On 03/06/2017 MAURICE TUTU SWEENEY filed a Personal Injury - Motor Vehicle lawsuit against YEHUDA LEVY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YOLANDA OROZCO, OWEN LEE KWONG and AMY D. HOGUE. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
OWEN LEE KWONG
AMY D. HOGUE
SWEENEY MAURICE TUTU
MOC PRODUCTS COMPANY INC.
DOES 1 TO 10
MOC PRODUCTS COMPANY INC.
KORNARENS ANTHONY D. ESQ.
KORNARENS ANTHONY DAVID
KLEIMAN MARK ALLEN
PETERSON JOHN A.
HOLLINS ANDREW S. ESQ.
HOLLINS ANDREW STEWART
CHANG LOUIS YOUNG
GOLDSTEIN ROY DAVID
PORNBIDA STEVE W
GALLAGHER MICHAEL EDGAR
HEATHCOTE TAMARA MAE
REIMERS ETHAN A.
BRYAN BARRY DANIEL
PETERSON JOHN A.
HOLLINS ANDREW S. ESQ.
GOLDSTEIN ROY DAVID
PORNBIDA STEVE W
KORNARENS ANTHONY DAVID
GAINES JEFFREY KYLE
Court documents are not available for this case.
Docketat 10:00 AM in Department 39; Hearing on Motion - Other (to Compel Plaintiff to Submit to Medical Examination by Defendant Yehuda Levy) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 39; Hearing on Motion for Leave (to Obtain Discovery by Neuropsychological Examination by Defendant Yehuda Levy) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 39; Hearing on Motion to Compel (Motion to Compel the Deposition of Edward C. Fatzinger, Jr.) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 39; Hearing on Motion to Compel (Motion to Compel the Deposition of Gavin Huntley-Fenner) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 39; Hearing on Motion to Compel (Motion to Compel the Deposition of Daniel Simacek) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 39; Hearing on Motion to Compel (Motion to Compel the Deposition of Stephen Garets) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 09:00 AM in Department 39; Order to Show Cause Re: Dismissal (Settlement) - HeldRead MoreRead Less
DocketOrder - Dismissal; Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal; Filed by MOC Products Company, Inc. (Cross-Complainant)Read MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by ClerkRead MoreRead Less
DocketNOTICE OF ASSOCIATION OF COUNSELRead MoreRead Less
DocketAssociation of Attorney; Filed by Maurice Tutu Sweeney (Plaintiff)Read MoreRead Less
DocketNOTICE OF ASSOCIATION OF COUNSELRead MoreRead Less
DocketAnswer; Filed by Yehuda Levy (Defendant)Read MoreRead Less
DocketANSWER TO COMPLAINTRead MoreRead Less
DocketDemand for Jury Trial; Filed by Yehuda Levy (Defendant)Read MoreRead Less
DocketDEMAND FOR JURY TRIALRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Maurice Tutu Sweeney (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES FOR NEGLIGENCERead MoreRead Less
Case Number: BC653493 Hearing Date: September 30, 2020 Dept: 39
The court CONTINUES the hearings on both motions to November 6, 2020.
The court ORDERS the parties to meet and confer regarding the specific tests Dr. Bilder is reasonably likely to perform during the mental examination and the role Dr. Seider or another qualified neuropsychologist is to have in the examination. The court additionally ORDERS the parties to meet and confer regarding the role an audiologist will play in Plaintiff’s medical examination and whether he or she will merely administer the tests and collect data at Dr. Djalilian’s direction or whether he or she will engage in any analysis of the results or otherwise diagnose Plaintiff’s physical condition and act as an independent examiner.
The parties are to submit a joint statement by October 30, 2020, regarding their meet and confer efforts and any disputes that remain. All meet and confer sessions must be in person, by telephone, or by video conference.
Defendant Levy to give notice.
As alleged in the First Amended Complaint (“FAC”), this personal injury action arises in connection with a motor vehicle accident that occurred in or around February 22, 2017. Plaintiff Maurice Sweeney (“Sweeney” or “Plaintiff”) alleges that an automobile driven by defendant Levy (“Levy”) collided with his motorcycle, causing significant personal injury to Sweeny and the destruction of his motorcycle and other property. Defendant MOC Products Company, Inc. (“MOC”) allegedly manufactured and sold windshield cleaning chemicals that purportedly reduced or otherwise interfered with Levy’s visibility in operating his vehicle.
