Judge Steven A. Ellis, Case Number: 21STCV37133, Date: 2023-09-27 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV37133, Date: 2023-09-27 Tentative Ruling

Case Number: 21STCV37133 Hearing Date: September 27, 2023 Dept: 29

TENTATIVE

Defendants’ motion to compel Plaintiff to attend an independent mental examination is GRANTED on the conditions set forth below, including that Plaintiff must be permitted to record the examination by audio technology and that Defendants must provide Plaintiff’s counsel with the raw test data and testing materials.

Background

On February 22, 2022, Plaintiff Charlotte Vieira (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, Erasmo Hernandez, Rosa Hernandez, EC & RC Hernandez Trust asserting causes of action for: (1) dangerous condition of public property; (2) negligence; and (3) premises liability. The complaint alleges that Plaintiff sustained injuries after falling on a cracked, uneven, and degraded sidewalk.

On March 30, 2023, Defendants Erasmo Hernandez, Rosa Hernandez, and EC & RC Hernandez Trust (“Defendants”) filed a motion for an order compelling Plaintiff to attend an independent mental examination (“IME”) with Kyle B. Boone, Ph.D, ABPP-ABCN, a psychologist and neuropsychologist.

Plaintiff filed an opposition on September 13. Plaintiff does not oppose the examination itself but seeks an order that will allow her to record the examination by audiotape, that will require Defendants’ examiner to produce the raw test data to her counsel, and that will identify the specific tests to be administered.

Defendants filed a reply on September 20. This was one day late (because of an intervening court holiday on September 22), but the Court will exercise its discretion to consider it.

Legal Standard

A defendant who seeks to conduct a mental examination of plaintiff must file a motion and “obtain leave of court.” (Code Civ. Proc., § 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.) A mental examination is generally appropriate only when a plaintiff alleges continuing emotional distress or mental injury and so places his or her mental or emotional condition “in controversy” in the action.¿ (Code Civ. Proc., § 2032.020, subd. (a); Vinson, supra, 43 Cal.3d at p. 840; Doyle v. Super. Ct. (1996) 50 Cal.App.4th¿1878, 1886-1887.)

“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.)¿¿

¿¿

A plaintiff submitting to a mental examination has the right to demand that the defendant deliver to the plaintiff a “copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examination.” (Code Civ. Proc., § 2032.610, subd. (a)(1).) The examinee also has “the right to record a mental examination by audio technology.” (Id., § 2032.530, subd. (a).)

Discussion

Plaintiff does not object to the examination itself. Nor does Plaintiff argue that Defendants have not shown good cause or have failed to comply with any of the other substantive or procedural requirements for a court order compelling the examination.

Instead, in her opposition, Plaintiff makes three arguments. The Court will address these arguments in a different order than the one in Plaintiff’s opposition, for ease of discussion.

First, Plaintiff argues that she must be allowed to record the examination by audiotape. (Opp. at 7-11.) Plaintiff is correct. Code of Civil Procedure section 2032.530 gives her that right. Any concern that Defendants or their expert may have with such recording must be addressed to the California Legislature.

Second, Plaintiff argues that the court order must identify the specific tests that will be administered to her. (Opp. at 12.) Again, she is correct. That is required by Code of Civil Procedure section 2032.320, subdivision (d). (See also Carpenter, supra, 141 Cal.App.4th at p. 260.)¿¿Defendants have provided Plaintiff and the Court with the information required regarding the specific tests to be administered in the declaration of the proposed examiner, Kyle B. Boone, Ph.D., and in the demand served on Plaintiff’s counsel (Boone Decl., ¶ 12; Davis Decl., Exh. B, at 3.)

Third, at the crux of the dispute, Plaintiff argues that the raw data and test materials from her examination must be provided directly to Plaintiff’s counsel. (Opp. at 5-7.) Defendants oppose this request, arguing that these materials must remain confidential and that requiring Dr. Boone to provide these materials directly to Plaintiff’s counsel would violate the code of professional conduct that applies to her and would render the test materials useless for future use. (Motion at 4-5, 7-11.) Defendants also argue that the phrase “results of all tests made” in Code of Civil Procedure 2032.610, subdivision (a)(1), does not include raw data and test materials. (Motion at 9-10, citing Roe v. Superior Court (2015) 243 Cal.App.4th 138, 149 [rejecting, in a writ proceeding, a party’s “undeveloped” argument that the statute required disclosure of testing material and raw answers].)

