Judge: Ronald F. Frank, Case: 23TRCV00820, Date: 2024-11-19 Tentative Ruling
Case Number: 23TRCV00820 Hearing Date: November 19, 2024 Dept: 8
Tentative Ruling¿¿
¿¿¿
HEARING DATE: November 19, 2024
¿¿¿
CASE NUMBER: 23TRCV00820
¿¿
CASE NAME: Jose Nolazco and
Erika Nolazco v. Kacy Chieko Watanabe, et al.
¿¿ ¿¿¿
MOVING PARTY: Defendant, Kacy Chieko Watanabe
¿¿¿
RESPONDING PARTY: Plaintiffs,
Jose Nolazco and Erika Nolazco
TRIAL DATE: May 5, 2025
¿¿¿
MOTION:¿ (1) Motion for an Order
Compelling an Independent Mental Examination of Plaintiff
Tentative Rulings: (1) GRANT with procedural requirements. The Court would like to know whether Plaintiff
already has retained an expert or consultant in neuro psychology, whether there
is any dispute over the list of proposed standardized tests to be used, and whether
Plaintiff has the intention to audio record for himself the IME interview and
testing, which might eliminate the need for the defense doctor to provide a
copy of his own recording to Plaintiff’s counsel. The arguments of both sides here are
remarkably similar to those made before the Fifth District in Randy's Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, where the appellate court found the
trial court did not abuse its discretion in compelling the IME plus ordering
compliance with the procedures Plaintiff seeks here, subject to a protective
order to address the concerns about test security and integrity. The Court will also consider including in its
order on this motion language that prohibits Plaintiff’s counsel, consultants
and experts from previewing any of the standardized tests with Plaintiff to
maintain the integrity of the test process.
I. BACKGROUND¿¿¿
¿¿¿
A. Factual¿¿¿
¿¿¿
On
March 20, 2023, Plaintiffs, Jose Nolazco and Erika Nolazco (collectively,
“Plaintiffs”) filed a complaint against Defendants, Kacy Chieko Watanabe, and
DOES 1 through 50. The complaint alleges causes of action for: (1) Negligence;
and (2) Loss of Consortium.
Based
on the complaint, Defendant, Kacy Chieko Watanabe (“Watanabe”) noticed an
Independent Mental Examination (“IME”) to be conducted by Neuropsychologist,
Kyle B. Boone, Ph.D. (Declaration of Tiffany L. Steward (“Steward Decl.”), ¶
6.) Defendant Watanabe asserts that the neuropsychologist examination and
testing is necessary to evaluate the complexities of Plaintiff’s claimed
traumatic brain injury and resulting complaints, complications and treatment.
(Steward Decl., ¶ 6.) The IME was initially scheduled for November 30, 2023 at
9:30 a.m. and then rescheduled for December 18, 2023 at 9:30 a.m. (Steward
Decl., ¶ 6.)
Plaintiffs
responded with written objections to the Demands for an IME on October 16, 2023.
(Steward Decl., ¶ 7.) Although Plaintiff was agreeable to submitting to the
neuropsychologist evaluation, Plaintiff took issue with the handling of the raw
test data, test questions and audio recording of the testing portion with his
counsel of record. (Steward Decl., ¶ 7.) Steward explains that attorney Justin
Hanks (“Hanks”) initially assisted with the preparation of this motion,
including the meet and confer efforts, but that he has since left Steward’s
office before filing the present motion and declaration. (Steward Decl., ¶ 8.)
However, Steward spoke with Hanks concerning his meet and confer efforts prior
to filing the moving papers, and she was provided with his email correspondence
regarding the meet and confer efforts. (Steward Decl., ¶ 8, Exhibit H.)
Steward
describes that the reason for the delay in the originally noticed IME and that
Plaintiff was hospitalized due to reoccurring seizures and there were concerns
that these seizures called into question Plaintiff’s ability to sit for the
exam and the validity of the testing results. (Steward Decl., ¶ 11.) However,
as of Plaintiff’s deposition in June 2024, the seizures appeared to be
controlled by medication and Steward asserts Defendant has confirmed with its
expert that the examination and testing can be performed safely. (Steward
Decl., ¶ 12.)
