Judge Richard S. Whitney, Case Number: 37-2021-00038852-CU-PO-CTL, Date: 2024-05-31 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2021-00038852-CU-PO-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited PI/PD/WD - Other Discovery Hearing 37-2021-00038852-CU-PO-CTL OHALLORAN VS HARNEY HOSPITALITY LP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS' MOTION AND MOTION TO COMPEL NEUROPSYCHOLOGICAL INDEPENDENT MEDICAL EXAMINATION ('IME') OF PLAINTIFF TRACY O'HALLORAN is GRANTED, in part, and DENIED, in part.

Defendants Otis Elevator Company, Best Western Hacienda Hotel, Harney Hospitality, L.P., and William H. McWethy, Jr. ('Defendants') seek to compel Plaintiff TRACY O'HALLORAN ('Plaintiff') to submit to an IME by Defendants' neuropsychologist Dr. Dean Delis, Ph.D., ABPP/CN. The parties do not disagree that Defendants may compel Plaintiff to submit to an IME, but Plaintiff demands that Defendants first agree that Dr. Dean Delis will provide all raw testing materials directly to Plaintiff's counsel, as well as permit a full audio recording of the IME, including the testing component of the IME. Plaintiff also asserts the proposal as to the IME does not comply with applicable law.

CCP section 2032.020 provides, in part: (a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.

(b) A physical examination conducted under this chapter shall be performed only by a licensed physician or other appropriate licensed health care practitioner.

(c)(1) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.

(Code Civ. Proc., � 2032.020.) The Court 'shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.' (Code Civ. Proc., � 2032.320.) '[G]ood cause' requires the moving 'party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.' (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) '[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.' (Id. at 839.) It is undisputed that Plaintiff has placed his mental health at issue and that Defendants have the right to conduct an IME. The parties disagree as to whether Dr. Dean Delis should be forced to share raw testing materials and to allow full audio recording of the entire IME. In Randy's Trucking, Inc. v. Superior Calendar No.: Event ID: TENTATIVE RULINGS

3104821 64 CASE NUMBER: CASE TITLE: OHALLORAN VS HARNEY HOSPITALITY LP [IMAGED] 37-2021-00038852-CU-PO-CTL Court of Kern County (2023) 91 Cal.App.5th 818, the court considered whether to reverse an order (and motion for reconsideration) that required the 'defendants' neuropsychologist to transfer raw data and an audio recording of the examination to plaintiffs' attorney subject to a protective order (the transmission order).' (Id. at 824.) The arguments made in Randy's Trucking are essentially identical to those made by Defendants here. The court noted that '[w]hile defendants assert plaintiffs' attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.' (Id. at 838.) More importantly, the court concluded that the trial court had discretion to order disclosure of test materials or test data when ordering a mental examination notwithstanding the examiner's ethical and professional obligations. (Id. at 833-838.) Importantly, the trial court's order included a protective order. Plaintiff in this case also proposes a protective order. In Randy's Trucking the court noted the doctor's declaration 'did not state that a protective order would not satisfy her ethical concerns.' (Id. at 841.) Defendants' arguments essentially rely on the belief that a retained neuropsychologist would be less likely to breach their ethical and professional obligations than an attorney who is subject to the requirements of a protective order. The Court will not speculate as to who is more likely to breach their obligations. Plaintiff could assert the potential for abuse in the absence of full disclosure and the risk of a retained neuropsychologist breaching their ethical and professional obligations, just as Defendants can assert the potential for abuse by Plaintiff's counsel. The detection of violations of a protective order could potentially be difficult, but so would knowing whether a retained neuropsychologist breached their ethical and professional obligations. The Court is unconvinced that a neuropsychologist has a stronger incentive than an attorney to not violate their ethical and professional obligations.

As in Randy's Trucking, Defendants represent that Defendants' chosen expert, Dr. Dean Delis, will recuse from this case in the event Plaintiff's counsel is given access to the raw data and allowed full audio recording of the IME. The court in Randy's Trucking was unconvinced the defendants could not find a replacement. Even if Dr. Dean Delis recused, Defendants have not shown they could not find a replacement. It would be very difficult to believe Defendants could not find a replacement in light of the ruling in Randy's Trucking, as long as a sufficient protective order is required. The Court exercises its discretion to order transmission of all raw data to Plaintiff's counsel subject to a stipulated protective order to which the parties must agree. The parties are order to meet and confer regarding a stipulated protective order.

Plaintiff also asserts Defendants' IME proposal violates CCP section 2032.530. 'The examiner and examinee shall have the right to record a mental examination by audio technology.' (Code Civ. Proc., � 2032.530(a).) Defendants wholly fail to acknowledge CCP section 2032.530 in their moving papers.

Defendants' concern appears to be the ability to replicate the purportedly proprietary tests by using the audio recordings.

[R]ecording only the examinee's responses would defeat the main purposes of the audiotaping, which are to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee's interests are protected (especially since the examinee's counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court.

(Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750.) The Court agrees Plaintiff must be permitted to audio record the entire IME if it is subject to an appropriate protective order. The Court notes that CCP section 2032.530 supports the notion that Defendants' concerns about dissemination of testing materials are not equally shared by the Legislature, but rather that the Legislature is more concern about the ability to protect against abuse by the examiner.

Plaintiff also takes issue with the lack of specificity as to the tests to be performed and the names of the persons conducting the IME. 'An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic Calendar No.: Event ID: TENTATIVE RULINGS

3104821 64 CASE NUMBER: CASE TITLE: OHALLORAN VS HARNEY HOSPITALITY LP [IMAGED] 37-2021-00038852-CU-PO-CTL tests and procedures, conditions, scope, and nature of the examination.' (Code Civ. Proc., � 2032.320(d).) Defendants' proposed stipulation as to the IME states 'Dr. Delis will conduct the psychological examination on a date to be agreed upon by Plaintiff and Defendants, at his office, located at 1016 2nd Street, Encinitas, CA 92024.' (Decl. Amajoyi, Exhibit D.) However, Defendants do not specify the 'diagnostic tests and procedures, conditions, scope, and nature of the examination.' The proposal merely states '[t]he psychological examination will include an interview and, psychological testing.' (Decl. Amajoyi, Exhibit D.) This is too vague.

The Court disagrees that the proposal is too vague as to who will be performing the IME. The proposal states: 'Dr. Delis will conduct the psychological examination' and 'Dr. Delis' Examination of the Plaintiff will likely start at 9:00 a.m. or 9:30 a.m. and last until approximately 5:30p.m.' (Decl. Amajoyi, Exhibit D.) This is not too vague.

For the reasons discussed above, the grants the motion as to compelling Plaintiff to submit to an IME, but the motion is denied as to Defendants' demands that the raw data be withheld from Plaintiff's counsel and that Plaintiff be precluded from audio recording the entire IME. However, the Court finds the parties must agree on a protective order before Plaintiff is required to submit to an IME to assuage Defendants' concerns about use and/or dissemination of the test materials. Further, Defendants are ordered to specify the 'diagnostic tests and procedures, conditions, scope, and nature of the examination.' Plaintiff is ordered to submit to an IME within fourteen (14) calendar days of the parties entering into a stipulated protective order.

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