Judge: Steven A. Ellis, Case: 20STCV35691, Date: 2023-08-11 Tentative Ruling
Case Number: 20STCV35691 Hearing Date: April 11, 2024 Dept: 29
Motion for
Leave to Conduct Mental Examination of Plaintiff filed by Defendant Shaw
Industries Group, Inc.
Tentative
The motion is granted.
Background
On September 17, 2020, Plaintiff
Yanera Cooper (“Plaintiff”) filed a complaint against Richard Marc Zucker (“Zucker”),
Shaw Industries, Inc. (“Shaw”), and Does 1 through 50, asserting a cause of
action for negligence arising from an automobile accident occurring on October
3, 2020. Zucker and Shaw filed their
answer to the complaint on April 15, 2022.
On March 6, 2024, Shaw filed this motion for
leave to conduct a mental examination of Plaintiff. The motion was initially set for hearing on
June 10 and was advanced to April 11 on the moving party’s ex parte application.
No opposition has been filed.
“Any party may obtain discovery . . . 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.”
(Code Civ. Proc., § 2032.020, subd. (a).)
In a personal injury action, the defendant may
demand one physical examination of plaintiff as of right, without advance leave
of the court. (Code Civ. Proc., §
2032.220.)
If a defendant seeks a further physical examination
of plaintiff, or a mental examination, the defendant must first file a motion
and “obtain leave of court.” (Id., § 2032.310, subd. (a).) Such a motion
must “specify the time, place, manner, conditions, scope, and nature of the
examination, as well as the identity and the specialty, if any, of the person
or persons who will perform the examination.” (Id., subd. (b).) The
court may grant such a motion “only for good cause shown.” (Id., §
2032.320, subd. (a).) A showing of good cause generally requires “that the
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. Super. Ct. (1987)
43 Cal.3d 833, 840.)
“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, subd.
(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. Super. Ct.¿(2006)
141 Cal.App.4th 249, 260.)¿¿
The moving party¿must support the motion with a meet
and confer declaration. (Code Civ. Proc., § 2032.310, subd. (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.”¿ (Id., § 2016.040.)¿¿¿¿
The examination will be limited to whatever
condition is “in controversy” in the action.¿ (Id., § 2032.020, subd.
(a).) A mental examination is appropriate only if the plaintiff alleges
continuing emotional distress. (Doyle v. Super. Ct. ¿(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.) By alleging a causal link between the emotional
distress and the defendant's conduct, however, a plaintiff “implicitly claims
it was not caused by a preexisting mental condition, thereby raising the
question of alternative sources for the distress.” (Ibid.)
Discussion
The Court
begins with two threshold issues.
First, the Court finds that the meet and confer requirement has been
satisfied. (Mathis Decl., ¶ 8.)
Second, on March 8, Shaw filed and served a document entitled “Amended
Demand for Independent Neuropsychological Examination of Plaintiff Yanera
Cooper.” It is unclear to the Court what
this document is. A neuropsychological
examination is a mental examination, and the Civil Discovery Act does not
permit a party to make a unilateral “demand” for a mental examination; rather,
a party must seek and obtain leave from the Court for such an examination. (Code Civ. Proc.,
§ 2032.310, subd. (a).) To the extent
that this document is intended to update the relief sought by motion (and only
to that extent), the Court will consider it.
Turning now to the merits of the motion, Shaw seeks leave of court to
conduct a mental examination of Plaintiff.
Shaw has shown good cause for such an examination. At Plaintiff’s deposition, she attributed ongoing
mental health and emotional distress injuries to the accident. (Mathis Decl., ¶ 5 & Exh. C, at
59:7-60:12.) Subsequently, in interrogatory
responses, Plaintiff attributed “emotional disturbances” to the accident. (Id., ¶ 6 & Exh. D, Response to
Special Interrogatory No. 45.)
In the motion, as updated and amended by the so-called “Amended Demand”
and the Supplemental Declaration filed on March 29, Shaw seeks leave for the
examination to be conducted by George K. Henry, PhD/ABPP-CN, a clinical neuropsychologist,
on April 23, at 9 am, at his office. The
motion, as updated and amended, explains that the examination will consist of
two parts. In the first part, the
examiner will obtain information from Plaintiff regarding her history and her
complaints. In the second part, the
examiner will administer certain enumerated tests. The entire examination will take
approximately eight hours.
Certain aspects of Shaw’s motion require some additional discussion.
First, the motion states that the tests that the examiner will
administer “may include, but [are] not limited to, the following [tests] as
well as others.” That is not
permissible. The tests that will be administered
must be identified, by name, in the order.
The examiner may choose to omit tests that are listed in this order, but
he may not add to the list or administer any test not named in this order,
below.
Second, Plaintiff has the right to record the examination by audio
technology. (Code Civ. Proc., §
2032.250, subd. (a).)
Third, in granting the motion, the Court is not adopting or agreeing
with the statements in Shaw’s moving papers about various circumstances under
which Plaintiff might be responsible for costs or fees.
The motion is granted.
Conclusion
The Court GRANTS Shaw’s motion for leave to conduct a mental examination
of Plaintiff.
The Court ORDERS Plaintiff to appear and be examined by George K. Henry,
PhD/ABPP-CN, at 2450 Colorado Avenue, Suite 100E, Santa Monica, California
90404, telephone number 310-457-0777, on April 23, 2024, beginning at 9:00 am.
The examination is not to exceed eight hours in length (excluding
breaks).
In the first part of the examination, the examiner will obtain
information from Plaintiff regarding her history and her alleged injuries.
In the second part, the examiner will administer the following tests,
and no others: Wechsler Adult
Intelligence Scale – III or IV; Wechsler Abbreviated Scale of Intelligence-II;
Test of Nonverbal Intelligence-4; Mini-Mental Status Examination; Modified
Somatic Perception Questionnaire; Color Trails Test; Wide Range Achievement Test-5;
Wechsler Memory Scale-IV; Symptom Identity Scale; Sensory-Motor Assessment Battery;
Continuous Visual Memory Test; Pain Catastrophizing Scale; Trail Making Test; Minnesota
Multiphasic Personality Inventory-2-RF; Boton Naming Test; D KEFS Battery; Rey
Auditory Verbal Test; Cognitive Performance Battery; Woodcock Johnson 3; Beck Anxiety
Inventory; PTSD Checklist for DSM-5 (PCL-5); Memory Complaints Inventory; Rey
Complex Figure; Hooper Visual Organization Test; Symbol Digit Modalities Test; Pain
Disability Index; Illness Beliefs Questionnaire; Millon Multiaxial Clinical
Inventory III; Trauma Symptom Inventory-2; Delis-Kaplan Executive Function
System; Ruff Figural Fluency Test; Pain Patient Profile-3; Judgment of Line
Orientation; Performance Validity Battery; Brief Visuospatial Memory
Test-Revised; Wisconsin Card Sorting Test; Test of Premorbid Functioning;
Hopkins Verbal Learning Test R; California Verbal Learning Test 3; Pain
Catastrophizing Scale; Halstead Reitan Battery; Beck Depression Inventory 2; Rivermead
PCS Questionnaire.
The examiner may record the examination by audio technology.
Plaintiff may record the examination by audio technology.
Moving
Party is ordered to give notice forthwith and to file proof of notice with the
Court.