Despite
the parties’ meet and confer efforts, they were unable to reach an agreement
regarding the discovery dispute concerning the handing of the raw test data,
test questions and audio recordings. (Steward Decl., ¶¶ 9-10.) Thus, Defendant
has brought this Motion to Compel Independent Mental Examination of Plaintiff
Jose Nolazco with Neuropsychologist, Kyle B. Boone, Ph.D. and Request for
Protective Order.
B. Procedural¿¿¿
On October 11, 2024, Defendant filed
this Motion to Compel Independent Mental Examination of Plaintiff, Jose
Nolazco. On November 4, 2024, Plaintiffs filed an opposition brief. On November
12, 2024, Defendant filed a reply brief.
II. ANALYSIS¿¿
A. Legal Standard
A court order is
required¿to obtain a party’s mental examination. (Code Civ. Proc. §
2032.310(a).)¿¿Such an order may be made only after notice and hearing, and for
"good¿cause shown."¿ (Code Civ. Proc., §§ 2032.310(c),
2032.320(a).)¿¿¿¿
The motion must state
the time, place, identity and specialty of the examiner, and the "manner,
conditions, scope and nature of the examination."¿(Code Civ. Proc., §
2032.310(b).)¿¿“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 tests and procedures, conditions, scope, and nature
of the examination.” (Code Civ. Proc., § 2032.320(d).)¿¿“The court is to
describe¿in detail¿who will conduct the examination, where and when it
will be conducted, the conditions, scope and nature of the examination, and the
diagnostic tests and procedures to be employed. The way to describe these
‘diagnostic tests and procedures’—fully¿and¿in detail—is to list
them by name.” (Carpenter v. Superior Court¿(2006) 141 Cal.App.4th 249,
260.)¿
The moving party¿must
support their motion with a meet and confer declaration.¿¿(Code Civ. Proc., §
2032.310(b).)¿ A meet and confer declaration must state facts "showing a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion."¿ (Code Civ. Proc., §
2016.040.)¿¿¿¿ ¿¿
The examination will be
limited to whatever condition is "in controversy" in the action.¿
(Code Civ. Proc., § 2032.020(a).)¿ This means that the specific injury or
subject of the litigation must be directly invoked by the examination.¿ (See¿Roberts
v. Superior Court¿(1973) 9 Cal.3d 330, 337.)¿¿By alleging a causal link
between the emotional distress and the defendant's conduct, a plaintiff
"implicitly claims it was not caused by a preexisting mental condition,
thereby raising the question of alternative sources for the distress."¿ (Vinson
v. Superior Court¿(1987) 43 Cal.3d 833, 840.)¿¿However,¿a mental
examination is only appropriate where the plaintiff alleges continuing
emotional distress. (Doyle v. Sup. Ct. (Caldwell)¿(1996) 50 Cal.App.4th¿1878,
1886-1887.)¿¿"While a plaintiff may place his mental state in controversy
by a general allegation of severe emotional distress, the opposing party may
not require him to undergo psychiatric testing solely on the basis of
speculation that something of interest may surface."¿ (Vinson,¿supra,
43 Cal.3d at 840.)¿¿¿¿
B.
Discussion
Here,
Defendant argues that good cause exists to order Plaintiff, Jose Nolazco, to
appear for an Independent Medical Examination (“IME”) because his mental
condition is in controversy in this civil suit. Specifically, Plaintiff, Jose
Nolazco, claims a traumatic brain injury that continues to adversely impact his
physical, mental, and emotional condition and will require lifelong care. Defendant
relies on the California Supreme Court case of Vinson v. Superior Court
(1987) 43 Cal.3d 833 (“Vinson”). In Vinson, a worker brought suit
against a job interviewer and employer college district alleging sexual
harassment and intentional infliction of severe emotional distress. The
California Supreme Court reviewed the propriety of a trial court’s order
requiring the plaintiff to undergo a medical and psychological examination
without any limitation as to probing into her sexual history or practices. (Vinson,
43 Cal.3d 833, 840.) The Supreme Court concluded the defendants were entitled
to conduct a psychiatric examination given the facts pleaded by the plaintiff.