In the FAC, Plaintiff alleges four causes of action for: (1) negligence against Levy; (2) product liability – failure to warn against MOC; (3) strict product liability against MOC; and (4) negligence against MOC. Defendant MOC has filed a cross-complaint against Roe Cross-Defendants for comparative indemnity, contribution, and declaratory relief.
Defendant Levy now moves to compel a neuropsychological examination of Plaintiff and separately moves for an order compelling Plaintiff to submit to a medical examination. Plaintiff opposes both motions, in part.
Defendant’s Motion for Leave to Obtain Discovery by Neuropsychological Examination
Defendant requests the court order Plaintiff to appear for a neuropsychological examination that is to be conducted by Robert Bilder, Ph.D., a clinical neuropsychologist licensed to practice in the State of California. Not. Exam Mot. 2. Plaintiff is willing to appear for an examination but objects to certain terms and conditions of the requested examination.
This motion came to hearing on July 22, 2020, at which time the court continued the hearing and allowed the parties to submit additional briefing. This motion now comes again to hearing.
I. Meet and Confer
A motion for an examination under Code of Civil Procedure section 2032.310(a) must be accompanied by a meet and confer declaration under section 2016.040. Code Civ. Proc. § 2032.310(b). All subsequent statutory references will be to the Code of Civil Procedure, unless otherwise specified.
A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. Code Civ. Proc. § 2016.040. “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Clement, 177 Cal. App. 4th 1277, 1294 (2009). “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” Stewart, 87 Cal. App. 4th 1006, 1016 (2001) (internal ellipses omitted). Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. Obregon v. Superior Court, 67 Cal. App. 4th 424, 433-34 (1998) (citing Townsend v. Court, 61 Cal. App. 4th 1431, 1437 (1998)).
Defendant Levy submits a declaration by Ethan Reimers in support of the subject motion (“Reimers Mental Exam Decl.”). Reimers attests to meeting and conferring with Plaintiff’s counsel in an effort to obtain a stipulation regarding a neuropsychological examination. Reimers Mental Exam Decl. ¶¶ 10-14. According to Reimers, the parties were not able to come to an agreement as to the conditions of and restrictions to be applied to the neuropsychological examination. Id. at ¶ 14, Ex. H. This evidence is sufficient to satisfy the meet and confer requirement.
II. Legal Standard
“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(a). “A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” Id., § 2032.020(c)(1).
To obtain discovery by mental examination, a party must obtain leave of court. Code Civ. Proc. § 2032.310(a). The court shall grant a motion for a mental examination only for good cause shown. Code Civ. Proc. § 2032.320(a). To establish “good cause,” the moving party must produce specific facts justifying the discovery and that the subject matter is relevant to the action. Vinson v. Superior Court, 43 Cal. 3d 833, 840 (1987). One party’s unsubstantiated allegation cannot put the mental state of another in controversy. Id. at 839. “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.” Id. at 840. If a party stipulates that no claim is being made for mental or emotional distress over and above that usually associated with the physical injuries claimed and that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, a mental examination may only be ordered on a showing of exceptional circumstances. Code Civ. Proc. § 2032.320(b)-(c).
The motion for a mental examination 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. § 2032.310(b). The party who seeks to compel a mental examination bears the burden to specify the diagnostic tests and procedures to be conducted. Carpenter v. Superior Court, 141 Cal. App. 4th 249, 267 (2006). As the Carpenter court explained: “Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant. The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers. The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary.” Id.
A. Defendant Levy’s Entitlement to a Neuropsychological Examination of Plaintiff
Defendant Levy contends a neuropsychological examination of Plaintiff is necessary because Plaintiff has placed his ongoing neuropsychological condition in controversy. Not. Mental Exam Mot. 5, Mental Exam Mot. Br. 2. The FAC alleges Plaintiff has suffered personal injuries including “brain bleeding (arterial bleeding, both hemispheres), bilateral epidural hematomas, traumatic brain injury, impaired mentation and memory, a concussion, … and other significant personal injuries.” FAC ¶ 9. In his written discovery responses, Plaintiff stated he suffers from impaired speech, impaired mentation, short term memory loss, and an inability to concentrate, among other issues. Reimers Decl. Ex. B, at 10.
