Judge: William A. Crowfoot, Case: 22STCV00365, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCV00365    Hearing Date: January 12, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On January 5, 2020, plaintiff Rodrigo Macchi (“Plaintiff”) filed this action against defendant Jin Sheng Yue (“Defendant”), asserting causes of action for (1) negligence and (2) motor vehicle negligence.

The Complaint alleges the following. On April 26, 2021, Plaintiff was crossing a roadway in Monterey Park, California, when Defendant (while driving a vehicle) turned a street corner suddenly and rapidly. (Compl., ¶¶ 7-9.) Realizing that Defendant was neither slowing nor stopping, and with no time to escape, leapt upward to avoid being forced beneath and run over by Defendant’s vehicle. (Compl., ¶ 11.) The windshield, windshield pillar, and hood of Defendant’s vehicle struck Plaintiff’s head, neck, and back, causing Plaintiff to be thrown in the air until he landed with great force on the parking lot, where he was once again struck on his head, hip, and back. (Compl., ¶ 12.) Plaintiff incurred serious injuries due to being struck by Defendant’s vehicle. (Compl., ¶ 18.)

On October 27, 2022, Defendant filed the instant motion to compel Plaintiff’s attendance at an independent mental examination (“IME”).

On December 28, 2022, Plaintiff filed his opposition to the motion.

On January 4, 2023, Defendant filed her reply.

Jury trial is set for July 5, 2023.

II.        LEGAL STANDARD

Where any party seeks to obtain discovery by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).)

III.      DISCUSSION

A.   Meet and Confer

A motion to compel mental examination “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).)

Defendant has met this requirement. Her counsel sent meet and confer emails to defense counsel. (Motion, declaration of Lyle A. River (“River Decl.”), ¶¶ 13-15.)

B.   Separate Statement

A motion for “medical examination over objection” must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a).)

Plaintiff has satisfied that requirement by filing a separate statement, “provid[ing] all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).)

C.   Motion Requirements

“A motion [to compel mental examination] … shall 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.” (Code Civ. Proc., § 2032.310, subd. (b).)

Here, Defendant has attached a declaration from her expert, Dr. Kyle B. Boone (“Dr. Boone”). (Motion, declaration of Kyle B. Boone (“Boone Decl.”).) Dr. Boone testifies that she is a licensed psychologist since 1985 and a neuropsychologist since 1995. (Boone Decl., ¶ 1.) She will be available to conduct Plaintiff’s mental examination on January 23, 2023, at 9:30 a.m., at her clinic, located at 24564 Hawthorne Boulevard, Suite 208, Torrance, CA 90505. (Boone Decl., ¶ 12.) The IME will take approximately 6 hours to conduct, and not involve any invasive, dangerous, painful physical procedures. (Boone Decl., ¶¶ 14-15.) She provides a list of exams or tests (which are widely accepted by the neuropsychological community for determining the conditions and diagnoses, if any, and the severity of said conditions and diagnoses) from which she will conduct on Plaintiff. (Boone Decl., ¶ 13.) She explains that the IME will consist of two parts: (a) history taking and observation of Plaintiff for the purpose of gathering information, and (b) standard, validated psychological and neuropsychological tests. (Boone Decl., ¶¶ 17-19.)

The Court finds that Dr. Boone’s declaration complies with the requirements of Code of Civil Procedure section 2032.310, subdivision (b).)

D.  The Requested IME

Determining whether the mental condition of the party is in controversy is first step in the analysis of a motion to compel an IME. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840 (“Vinson”).) The California Supreme Court in Vinson held that “a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Id. at p. 839.) The Supreme Court found that the Vinson plaintiff placed her mental condition in controversy by “accus[ing] [the defendants] of various mental and emotional ailments” and “asserting a causal link between her mental distress and defendants’ conduct.” (Id. at pp. 839-840.)

If a party has placed their mental condition in controversy, the next step is determining whether good cause has been shown for the IME. (Vinson, supra, 43 Cal.3d at p. 840 [A “court may grant the motion [to compel an IME] only for good cause shown”].) In Vinson, the Supreme Court found there was good cause because the plaintiff alleged that she “continue[d] to suffer diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress.” (Vinson, supra, 43 Cal.3d at p. 837.) Moreover, “the truth of [those] claims [were] relevant to plaintiff’s cause of action and justifying facts [had] been shown with specificity ….” (Ibid.) Therefore, good cause will be shown where the IME is relevant to the party’s cause of action and facts justifying the IME are shown with specificity.

Here, the parties do not dispute that the Plaintiff has placed her mental condition in controversy. Indeed, the Complaint alleges that Plaintiff suffered mild traumatic brain injury and cerebral concussion after being struck by Defendant’s vehicle. (Compl., ¶ 18.)