(Ibid.) However, the Court went on to find the defendants had failed to
demonstrate “good cause” to delve into plaintiff’s sexual history and practices
during the examination. (Id. at 842-844.) The Vinson Court
emphasized that plaintiffs have a constitutional right to privacy. (Ibid.)
This right includes privacy into one’s sexual conduct. (Ibid.)
In
the Vinson Court’s analysis of good cause, the Court acknowledged the
constitutional considerations involving an inquiry into a plaintiff’s sexual
history practices. (Id.at 841.) The Court’s reasoning in compelling the
IME (without probing into the plaintiff's sexual history or practices), was
that the plaintiff has asserted she continued to suffer diminished self-esteem,
reduced medication, sleeplessness, loss of appetite, fear, lessened ability to
help others, loss of social contacts, anxiety, mental anguish, loss of
reputation, and severe emotional distress. (Id. at 840.) Because of
this, the Court held that the truth of those claims was relevant to plaintiff’s
cause of action and justifying facts have been shown with specificity, good
cause as to these assertions had been demonstrated. (Id. at 840-841.)
Here,
Plaintiff does not oppose attending a medical examination. Instead, Plaintiff highlights
the points of contention the parties cannot agree on prior to the exam itself.
The points of contention include: (1) Disclosure of raw data from the testing
directly to Plaintiff’s attorneys as required by Randy's Trucking, Inc. v.
Sup. Ct. of Kern County (2023) 91 Cal.App.5th 818; (2) Permitting Plaintiff
to make an audio recording of the entire exam, including the testing, as
required by Code of Civ. Proc. § 2032.530; (3)
Requiring that Dr. Boone disclose the exact testing she intends to
perform at least 10 days before the exam; (4) Precluding questions about Mr.
Nolazco’s family origin or his extended family as they are irrelevant and
invade upon third party right-to-privacy; and (5) Requiring that any reference
by Dr. Boone to matters contained in Nolazco’s medical records shall be
accompanied by such medical records that Dr. Boone claims supports her findings
and conclusions. The court discusses each in turn below.
i.
Disclosure of Raw Data to Plaintiff’s Attorney &
Section 2032.530
First,
Plaintiff argues that Defendant is refusing to disclose the raw data of the
testing materials and audio recordings to his attorney. Pursuant to Code of
Civil Procedure section 2032.530, in mental examinations, “[t]he examiner and
examinee shall have the right to record a mental examination by audio
technology.” (Code Civ. Proc., § 2032.530, subd. (a).) Defendant’s reply brief
states that it is asking that the materials and recording be transmitted to a
licensed psychologist identified by Plaintiff, instead of transmitting said
materials and recordings to Plaintiff and/or Plaintiff’s attorney. Defendant
argues a protective order is required to prevent disclosure of raw testing
data, test questions, and audio recording of the testing portion of the IME on
the grounds that the prospect of these highly sensitive, copyright-protected
materials being disseminated among non-psychologists threatens the future
security and validity of the test instrument. Plaintiff’s opposition argues
that Defendant’s request violates the precedent set by Randy's Trucking,
Inc. v. Sup. Ct. of Kern County (“Randy’s Trucking”).
In Randy’s Trucking, the Fifth District Court of Appeal upheld the
trial court’s decision directing a neuropsychologist to transmit an examination
recording to the plaintiff’s counsel on multiple grounds, such as protecting
against abuses and disputes over what transpired during the examination,
ensuring the examiner does not overstep the bounds set by the court for the
mental examination, and enabling the attorney to have more than a second-hand
understanding of the information being scrutinized. (Randy's
Trucking supra, 91 Cal.App.5th at p. 838.) “In sum, the trial court did not abuse its
discretion in ordering transmission of raw data and audio recording to
plaintiffs' attorney subject to a protective order, as plaintiffs demonstrated
a need for the materials and the protective order would address the concerns
about test security and integrity.”