Plaintiff does not object to a mental examination but does object to the conditions under which the examination would take place. Opp. at 2. The court, therefore, finds good cause for a neuropsychological examination of Plaintiff’s condition. See Code Civ. Proc. § 2032.020(a). The court now turns to the parties’ arguments regarding the scope and terms of the proposed examination.
B. Scope of the Examination and the Diagnostic Tests and Procedures to be Taken
The requested examination would be conducted by Robert Bilder, Ph.D. (“Dr. Bilder”), a clinical neuropsychologist licensed to practice in the State of California. Not. Mental Exam Mot. 2. The notice of Levy’s motion states: “Dr. Bilder is to personally perform an initial interview of Plaintiff, upon which he would determine the psychometric testing to be done,” with the specific tests to be selected from a list that extends three full pages and contains the names of approximately 100 tests. Not. Mental Exam Mot. 2-5.
The proposed psychometric testing would be performed by a qualified and licensed neurophysicist at Dr. Bilder’s direction, most likely Palia Seider, Ph.D. (“Dr. Seider”), who is a qualified and licensed neurophysicist. Id. at 5. Plaintiff’s counsel would be allowed to be present during the initial examination but would not be allowed to be present during psychometric testing. Id. Plaintiff would be permitted to take two fifteen-minute breaks, as well as a one-hour break at lunchtime. Id. Dr. Bilder would provide a report that would name all tests and relevant scores, and the raw data from the tests would be restricted to review only by Plaintiff’s clinical neuropsychologist. Id. Dr. Bilder would also ask questions regarding Plaintiff’s recollections of the incident, and the examination may include a review of Plaintiff’s medical history. Id.
Plaintiff has a number of objections to these proposed conditions and limitations. The court will address the parties’ arguments in turn.
In his supplemental reply, defendant Levy argues the supplemental opposition improperly raises issues beyond the scope of briefing authorized for the supplemental papers. Mental Exam Supp. Reply at 2. Defendant contends the court previously stated it was inclined to grant the motion and only requested that Defendant inquire of Dr. Bilder to determine whether the list of proposed psychometric tests could be narrowed and to file a brief on that specific issue. Id. at 1-2. Defendant, thus, appears to argue the only remaining issue is whether the proposed list is sufficient. The court disagrees.
The court has not dismissed Plaintiff’s other arguments or ruled Defendant is the prevailing party on all issues aside from the sufficiency of the list of potential tests. Although the court only requested supplemental briefing on whether the list could be narrowed, the court did not rule in Defendant’s favor regarding the remaining arguments or state that Plaintiff’s other objections lacked merit.
Plaintiff’s supplemental opposition does not raise any new arguments but only repeats the arguments Plaintiff previously raised with citations to the original brief. Thus, while Levy is correct that Plaintiff has discussed issues beyond the scope of authorized supplemental briefing, this discussion does not exceed the scope of arguments made in the opposition brief and does not constitute an improper attempt to relitigate the points and authorities already raised. The court will not limit its discussion and ruling to the sufficiency of the offered list.
1. Defendant’s Offered List of Potential Tests
First, Plaintiff objects that defendant Levy has failed to specify the diagnostic tests that are to be performed in the notice of the motion, as is required under section 2032.320. Opp. to Mental Exam Mot. 3. Plaintiff cites Carpenter to argue that the plain meaning of section 2032.320 requires a court’s order compelling a mental examination to describe in detail the diagnostic test and procedures to be employed and to list them by name. Opp. to Mental Exam Mot. 3.
In Carpenter, the defendant sought to compel the plaintiff to appear for a mental examination, including to evaluate the plaintiff’s cognitive and emotional functioning, such as memory, concentration, attention, visual capacity, etc. Carpenter, 141 Cal. App. 4th at 255-56. The defendant sought to have the performing doctor determine which specific tests to apply at the time of the mental examination, after conducting a physical neurological examination of the plaintiff, instead of identifying the tests beforehand. Id. at 255. The doctor argued he could not identify the specific tests to be employed in advance, stating: “‘It may be possible to provide a list of all psychological tests which could possibly be administered, but we cannot provide a list of specifically which psychological tests will be administered, because they will be selected based upon the patient’s clinical presentation.’” Id. at 256.
