Judge: Serena R. Murillo, Case: 19STCV20756, Date: 2023-02-08 Tentative Ruling

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Case Number: 19STCV20756    Hearing Date: February 8, 2023    Dept: 29

TENTATIVE

Defendants Jaime Martir Aguirre and R & Y Castellanos Trucking, Inc.’s motion to compel a neuropsychological examination is GRANTED subject to the limitations set forth in this order. 

Legal Standard 

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.  (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220(a).)

If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” (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 motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.310(b).)¿

Discussion

Defendants seek to compel Plaintiff’s neuropsychological examination, arguing that Plaintiff put her mental state at issue by alleging that as a result of the automobile accident at tissue, she suffers from a traumatic brain injury, loss of memory, headaches, and the inability to concentrate, among other issues.

Plaintiff agrees to allow the Independent Medical Examination (IME) to proceed but seeks to limit the scope of the IME on three issues.

First, Plaintiff requests that Defendants’ retained neuropsychologist Dr. Boone severely limits questions about the underlying incident so there is no attempt to conduct a second deposition without the presence of Plaintiff’s counsel, or in the alternative, Plaintiff’s counsel requests to be present for this line of questioning only. Defendants include in their notice, points and authorities and proposed order the need for a “subjective report of the events leading to the psychological/neuropsychological damage” from the plaintiff. (Proposed Order at 2:17-19.) Plaintiff argues that the time and place for such a direct inquiry was in Plaintiff’s deposition that was completed on March 23, 2021. There, while taking advantage of the proper discovery tool, defense counsel had more than adequate opportunity to inquire about Plaintiff’s “subjective report of the events leading to Plaintiff’s injuries” and did so.

Second, Plaintiff requests an order to preclude Dr. Boone from questioning Plaintiff during the IME regarding her family's historical mental health on the grounds of relevance and the privacy rights of non-parties.

Third, Defendants’ proposed order indicates that the “IME will take approximately 6 hours to conduct.” Plaintiff contends that if Dr. Boone is precluded from asking questions that are better suited for an accident reconstructionist and/or is precluded from questioning the mental health of non-parties and thereby has a narrow and focused approach to a neuropsychological examination for which she is qualified, 6 hours of examination is more than adequate.

The Court grants Plaintiff’s request to limit Dr. Boone’s examination about the underlying incident to matters not addressed in the deposition of Plaintiff already taken by Defendant.  To effectuate this ruling and preclude what might otherwise be a second deposition of Plaintiff, the Court orders that Dr. Boone may take a history of Plaintiff and may make inquiries about her psychological conditions, symptoms, perceptions, etc., but shall not ask her questions about the facts and circumstances of the accident to the extent those matters were already asked by defense counsel or addressed by Plaintiff in his deposition.  (Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 745-746).  

Second, Defendant is not entitled to explore alternative theories of causation including Plaintiff’s family’s psychological and psychiatric history. The fact that Plaintiff placed her mental condition at issue does not invite “fishing expeditions” based on speculation that something of interest might surface. (Vinson v. Superior Court (1987) 43 Cal.3d at 840.)¿¿¿ 

Third, the time limit appears to be a non-issue, as the proposed order indicates the IME will take approximately six hours.

Conclusion and Order

Defendants’ motion is therefore GRANTED subject to the limitations set forth in this order. 

Plaintiff is ordered to appear for mental examination by neuropsychologist Kyle Boone, Ph.D., ABPP-C as follows: 

Date: March 15, 2023

Time: 9:00 a.m. 

Location: 24564 Hawthorne Blvd., Suite 208, Torrance, CA 90505

                         Nature, Conditions, and Scope of Examination: The neuropsychological IME will take approximately 6 hours to conduct. The IME will consist of two parts. The first will part of the IME will involve a history taking and observation of Plaintiff for the purpose of gathering information in specific areas. These specific areas shall include current symptoms for which care might be sought. Dr. Boone may take a history from Plaintiff and may make inquiries about her psychological conditions, symptoms, perceptions, etc., but shall not ask her questions about the facts and circumstances of the accident to the extent those matters were already asked by defense counsel or addressed by Plaintiff in his deposition. A further history shall be obtained concerning the development of psychological, cognitive, and physical symptoms, what treatments have been received, and the effect of those treatments on symptoms.

The second part of the IME will consist of the administration to Plaintiff a number of standard, validated psychological and neuropsychological tests. The tests are not duplicative of the first part of the IME and are necessary and accepted by the psychological and neuropsychological community as useful and necessary in order to allow a psychologist to be able to provide an informed and objective opinion as to the cause, nature, and degree of emotional distress and cognitive dysfunction being claimed by plaintiff.

In addition to the history of the incident and psychological damages at issue, the IME will gather important information about past psychological/psychiatric and medical illnesses and difficulties, and educational and occupational history. However, Dr. Boone shall not ask Plaintiff questions “concerning plaintiff’s family origin” including “psychological, psychiatric, and medical difficulties within that family; their educational background; their work history; and social development history, including information about marriages and children.”

No videotaping or third-party observation (by any person, including but not limited to attorneys and court reporters) will be allowed in connection with the examination. Plaintiff may audio-record the interview, but only Dr. Boone will audio-record the testing portion of the examination and she will subsequently convey the audio-recording directly to Plaintiff’s retained licensed psychologist expert only, in order to ensure compliance with position papers issued by neuropsychological organizations which prohibit the release of certain protected psychological test information to non-psychologists. Likewise, and for the same test security and protection reasons, copies of the psychological test data sheets used to document Plaintiff’s test performance can only be forwarded to plaintiff’s retained, licensed psychologist expert.

The above-requested examination does not include any diagnostic test or procedure that is painful, protracted or intrusive. It is not contemplated that the examination will include any drawing of blood and/or body fluid extraction and lab workup. Every effort will be made to commence the examination at the scheduled time. However, it is the sole discretion of the examining doctor to determine when the examination of Plaintiff shall begin, and when said examination shall be considered concluded. Defendants will provide counsel for the examinee with a report of the examination as soon as the report has been made available to counsel for requesting Defendants.

Defendants are ordered to give notice.