However, the parties dispute whether there is good cause to grant the motion.

Defendant argues that there is good cause because Plaintiff has put at issue his mental and residual injuries by making a claim for them, Dr. Boone’s mental examination is directly relevant to said injuries, and there are no alternative means to adequately evaluate Plaintiff’s mental injuries other than a mental examination.

In opposition, Plaintiff argues there is no good cause because to compel the IME for the following (among other) reasons. First, even though Plaintiff agreed to attend the IME, it was on the condition that Dr. Boone allow the examination and the interview to be recorded and provided to Plaintiff’s counsel with all materials related to her neuropsychological evaluations of the Plaintiff. However, Dr. Boone would not agree to produce those materials to Plaintiff’s counsel. Second, Plaintiff argues that Dr. Boone’s declaration is logically and legally untenable because on one hand, she claims that if the tests are placed in the hands of personal injury attorneys, future clients could be coached as to how to take and pass the tests. On the other hand, Dr. Boone simultaneously claims that attorneys do not have the professional training and experience to evaluate by viewing the data sheets. Plaintiff argues that these two statements are contradictory. Third, Plaintiff argues that the Standards for Educational Psychological Testing (1999) (“Standards”) that Dr. Boone relies on does not (as she claims) mandate that psychologists refrain from compromising the security of mental test instruments or that the promotion of widespread knowledge of specific test content by the lay public will compromise the future validity of the tests. Instead, the Standards specifically limits a psychologists’ efforts to maintain test security to those consistent with law. Fourth, Plaintiff states that is also noteworthy that the Standards applies only to test materials, not test data. Fifth, Plaintiff argues that Dr. Boone does not contend that her proposal seeks to protect Plaintiff, but instead seeks to protect against an alleged general harm that would result from widespread knowledge of specific test content by the lay public. Finally, Plaintiff argues that Dr. Boone’s proposal jeopardizes Plaintiff’s interests by forcing him to hire an expensive neuropsychologist, which might not be in his best interest.

In reply, Defendant contends (among other things) the following. The only remaining issue is whether the IME should be shared directly with Plaintiff and his counsel or whether they should be shared with Plaintiff’s neuropsychologist. Plaintiff suggests that the Standards allow Dr. Boone to produce the test data directly to Plaintiff and counsel. However, doing so would be an end-run around the Standards because those items will have in them the test materials as well (i.e., test questions, Plaintiff’s answers, Dr. Boone’s responses, or adaptations to Plaintiff’s answers). Further, In Detroit Edison Co. v. N.L.R.B (1979) 440 U.S. 301, the United States Supreme Court (“SCOTUS”) sided with one company’s position that the battery of tests and answer sheets should be given to a union’s psychologist rather than directly to the union, which parallels the defense’s position in this matter. In so holding, SCOTUS thought it significant that the union was not a party to the enforcement proceeding in the Court of Appeals. Since Plaintiff’s counsel is not a party, it is doubtful that even if the Court issues a protective order, that Plaintiff’s counsel would be subject to a contempt proceeding (unless (and Defendant requests) that counsel also be named on the protective order).

The Court finds there is good cause to compel the IME for the following reasons. First, it is relevant to Plaintiff’s cause of action. Second, that Defendant has presented facts justifying the examination by showing that in his responses to Defendant’s form interrogatories, Plaintiff stated that he suffered (or continues to suffer) traumatic brain injury, cerebral concussion, headache, and memory impairment (among other conditions) as a result of the Defendant’s alleged negligence. (Motion, River Decl., ¶ 2; Exhibit A.)

This leaves the issue of whether Dr. Boone would be required to submit all materials to Plaintiff and counsel.  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, which requires producing upon 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,” 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.)  In doing so, the Court concludes that it will only order Dr. Boone to produce the test materials and audiorecording directly to a licensed psychologist retained by Plaintiff.  There is no law that requires Dr. Boone to “agree in writing” to record the IME and turn over the copy of the reports. In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, the court determined that a trial court has discretion to require an examiner to produce the raw data from psychological testing, but not the obligation to do so. Here, by limiting the access to the test materials and audio recording, the Court is exercising its discretion to regulate the dissemination of the raw data and testing materials from psychological testing as recorded on audiotape to specific persons.

Accordingly, the Court finds it proper to grant the motion and order Plaintiff to attend the IME. 

IV.      CONCLUSION

          The Motion to Compel Plaintiff’s Attendance for Independent Mental Examination is GRANTED.

          The Court orders plaintiff Rodrigo Macchi to appear at the independent mental examination on January 23, 2023, at 9:30 a.m., at Dr. Kyle B. Boone’s clinic, located at 24564 Hawthorne Boulevard, Suite 208, Torrance, CA 90505.

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’s 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.