On appeal, the court held: “The plain meaning of section 2032.320 … is that 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.” Id. at 260 (italics in original). The court further held that an identification of the general “types” or categories of tests is insufficient and that “the plain meaning of section 2032.320 is that the trial court must ‘specify the … diagnostic tests and procedures’ of the mental examination by naming the tests and procedures to be performed.” Id. at 260-262.
Defendant argues the Carpenter court found that providing “a list of all of the tests that could be administered – in other words, the written standardized tests from which he would select in testing Carpenter’s emotional and cognitive functioning” would have been permissible. Reply to Mental Exam Mot. 3 (quoting Carpenter, 141 Cal. App. 4th at 270). The court disagrees that Carpenter allows a moving party to comply with the statutory requirements by submitting a list of all the tests that may be performed.
In Carpenter, 141 Cal. App. 4th at 270, the court recognized that the examining doctor “claimed that he could not identify in advance all of the specific tests he would eventually conduct, since the ultimate selection depended upon Carpenter’s presentation of his injuries during the mental examination.” The court noted, however, that for the requesting party to have requested the mental examination in good faith, the doctor had to have known of some tests he would necessarily administer. Id. Given the limited time allotment of four to six hours to conclude all of the written testing, the court found it surprising the parties could not have come to a reasonable agreement on the test to be used that afternoon. Id. The court ultimately held that the trial court erred and that the order granting the mental examination must be vacated. The court further ordered the parties to meet and confer regarding the specific tests the examining doctor may employ. Thus, while Carpenter suggests that a requesting party may be able to comply with the statutory requirement with a list of potential tests, Carpenter establishes that the list must be reasonable and must provide some specificity regarding the tests that are to be performed.
Here, Defendant argues he has provided a list of proposed tests that comports with Carpenter. Reply at 3. The original list Levy provided identified 102 separate tests that may potentially be conducted. Not. Mental Exam Mot. 2-5. At the July 22, 2020 hearing, the court requested defendant Levy inquire of Dr. Bilder to determine whether the list of proposed psychometric tests could be narrowed and to file additional briefing on that issue. Defendant’s supplemental brief contains 23 separate entries listing 40 tests. Mental Exam Supp. Br. 2. In his supplemental reply, Levy notes the list contains a scrivener’s error and improperly lists each test twice. Mental Exam Supp. Reply 2 n.1.
Plaintiff objects that the list is improper as it seeks to “augment” the prior list rather than to replace it. Mental Exam Supp. Opp. 5. Plaintiff further notes the list contains two tests that were not previously identified and reduces multiple sub-tests that were separately listed to single-entries. Mental Exam Supp. Opp. 5-6. In its supplemental reply, defendant Levy apologizes for the use of the word “augment” and states that the list is intended to narrow the scope of potential tests to 40. Mental Exam Supp. Reply 2.
Defendant Levy’s offered reduced list does not constitute a list of the specific diagnostic tests and procedures that are to be performed at the mental examination, but is instead a list of all potential diagnostic tests Dr. Bilder may choose to perform. Although, the court recognizes that Defendant has reduced the list of proposed tests from approximately 100 to 40, this reduced list is still insufficient to give Plaintiff notice of the specific tests that are reasonably likely to be used during the mental examination or to provide specific notice as to the scope and nature of the examination, as is required by section 2032.320. See Code Civ. Proc. § 2032.320(d); see also Carpenter, 141 Cal. App. 4th at 261-62.
Defendant Levy does not suggest Dr. Bilder will attempt to perform all of these tests during the limited testing period or provide any explanation as to why any or all of these tests are necessary to diagnose Plaintiff’s mental condition. Defendant similarly does not provide a declaration by Dr. Bilder stating why he is not able to further reduce this list of tests or stating what additional information he needs before he is able to determine which tests to apply. As such, Defendant fails to demonstrate the reduced list is sufficient to comply with the statutory requirements or controlling case law.
