination with examiner Ted D. Evans, Ph.D on by [sic] July 8, 2022, or another mutually agreed upon date, at the location and under all conditions of the IME notice set forth as Exhibit 6 to HHS’ Ex Parte Application filed on March 10, 2022, and also attached to the Hayes Declaration as Ex. A, Ex. 6, entitled “Defendant HHS Construction, Inc’s Demand, Continued per Agreement, for Independent Medical Examination of Plaintiff, Mark Ellensohn,” dated November 19, 2021. The Court orders that the Demand be amended to substitute the word, “in,” for the word “is” at page 4, line 11 (para. 2)].

As noted above, the minute order from the hearing states that the court denied the ex parte application brought by plaintiff, indicating the court would not sign an order in which an IME was no longer an issue, and would not sign a generic order. The court evidently also did not sign the proposed order presented by defendant and attached to the moving papers as Exhibit 2.

In any case, the language at issue is language that permits the examining medical professional at the IME to submit raw data with respect to the examination directly to counsel for plaintiff subject to a protective order limiting use to this case, rather than submitting the raw data directly to a licensed psychiatrist, psychologist, or therapist, presumably plaintiff’s expert witness. Defendant relies on the June 29, 2022 order, attached to the Hayes Declaration as Exhibit 2. [Hayes Decl., paras. 4, 7, Ex, 2].

“Plaintiff’s counsel,__________ [redacted, evidently intended to identify by name plaintiff’s counsel] is bound by the Protective Order. Upon request and/or in the event that plaintiff has not yet retained/identified a psychological expert, ___________ [redacted, evidently intended to identify defendant’s IME examiner] will provide the orally administered psychological testing directly to plaintiff’s counsel within 30 days after completion of the examination. Plaintiff’s counsel is under strict order to not disseminate any portion of the psychological testing/recording to any third party, excluding plaintiff’s expert, and such testing may only be used in this case.”

“At the conclusion of the examination, in compliance with the 2022 California Board of Psychology Laws and Regulations, section 1396.3, _______ [redacted, evidently intended to identify defendant’s IME examiner] will provide the audio recording of the orally administered neuropsychological testing directly to a licensed psychologist of Plaintiff’s choosing, which includes Plaintiff’s treating psychologist, Dr. Annet Assilian, Ph.D., upon request for such recording from the psychologist to _________. Plaintiff’s counsel, being bound by such protective order, shall also be allowed to make request for the recording for the limited purpose of preparing plaintiff’s case for trial. Also, in compliance with 2022 California Board of Psychology Laws and Regulations, section 1396.3, any request to _______ for any raw data from the administered testing, shall be conditioned on _______ providing the data directly to the licensed psychologist of Plaintiff’s choosing, including Dr. Assilian, and/or to plaintiff’s counsel and shall conform to the conditions set forth page 4, lines 7 to 18, of the November 19, 2021 IME Notice.”

Defendant argues that the submission via disclosure of a recording of the testing portion of the IME of raw data to a non-licensed mental health professional such as counsel for plaintiff would compromise the ethical obligations of the examining mental health professional, and pose a risk of the raw data being improperly interpreted or the testing protocols disseminated, jeopardizing their value.

HHS Construction argues that the examining neuropsychologist originally designated by defendant to conduct the IME, Dr. Evans, stated he would have to withdraw from the case if the court ordered him to conduct the examination under circumstances where he was required to turn over raw data from the examination directly to plaintiff’s counsel. [Hayes Decl., para. 3]. Defendant argues that the expert has taken the position that he is ethically obligated only to turn over such information to a licensed mental health professional.

HHS Construction argues that since June 29, 2022, defendant has been circulating the order including the procedure pursuant to which the recording and raw data information, upon request, may be directly disclosed to plaintiff’s attorney, among potential psychologists and neuropsychologists in an attempt to find a replacement for defendant’s original examining neuropsychologist.

