Judge: William A. Crowfoot, Case: 19STCV32308, Date: 2022-10-17 Tentative Ruling

Case Number: 19STCV32308    Hearing Date: October 17, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On September 11, 2019, plaintiff Emily Ortiz (“Plaintiff’) filed this action against defendants Daniel Edwin Simmons and Dixie Diesel & Electric, Inc. (collectively, “Defendant”) arising from a pedestrian versus truck collision.  On May 29, 2022, the parties stipulated that Plaintiff would submit to a neuropsychological examination by Lev Gottlieb, Ph.D. (“Dr. Gottlieb”).  The stipulation provided that the production of the raw data from the exam, including copies of all tests and interpretive materials, would be produced directly to Plaintiff’s retained neuropsychological expert.  The parties agreed that Plaintiff could move the Court for an order compelling the production these materials to Plaintiff’s counsel and left the issue for the Court to resolve. 

On September 20, 2022, Plaintiff filed this motion for an order compelling the production of the “actual tests, test answers, interpretative materials used, reports of tests, raw data generated, scoring, and all test results” (referred herein as “Test Information”) from the neuropsychological examination performed by Dr. Gottlieb, directly to Plaintiff and her counsel, pursuant to a protective order. 

II.          LEGAL STANDARD

Plaintiff brings this motion pursuant to Code of Civil Procedure section 2032.610, Evidence Code section 721, and Carpenter v. Superior Ct. (2006) 141 Cal.App.4th 249 (Carpenter). 

CCP 2032.610 states that a party submitting to a mental examination may demand “[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 examiner.”  (Code Civ. Proc., § 2032.610, subd. (a)(1).) 

Evidence Code section 721 provides for the cross-examination of expert witnesses “to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject tto which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.”  (Evid. Code, § 721, subd. (a).) 

In Carpenter, the court of appeal held that a trial court’s order that limited the scope of a mental examination to “standardized written psychological tests” that “evaluated ‘emotional and cognitive functioning’” did not specify the diagnostic tests and procedures of a mental examination as required by CCP 2032.320.  (Carpenter, supra, 141 Cal.App.4th at pp. 252-253.)  The court of appeal also held that copyright law did not preclude the production of the written test materials.  (Ibid.) 

III.        DISCUSSION

Plaintiff argues she is entitled to the Test Information under a broad interpretation of CCP 2032.610.  As stated above, section 2032.610 entitles Plaintiff to “[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 examiner.”  

Independent research by the Court leads it to California Code of Regulations, title 16, section 1396.3, which provides, “A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.”  (Cal. Code Regs., tit. 16, § 1396.3.)  If possible, the Court must interpret Code of Civil Procedure section 2032.610 and California Code of Regulations, title 16, section 1396.3 to give effect to both.  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.¿(1989) 49 Cal.3d 408, 419-420.)  Therefore, the Court concludes that the report and conclusions required by CCP 2032.610 does not include the Test Information including the actual tests. 

Plaintiff also argues that there is no case law barring the Court from ordering the production of the Test Information pursuant to a protective order and that not having the materials will hamper her ability to cross-examine Dr. Gottlieb.  However, Plaintiff has not provided any legal authority requiring the Court to order Defendants to produce the Test Information directly to Plaintiff and Plaintiff’s counsel.  In their opposition brief, Defendants cite to an official statement from the National Academy of Neuropsychology and the Journal of Clinical and Experimental Neuropsychology, stating that “individuals who gain access to test content can and do manipulate tests and coach others to manipulate results, and they are also more likely to circumvent methods for detecting test manipulation.”  (Opp., 2:21-28.)  Furthermore, it is inaccurate to claim that Plaintiff will be disadvantaged.  Plaintiff’s qualified expert will be able to review the Test Information and coordinate with counsel for any anticipated cross-examination.  The Court considers review of the Test Information by Plaintiff’s qualified neuropsychological expert sufficient to protect Plaintiff’s interests in cross-examining Dr. Gottlieb. 

IV.         CONCLUSION

Accordingly, Plaintiff’s motion is DENIED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.