Defendant contends the list is necessary to allow Dr. Bilder to select the specific tests after performing an initial examination of Plaintiff. Mental Exam Mot. 5. However, Defendant’s proposed procedure is the same as the one the Carpenter court rejected. See Carpenter, 141 Cal. App. 4th at 267-70. As mentioned, Carpenter makes clear “section 2032.320 means what it says—that the diagnostic tests and procedures must be specified….” Id. at 267. “If an examiner determines in his or her professional judgment, during the course of the mental examination, that an alternative or additional test should be administered, the parties may meet and confer and, if necessary, return to the trial court to resolve any dispute. The possibility that an additional test may not be ordered will encourage defendants to be forthright in their initial request; the potential that the mental examination may be reconvened will encourage plaintiffs to negotiate reasonably as well. Most matters should be foreseen and addressed in the initial motion, or at the latest upon a good faith meet-and-confer when the matter arises.” Id. at 270 n.9.
In his supplemental reply, Levy further argues the offered list is proper because Plaintiff has not objected to any of the proposed tests on substantive grounds. Mental Exam Supp. Reply at 4. The court disagrees.
As the moving party, Defendant bears the burden to demonstrate good cause for the requested tests. See Code Civ. Proc. § 2032.320(a). He cannot shift that burden by submitting a list of 40 tests and calling for Plaintiff to object substantively to each test on the list. To the contrary, Defendant’s argument demonstrates why it is important he be required to provide the specific tests Dr. Bilder intends to perform or is reasonably likely to perform, as that would enable Plaintiff to consider and potentially challenge the actual tests that are to be performed or are reasonably likely to be performed. It would also allow the court to evaluate the parties’ arguments without wasting time considering the reasonableness of tests that are unlikely to be used.
In sum, Defendant fails to meet his burden to demonstrate good cause for the court to allow Dr. Bilder to conduct an examination as to the offered list of tests. The court CONTINUES the hearing on this motion to November 6, 2020 and ORDERS the parties to meet and confer regarding the tests Dr. Bilder is reasonably likely to perform during the mental examination. The parties are further ORDERED to submit a joint statement by October 30, 2020, regarding the tests that are to be included in a court order.
The court will now address the remaining issues raised in the parties’ briefs.
2. The Individual(s) Who Are to Perform the Examination
The notice of the motion states that the psychometric testing would be performed by a qualified and licensed neuropsychologist at Dr. Bilder’s direction, likely Palia Seider, Ph.D. Not. Exam Mot. 5.
First, Plaintiff objects that California law does not permit Levy to have two different neuropsychologists examine Plaintiff. Opp. to Mental Exam Mot. 4. Plaintiff does not cite any legal authority to support this assertion.
Section 2032.320(d) states: “An order granting a physical or mental examination shall specify the person or persons who may perform the examination ….” Code Civ. Proc. § 2032.320(d). This language expressly allows the court to authorize more than one person to perform a physical or mental examination under the Discovery Act. Id. Plaintiff’s first argument, thus, fails.
Second, Plaintiff objects that defendant Levy fails to identify the individual who will perform the examination and improperly seeks to have the examination performed by individuals who are not qualified under section 2032.020, including Dr. Seider. Opp. to Mental Exam Mot. 5-6.
Defendant cites Reuter v. Superior Court, 93 Cal. App. 3d 332, 340 (1979), for the proposition that individuals that do not meet the requirements of section 2032.020 may conduct the examination as long as they are under the direction of a licensed doctor who meets the statutory requirements. Exam Mot. Br. at 6. In Reuter, the moving party sought to have the plaintiff mentally examined by a psychologist. Reuter, 93 Cal. App. 3d at 335. The opposing party objected that a psychologist was not authorized to perform the mental examination under the applicable statute. Id.