HHS Construction indicates in this motion that HHS Construction has now contacted, over the last five months, approximately 48 available psychologists/neuropsychologists who do forensic work, none of whom have indicated a willingness or ability to perform the IME pursuant to the language in the June 29, 2022 order. [Hayes Decl., para. 7]. Of the 48 candidates, 22 completed declarations stating the reasons for declining the request to perform the IME. [Hayes Decl., para. 7]. Those declarations are attached as Exhibit 5.

“I have reviewed the court’s Order and note that in paragraph 2, it provides that the examiner “will provide the orally administered psychological testing directly to plaintiff’s counsel within 30 days after completion of the examination.” I also note in paragraph 5, the court’s Order allows Plaintiff’s attorney to make a request directly to the IME examiner for the recording and any raw data from the administered testing. After reviewing this language in paragraphs 2 and 5, I informed HHS counsel that I cannot undertake performing the IME, as the language in the court’s Order [allows an audio recording and raw data to be obtained by persons other than those qualified to interpret the data, which] clearly violates the directive of the 2022 California Board of Psychology Laws and Regulations, §1396.3, as well as the ethical principles I am bound to uphold as a licensed psychologist in California.”

“A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.”

This section does not state that a mental health professional is only allowed to provide information concerning the defined testing or assessment devices only to another licensed psychologist. As the transcript submitted with the moving paper shows, this court has previously noted that the attorney for plaintiff has a professional interest in representing the plaintiff, and is subject to an express protective order prohibiting dissemination of the information. The attorney is not the public or engaged in making publication subject to public dissemination as described in the regulation. The attorney is a person with professional interests who is bound to safeguard the use of the tests or assessment devices.

A licensed attorney is obligated by the law, professional responsibilities, and the attorney’s position as an officer of the court not to violate a protective order, or be held in contempt of court, and risk professional discipline. Under the circumstances, plaintiff’s attorney appears to be a person with professional interests who will safeguard the material produced, as required under the regulation.

The court is not persuaded by defendant’s argument that the material recorded during the mental examination could be disclosed, even unintentionally, and widely disseminated due to the current nature of the internet, technology, and information sharing. The court is reluctant to base a ruling in connection with a discovery order to which the legislature has determined plaintiff has a “right,” based on the argument suggested by defendant that attorneys cannot be trusted to comply with the law, to comply with protective orders issued by the court, or to honor their professional conduct responsibilities. An exception to the statutory right based on such an argument would be best addressed to the legislature.

Defendant HHS Construction refers to various ethical responsibilities of mental health care professionals, but the only direct material provided to the court does not appear to be an enacted ethical canon or regulation, but is entitled, “The Official position of the American Academy of Clinical Neuropsychology on test security,” and shows that it was published online on January 17, 2022. [Hayes Decl., Ex. 6, p.1, (pp. 431-432)].

“Information that in any manner undermines current or future use of a psychological or neuropsychological test is not to be divulged or made accessible to nonpsychologists. Such information includes test rationales and paradigms, instructions and procedures, stimuli (including test questions and answers), and scoring methods. This prohibition applies to all assessment settings, including evaluations conducted in the context of civil and criminal forensic litigation, disability claims, academic admissions or accommodations, and patient care and research….

Psychological and neuropsychological test security is a critical issue which, without meticulous adherence by practitioners, threatens the entire enterprise of psychological and neuropsychological testing. If test questions and stimuli, instructions, scoring methods, and other sensitive information become available to non-psychologists, test result accuracy will be sacrificed, at considerable risk and cost to society, as well as to the viability of clinical neuropsychology as a specialty.

It is not explained how this material imposes enforceable ethical responsibilities on mental health care professionals. Defendant offers no legal expert testimony on the matter, and no legal analysis in connection with why mental health care professionals would be bound to follow this official position. As pointed out in the opposition, the defense expert does not own the testing procedures, has no known patent or trademarks in the materials, and defendant fails to cite any case law interpreting the statutes, regulation, or official position in connection with a defense-noticed psychological examination in ongoing litigation.