(Id., at p. 842.)
Defendant in Randy’s Trucking asserted
that in Roe v. Superior Court (2015) 243 Cal.App.4th 138, 147, the trial
court ordered the examiners to provide only the reports statutorily required by
section 2032.610, deciding that plaintiffs there were not entitled to the
written testing materials and the minor's answers without further court order. Thus, as noted by Randy’s Trucking, Roe
stands for the proposition that a trial court is not REQUIRED to order the
production of test materials or test data, but under Carpenter, the First
District recognized that trial courts retain the DISCRETION to order the
production of such materials. The Court
here thus has discretion to either order or deny imposition of the parameters
sought by Plaintiff here.
Here, this Court
tentatively will exercise its discretion to require Defendant or its IME doctor to provide Plaintiff’s
counsel with the test questions and raw data, but only AFTER the Plaintiff
attends the IME. The disclosure of those
materials will be subject to a protective order. Defendant has failed to convince the Court why
the protective order can properly apply if the raw data and test questions were
given directly to Plaintiff’s expert psychologist but not when given to counsel.
If the Defendant has any evidence that Plaintiff’s counsel or members of his
firm has leaked such data in any other case, now if the time to come forward
with such evidence.
ii.
List of Anticipated Tests
Plaintiff
asserts Dr. Boone should be required to disclose the exact testing she intends
to perform at least 10 days before the exam. In Defendant’s reply brief, she
argues she has already provided Plaintiff with the list of anticipated tests. The court seeks oral argument as to what is
still at issue. Further, the Court is
inclined to also make an order barring Plaintiff’s counsel, expert, or any
other person from coaching Plaintiff about how to answer the questions in any
of the standardized tests, and specifically to prohibit anyone from discussing
with plaintiff any of the test questions Dr. Boone intends to present to
Plaintiff. Both sides have ethical
duties to their clients but also to the integrity of standardized testing itself
as an aid in understanding Plaintiff’s condition. While experts on both sides may later offer opinions
as to the interpretation of the data, disclosure of the test questions to the plaintiff
in advance of the testing compromises the utility of using standardized and
vetted text materials. Standardized tests
such as the MMPI have been relied upon, scrutinized and evaluated by experts
for plaintiffs as well as for defendants, a body of interpretive data has been developed,
and experts on both sides will be permitted to evaluate and opine on the meaning
of a plaintiff’s answer, but only if those answers are uncorrupted and
untainted.
iii.
Scope of Questions
Plaintiff
has asserted the IME should preclude questions about Mr. Nolazco’s family
origin or his extended family as they are irrelevant and invade upon third
party right-to-privacy; and that it should be required that any reference by
Dr. Boone to matters contained in Nolazco’s medical records shall be
accompanied by such medical records that Dr. Boone claims supports her findings
and conclusions. The court disagrees that questions regarding Plaintiff’s
family origin or extended family are irrelevant, and can be better addressed by
motion in limne or cross-examination rather than prohibition of
questioning. Since the IME will be audio
recorded, the nature and context of any such question will be available for
both sides to evaluate and address at a later stage of the litigation.
As
to Plaintiff’s request that Dr. Boone issue a report that attaches Nolazco’s
medical records to any opinion that Dr. Boone claims supports her findings and
conclusions, the Court will not impose such a requirement, but it would be sensible
for Dr. Boone to make a reference in any report to such a medical record, which
will help shorten the time she might need to locate such a supportive record when
she is deposed and/or gives trial testimony and is asked for the documents on
which she relies to support her opinion.
But the Court will not impose such a requirement as a condition of
granting the motion to compel the IME.
IV.
CONCLUSION
For the foregoing reasons, this court
tentatively GRANTS Defendant motion subject to the parameters discussed in this
intended ruling. The court requires oral
argument as to issues identified above.
Defendant is ordered to provide
notice.