Reuter arose under former section 2032, which authorized the court to order a party whose mental state was in controversy to submit to a mental examination by a “physician.” Id. at 340. Because the Code of Civil Procedure did not define the term “physician,” the court looked to the definition of “physician” in Business and Professions Code section 4033 before determining that a “physician” was a person who possessed a valid and unrevoked physician’s and surgeon’s certificate or certificate to practice medicine and surgery, issued by the Board of Medical Quality Assurance or the Board of Osteopathic Examiners of California. Id. A “psychiatrist” was a physician who specialized in mental, emotional, or behavioral disorders. In contrast, a psychologist was not licensed as a physician and would not be allowed to perform a mental examination under the applicable definition of “physician.” Id. at 339. The court, however, held that the plaintiff could be examined by a psychologist if the psychologist was working under the general direction of a psychiatrist because the role of the psychologist was to provide data for the examining psychiatrist to use. Id. at 339-40. As the court explained, “[t]o prevent a physician from delegating certain duties to competent specialists in accordance with accepted medical practices would be to deny the reality of the modern medical profession.” Id. at 339.
The former section 2032 was subsequently amended to provide that: “A mental examination conducted pursuant to this section shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” Code Civ. Proc. § 2032(b) (1985). The current section 2032.020 contains similar language and states: “A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” Code Civ. Proc. § 2032.020(c)(1) (emphasis added). Applying Reuter to the current section 2032.020 and the case at hand, Dr. Bilder may delegate the administration of Plaintiff’s examination and the data-collection process to a psychologist under his direction as long as the person who performs the examination meets the statutory requirements of section 2032.020(c)(1). See Code Civ. Proc. § 2032.020(c)(1).
Plaintiff presents evidence that Dr. Seider lacks five years of postgraduate experience in the diagnosis of emotional and mental disorders. Declaration of Mark Allen Kleiman (“Kleiman Decl.”) Ex. B. Defendant Levy does not dispute this evidence and Dr. Seider, thus, appears to lack the qualification to perform this examination.
The court, therefore ORDERS the parties to meet and confer regarding the role Dr. Seider will play in Plaintiff’s mental examination and whether she will merely administer the tests and collect data at Dr. Bilder’s direction, which is allowed under Reuter, or whether she will engage in any analysis of the results or otherwise diagnose Plaintiff’s mental condition, which is not.
Third, Plaintiff argues that section 2032.320 requires the court’s order to “specify the person or persons who may perform the examination….” Opp. to Mental Exam Mot. 5, citing Code Civ. Proc. § 2032.320(d). Defendant argues that the motion and proposed order sufficiently identify Dr. Bilder as the person who will perform the examination, with a qualified and licensed neurophysicist performing psychometric testing at Dr. Bilder’s direction. Reply to Mental Exam Mot. 4-5
As discussed above, section 2032.020 and Reuter allow a qualified examiner to delegate certain duties to competent specialists under their direction. Reuter, 93 Cal. App. 3d at 339-40. Accordingly, defendant Levy shall be required to disclose the names of individuals who will examine the results of Defendant’s tests, and is not required to disclose the names of qualified neuropsychologists or neurophysicists if they only engage in administrative or data-collecting conduct and do not provide any analysis or recommendations regarding Plaintiff’s medical condition.
The court, therefore, ORDERS the parties to meet and confer regarding the role and duties to be performed by the individual who would conduct the actual testing.
C. Dr. Bilder’s Consent Form
Defendant argues Plaintiff should be required to sign a consent form because Dr. Bilder requires all examinees to execute a consent form. Exam Mot. Br. at 7; Reimers Decl. Ex. F. The proposed form states:
I understand that the purpose of this evaluation is to provide information about me for an independent examination, civil, or criminal case and not for treatment of any type. Consequently no doctor-patient relationship will be or is intended to be formed nor will any advice or responses to inquiries about diagnoses or treatment matters be provided.
Dr. Bilder’s questions will touch on personal and private matters that could cause psychological discomfort. I recognize that Dr. Bilder does not intend to cause any personal discomfort and is carrying out his professional task associated with this evaluation. Even though some of the subject under discussion may not appear at first glance to have a direct connection with this issue at hand, I will cooperate to the best of my ability. I understand that although I am expected to give honest and accurate answers, I am free to refuse to answer any question I choose or to terminate the evaluation whenever I wish. I understand that whatever I state during this evaluation may later be presented and examined in legal proceedings. Dr. Bilder is required to notify authorities if he knows of or suspects that a child, elder, or dependent adult is abused or if he has reason to believe that I may harm others or myself.