The Court of Appeal recently considered this very issue in Randy’s Trucking v. Superior Court (2023) 91 Cal.App.5th 818. In that case, the superior court ordered that the raw data be provided to plaintiff’s counsel, subject to a protective order that prohibited any use or disclosure of the materials for any purpose other than in connection with the litigation. (Id. at 828.) On writ review, the defendants made arguments similar to the ones that Defendants makes here, including (among others) : (1) that disclosure is not required by section 2032.610; (2) that disclosure would violate the ethical and professional obligations of the testing expert; and (3) that disclosure to attorneys, rather than other health care professionals, would lead to coaching of future clients that would undermine the value and effectiveness of the testing materials. (Id. at 834, 837-38.)

The Court of Appeal rejected those arguments, holding that the superior court did not abuse its discretion in compelling the disclosure pursuant to a protective order. (Id. at 842). As the Court of Appeal explained, a plaintiff has a

right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion. (Evid. Code, § 721, subd. (a).) Without raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion.

(Id. at 838.) The appellate court also rejected the argument that the disclosure should be made only to the plaintiff’s expert, explaining (among other things) that a party “should not be forced to retain an expert to gain access to these materials.” (Ibid.)

After carefully considering the evidence and arguments presented by both sides, the Court GRANTS Plaintiff’s request that the order for the examination include a provision requiring disclosure of the raw data and testing materials directly to Plaintiff’s counsel, subject to a protective order, for two separate and independent reasons.

First, given the overall purposes of the Civil Discovery Act, the Court interprets the phrase “results of all tests made” in section 2032.610 broadly, to include raw testing data. That interpretation promotes the well-established policy in favor of broad and mutual pre-trial disclosure that runs throughout the Civil Discovery Act and the case law.

Second, even if the disclosure is not required by section 2032.610, the decision whether to order disclosure of raw test data falls within the broad discretion of the superior court. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 837; Carpenter, supra, 141 Cal.App.4th at pp. 271-272.) Here, the Court has weighed the competing interests and finds that the appropriate balance is struck by requiring disclosure subject to a protective order, just as Superior Court Judge Barmann did in the Randy’s Trucking case. This will allow Plaintiff access to the material she needs to cross-examine the Defendants’ expert and prepare for trial, and it will minimize the risk of improper or undue distribution of the data to third parties.

Following the lead of Judge Barmann, the Court will order the following protective order in this matter:

Plaintiff’s counsel, defense counsel and all experts, consultants and employees of the respective firms shall maintain the security of all raw data, test materials and other medically private information obtained during the examination. However, such raw data, test materials and other medically private information may be disclosed to plaintiff’s counsel, defense counsel and all experts, consultants and employees of the respective firms for use in this case. Such materials and data may also be shown to the trier of fact at the time of trial, or such other time as may be necessary for the adjudication of the above-captioned matter. These materials may be used for no other purpose, may not be disseminated to any other party and the parties shall take all reasonable steps to maintain the confidentiality of the above-identified materials.

Counsel may seek to add to or modify these provisions (by a court order entered following a stipulation or motion), but the materials must be disclosed to Plaintiff’s counsel, and, pending further order of the Court, the protective order set forth above will apply.

The Court has considered the additional authorities cited by Defendants, including Detroit Edison Co. v. NLRB (1979) 440 U.S. 301 and Brutsch v. City of Los Angeles (1992) 3 Cal.App.4th 354, and concludes that they are not directly on point and are less persuasive as to the particular issues raised in this motion than the Court of Appeal’s analysis in the Randy’s Trucking case.

The Court has not considered the trial court rulings presented by Plaintiff and attached to her counsel’s declaration as these are not precedent under California law.

Conclusion

The Court GRANTS Defendants’ motion for an order compelling Plaintiff to submit to a mental examination.

Plaintiff is ORDERED to appear for and submit to a mental examination on a date and at a time to be arranged by counsel within 30 days of notice of this order. The examination will be conducted at 24564 Hawthorne Blvd., Suite 208, Torrance, CA 90505.

The examination will be performed by Dr. Kyle B. Boone, Ph.D, ABPP/ABCN. Dr. Boone shall conduct an independent neuropsychological medical examination for the purpose of determining the nature and scope of Plaintiff’s injuries. The neuropsychological examination will take no longer than 6 hours. The examination will not include any diagnostic test or procedure that is painful, protracted, or intrusive other than the subjective pain or distress ordinarily associated with the recall of psychologically and/or emotionally upsetting events and situations in life. The IME will consist of two parts: (1) a history taking and observation of Plaintiff for the purpose of gathering information in specific areas; and (2) the administration to Plaintiff a number of standard, validated psychological and neuropsychological tests, which are not duplicative of the first part of the IME.

The following tests will be administered: Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visual spatial Memory Test –Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; the Victoria Symptom Validity Test; Shipley-2; and the NAB Shape Learning subtest.

Plaintiff shall have the right to record the examination by audio technology.

Within 30 days of the examination, Defendants will provide to Plaintiff’s counsel a copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examination. This will include all raw data and testing materials.

Moving party is ordered to give notice.