Defendant in reply argues that the law in support of HHS Construction’s position was presented during the original hearing of HHS Construction’s motion for protective order and cites to case law. This issue is not appropriately raised in the reply papers, rather than in the moving papers, leaving plaintiff no opportunity to address these authorities. See Balboa Ins. Co. v. Aguirre (1983, 2nd Dist.) 149 Cal.App.3d. 1002, 1010 (“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”).

Moreover, the reply argument underscores the problem with this motion that this motion may well be considered a motion for reconsideration which does not comply with the requirements of CCP section 1008 with respect to bringing such a motion. Specifically, the law relied upon in the reply, to the extent it is argued was presented in the previous motion, would not constitute new law sufficient to support the court reconsidering its previous decision. To the extent the reply takes the position that the law was previously presented prior to the June 10, 2022 hearing, the law would not be new law, this court in its previous minute order in connection with that hearing considered and addressed the law cited in that motion, and determined that the cited law did not warrant the imposition of the protective order sought by defendant. [See Minute Order, 06/10/2022]. It is not clear why the court would now be obligated to revisit that determination of the effect of the case law to this matter at all, let alone in response to arguments made in a reply.

Moreover, the argument asserted by defendant is not based on the risk that plaintiff in this matter would have access to test questions and answers in advance of examination but based on the fear that counsel for plaintiff could use the information obtained after plaintiff’s examination to prepare other clients in future cases for their examinations.

Again, while the court appreciates the value of the development of test protocols over time, and of the examinee not being aware of questions in advance of an examination, and the potential impact on society if there were to be a disclosure of testing protocols outside the strictures of this litigation, the argument depends on an eventuality that attorneys will not obey the law and maintain the confidentiality of records. It also appears that in the current situation, even if the attorney were not permitted to obtain the raw data directly from the mental health care professional conducting the examination, defendant has all along conceded that the attorney would eventually be able to obtain that information from plaintiff’s own mental health care professional who is provided the information by defendant’s professional and is considered qualified to interpret the data. Such a situation would be subject to a very similar risk of dissemination to third parties as that purportedly posed by the submission of the information directly to an attorney who is subject to a protective order.

HHS Construction argues that it will be severely prejudiced if it is prevented from having a mental health expert at trial, and that consequently a way must be found to allow HHS Construction to have a neuropsychologist perform a mental examination of plaintiff under conditions which do not require that neuropsychologist to violate his or her ethical and legal obligations.

The prejudice would appear to be that defendant cannot at this time find a mental health professional willing to conduct a mental examination on the terms set forth in this litigation, which is not exactly the same as being deprived of an expert at all. It is not clear how this prejudice overrides the statutory right to record a mental examination.

The reply also argues that HHS Construction would be prejudiced by not being able to conduct discovery by a mental examination, but it is also not clearly articulated how this prejudice overrides the statutory requirements. It does not appear in this case that it is plaintiff or the court which are imposing this prejudice, but the reluctance of a third-party industry to comply with a court order. The industry should arguably be taking this matter up with the legislature.

In addition, as noted above, the motion here primarily reargues the same arguments made in the previous hearings concerning the IME order, without citing to legal authority under which this procedure would be proper, or bringing, for example, a motion for reconsideration, following the procedural requirements of CCP section 1008.

Defendant also indicates that it has been in contact with other defense counsel with similar issues with mental examinations, where plaintiff and their counsel are demanding that the attorney have a copy of an audio recording of the mental examination and/or direct access to data, and that one writ with such issues has been taken up by the court of appeal, Fifth District, with the court of appeal on October 6, 2022 issuing an order to show cause why the relief sought by defendants should not be granted. [See Exhibit 8]. It is not clear if defendant is urging the court to await the outcome of that writ proceeding before ruling on this motion. There is no legal authority cited under which delaying the resolution of this matter based on another matter would be warranted, particularly given the age of this case, and over the objection of plaintiff.

The reply does not further address this argument, but requests that defendant be permitted sufficient time to immediately and promptly address the scheduling and details concerning going forward with the IME, which would be inconsistent with any request that determination of this motion be delayed while the other writ is pending. The motion will not be further continued based on this argument.

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