I understand that if a report is developed as a result of this evaluation it will be forwarded to a representative of the organization requesting the exam, an attorney or his/her designate. Disclosure of any aspect of that report will be the responsibility of the recipient of the report or his/her designate.
Reimers Decl. Ex. F.
Plaintiff contends it is improper for Defendant’s chosen doctor to require Plaintiff to agree that the examination is “independent” or to surrender his right to subpoena Dr. Bilder’s file. Opp. to Mental Exam Mot. 7. Plaintiff further argues the requested consent form is improper because the Code of Civil Procedure does not require the subject of a medical examination ordered under the Discovery Act to sign a consent form. Id.
Defendant Levy argues the consent form constitutes a reasonable request for Plaintiff to acknowledge the nature of the examination. Reply to Mental Exam Mot. 6. Defendant does not provide any legal authority to support his assertion that a party that seeks to conduct a medical examination under the Discovery Act may require the subject of a physical or mental examination to sign a consent form.
A party’s right to obtain discovery regarding the physical or mental condition of a party is set forth under Article 1 of Chapter 15 of the Discovery Act, beginning with section 2032.010. The statutory scheme does not require the subject of an examination to sign any consent agreement. See Code Civ. Proc. § 2032.010, et seq. Furthermore, the consent would likely not be enforceable as Plaintiff would not appear to receive any consideration in exchange for it and the agreement would appear to lack mutual consent as Plaintiff’s signature would be obtained solely as a result of a court order. See Civ. Code § 1550.
Accordingly, the court DENIES Defendant Levy’s request to order Plaintiff to sign the proposed consent form in connection with the requested mental examination.
D. Production of Raw Data to Plaintiff’s Counsel
Code of Civil Procedure section 2032.610(a) permits a party that submits to a mental examination to demand: “(1) 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 “(2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner” Code Civ. Proc. § 2032.610(a).
Defendant contends Dr. Bilder is ethically constrained from providing raw test data to anyone other than a licensed neuropsychologist. Exam Mot. Br. at 6. According to Levy, Dr. Bilder would only be willing to provide the raw data to Plaintiff’s retained neuropsychologist to accommodate his ethical requirements. Id. Plaintiff argues he is entitled to a copy of these records under the Discovery Act. Opp. to Mental Exam Mot. 8.
The Discovery Act allows a party to obtain discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code Civ. Proc. § 2017.010.
Defendant does not provide a sworn declaration by Dr. Bilder attesting to his ethical concerns or any other evidence of Dr. Bilder’s ethical restrictions. Defendant likewise does not identify any legal authority or ethical rule that would prohibit a neuropsychologist from providing the raw data from an examination to the subject of the examination, at the examinee’s request pursuant to court order. Defendant, thus, fails to demonstrate that Dr. Bilder can lawfully refuse to disclose the raw data from the examination to Plaintiff if it is requested.
Although California law recognizes that a patient has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication between a patient and psychotherapist (Evid. Code § 1014), this privilege belongs to the patient and not the psychotherapist. A psychotherapist may not claim the privilege “if he or she is otherwise instructed by a person authorized to permit disclosure.” Evid. Code § 1014(c). Accordingly, Dr. Bilder could not assert the psychotherapist-patient privilege to refuse to provide the raw data to Plaintiff.
Defendant additionally argues this is a dispute that should be resolved after the examination and that Dr. Bilder’s refusal to hand over his raw data should not prevent the examination from proceeding. Reply to Mental Exam Mot. 7-8. The court disagrees. Dr. Bilder’s willingness to produce documents in discovery goes to the question of whether he is an appropriate doctor for this court to allow to conduct the examination. Defendant Levy does not offer any explanation for why he cannot select a different doctor to perform the examination if the doctor he has selected preemptively refuses to produce such data in discovery to the party he is examining. Defendant’s argument, thus, fails.
Accordingly, the court finds that Dr. Bilder cannot refuse to produce the raw data of the examination to Plaintiff, if requested. If Dr. Bilder declines to conduct the examination as a result, then Defendant will need to identify a different doctor to perform the examination.
