GEORGE E SALEM VS SHANNON SHIH ET AL

Tentative Rulings

Case Number: BC656422    Hearing Date: January 31, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, George E. Salem filed this action against Defendants, Shannon Shih and Yichen Sharon Lin Shih for damages arising out of an automobile accident.

2. Motion to Compel IME

On calendar today is Defendant’s motion to compel Plaintiffs’ attendance at an IME. Defendant originally filed the motion on 8/28/19 and set it for hearing on 9/25/19. The hearing on the motion has been continued multiple times, and the parties also participated in an informal discovery conference in connection with the motion. The parties have not, however, been able to resolve certain issues relating to the motion.

The following issues remain between the parties in connection with this motion:

· Are Defendants entitled to a protective order:

o That only Plaintiff and the Examiner be present for the psychometric testing;

o That Plaintiff by prohibited from recording the psychometric portion of the testing;

o That the Examiner be required to audio record the entirety of the testing and provide the recording to the Court and Plaintiff’s neuropsychological experts only;

o That the disclosure of the audio recording be limited to the Examiner, the Court, and Plaintiff’s neuropsychological expert.

· Have Defendants adequately identified the tests to be performed?

o Can Defendants’ expert administer tests that were already administered by Plaintiff’s expert?

o If Plaintiff is willing to provide the raw data from prior tests to Defendants’ expert, does this preclude re-issuing those same tests?

· Should there be a time limit on the examination?

o Should Defendants’ expert be permitted to conduct additional oral history of Plaintiff?

1. Initial Note

While Plaintiff does oppose the motion in its entirety, Plaintiff does not make a meaningful argument that his mental health is not at issue in this case, such that an examination would be precluded altogether. The Court finds an examination is necessary and appropriate, and will limit its analysis to the more difficult issues posed by way of the parties’ motion and opposition papers below.

1. Persons Present at Examination

Defendants seek an order permitting only Plaintiff and the Examiner to be present for the hearing. Plaintiff does not seek a contrary order in the original or supplemental opposition. The Court is therefore inclined to grant Defendants’ requested relief in this regard.

1. Recording of Examination

The next issue is whether Plaintiff and/or Defendants’ expert can audiorecord the examination. Plaintiff argues Plaintiff has the absolute right to record the examination. Defendants contend only their expert should be permitted to audiorecord the portion of the examination concerning raw testing data.

§2032.530(a) expressly permits the examinee and/or the examiner to audiorecord the examination in its entirety. The Court cannot force the examiner to audiorecord the examination and provide a copy to Plaintiff, but also cannot prohibit Plaintiff from recording the examination. The request that only the examiner be permitted to record the testing portion of the examination is denied, as it is directly contrary to the statute governing the issue.

1. Protective Order re: Raw Data

The crux of this motion is whether the audio recording should be subject to a protective order. Per §2032.610, a party that submitted to a mental examination has the option to demand that the party that requested the examination produce “[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.” (§ 2032.610(a).) It is unclear whether this provision contemplates production of the raw data from psychological testing, or the examiner’s conclusions from that data. 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. The Carpenter Court ruled that a trial court should consider the ethical issues relating to the production of the raw data in determining whether to order its production. Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 273.

Defendants provide extensive analysis and evidence concerning their chosen expert’s inability to permit the raw data from the testing to be disseminated to Plaintiff’s attorney and/or the general public. Plaintiff provides no contrary evidence in opposition to the motion. The Court therefore concludes that §2032.610 does not require Defendants’ expert to produce the raw data from the psychological testing, but rather his reports and conclusions from that data. Similarly, to the extent Plaintiff records the testing portion of the examination, he can only do so pursuant to a proper protective order.

Accordingly, the Court orders Defendants’ expert to produce the raw data directly to any licensed psychologist Plaintiff retains as an expert in this action, but not to Plaintiff or Plaintiff’s counsel. The Court similarly precludes Plaintiff from providing a copy of the audiorecording of the testing portion of the examination to his attorney or any non-party to the litigation. The audiorecording of this examination shall be disclosed only to the Court and/or Plaintiff’s retained experts in the field. The Court understands Plaintiff’s attorney’s arguments concerning his ability to prepare the case for trial without reviewing the data, but finds Plaintiff’s attorney must rely on his own expert’s analysis of the data and/or Defendants’ expert’s report concerning the data in preparing the case for trial; the burden of requiring production of the raw testing data outweighs Plaintiff’s attorney’s need to review the data.

1. Identification of Tests to be Performed

Defendants, in their original reply papers, listed fifteen potential tests to be performed. Plaintiff seeks an order requiring Defendants to specify which tests will be performed, and also seeks an order precluding Defendants’ expert from re-conducting any test Plaintiff’s expert has previously conducted. Plaintiff fails, however, to identify any of the fifteen tests listed by Defendants that has been previously performed. If any of the tests have been previously performed, the Court asks Counsel to meet and confer concerning whether conducting the test again is appropriate. Otherwise, the Court finds Defendants adequately identified the tests to be performed, and Defendants’ expert is limited to the tests enumerated in the reply papers when conducting the examination.

1. Oral History

The parties appear to agree that any extensive oral history concerning the accident itself will not be conducted by Defendants’ expert in connection with the examination. Defendants’ expert is not permitted to ask redundant questions that have been covered by way of the deposition, but is permitted to question Plaintiff about his relevant mental health history. The Court is not inclined to place a time limitation on the examination at this time, and trusts Defendants’ expert will be professional and limit the examination to the duration necessary to prepare the case for trial.

1. Sanctions

The Court denies all requests for sanctions in connection with the motion and opposition. The parties’ papers present difficult and novel issues that are largely without directly on point appellate authority. The Court finds the parties took their positions in good faith, and even participated in an informal discovery conference in connection with the issues, such that sanctions are not appropriate.

1. Conclusion

The motion to compel an IME is granted.

A protective order is issued concerning the audiorecording of the testing portion of the examination, as well as the raw data ultimately generated from the examination; the recording and data are to be provided to the examiner, the Court and Plaintiff’s relevant expert(s) only.

The expert is not permitted to interview Plaintiff concerning the event itself and is not permitted to conduct questioning that it duplicative of Plaintiff’s deposition, but is permitted to inquire about Plaintiff’s mental health history.

The Court declines to place a time limitation on the examination, but asks the examiner to be professional and only use the time necessary to prepare the case for trial.

The examiner is limited to the fifteen tests identified in Defendants’ papers. Counsel must meet and confer if any of the fifteen tests have been previously administered and agree concerning whether or not those tests can be re-administered at this time.

No sanctions are imposed.

Defendants are ordered to give notice.

C61906

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.