E. Observation by a Third Party
Plaintiff contends the test environment and administration must be observed to ensure fairness and objectivity. Opp. at 8-9. Defendant Levy contends Dr. Bilder cannot permit a third-party observer during the psychometric testing due to concerns that the presence of a person other than examiner may alter the exam results. Exam Mot. Br. at 6.
Defendant cites Golfland Entertainment Centers, Inc. v. Superior Court, 108 Cal. App. 4th 739, 746-48 (2003), to argue that counsel should not be allowed to be present during a mental examination. Exam Mot. Br. at 6. In Golfland, 108 Cal. App. 4th at 747, the court recognized that “in most cases, counsel should not be permitted to attend a mental examination, even though trial courts retain the discretion to allow counsel’s presence in exceptional cases.”
In Edwards v. Superior Court, 16 Cal. 3d 905 (1976), the Supreme Court considered whether an individual should be allowed to have counsel present at a mental examination. There, the plaintiff argued that her counsel’s presence should be required to protect her from improper questioning, ensure accurate reporting, and make the examination a more comfortable experience. Id. at 910. The Supreme Court held that the plaintiff’s objections were not “of sufficient validity to overcome defendant’s statutory right to an effective psychiatric examination conducted under circumstances best calculated to assure that the trier may acquire a fair and objective evaluation of the impact, if any, of the accident in question on plaintiff's mental and emotional condition.” Id.
The Court explained:
We are unable to accept the thesis that counsel’s presence is necessary to protect the examinee from “improper” questions. The analyst in a psychiatric examination seeks by careful direction of areas of inquiry to probe, possibly very deeply, into the psyche, measuring stress, seeking origins, tracing aberrations, and attempting to form a professional judgment or interpretation of the examinee’s mental condition. Given such techniques and purposes we do not think that an attorney, no matter how well intentioned, can fairly and objectively monitor such an examination. Psychiatry is a discipline requiring highly specialized skills. Further, while properly objecting to a question on legal grounds, counsel does not necessarily possess the ability to define the psychiatric relevance of elicited answers. Many questions which would be legally objectionable, if posed in a courtroom, might be very relevant in the formulation of a sound psychiatric judgment. Rather than encourage a procedure which would permit counsel to interject his own arguments and objections into the examination, we believe other procedural safeguards adequately protect plaintiff’s legitimate interests.
Id. at 911.
The Court revisited this question in Vinson v. Superior Court, 43 Cal. 3d 833, 845-46 (1987), and declined to reconsider its prior holding. As the Vinson Court explained, an examiner should have the freedom to examine the individual without distraction and potential disruption and to “probe deeply into the plaintiff's psyche without interference by a third party.” Id. at 844-45. In making this ruling, the Court recognized that “trial courts retain the power to permit the presence of counsel or to take other prophylactic measures when needed.” Id. at 846.
Here, as in Vinson, Plaintiff does not present any evidence to demonstrate that exceptional circumstances exist that would require the presence of his attorney or other prophylactic measures during this examination. Although Plaintiff argues there would be no harm if an observer were allowed to sit outside of Plaintiff’s view and to document the experience, the presence of a third-party observer has the potential to cause distraction and disruption that could affect the outcome of the examination.
Plaintiff alternatively requests that an observer be allowed to watch a video of the proceedings in an adjacent room. It is unclear, however, what possible need Plaintiff could have for an observer to watch a real-time video of the examination, rather than a recording—other than to have that observer potentially interrupt the proceedings if the observer believes the examiner has asked an inappropriate question. Plaintiff and Dr. Bilder’s knowledge that the examination is being observed in real time could affect the course of the examination and distract Plaintiff or Dr. Bilder. This potential distraction and disruption are not allowed except in exceptional circumstances, which have not been demonstrated here.
Accordingly, the court DENIES Plaintiff’s request to have his attorney or a third party observe the examination in real-time. Plaintiff, however, may arrange to have the proceedings recorded as long as each party is able to obtain a copy of the entire recording after the examination.
In sum, the court CONTINUES the hearing on the subject motion to November 6, 2020 and ORDERS the parties to meet and confer regarding a list of the tests that Dr. Bilder is reasonably likely to perform during the mental examination and the role that Dr. Seider or another qualified neuropsychologist is to have in the examination. The parties are to submit a joint statement by October 30, 2020, regarding their meet and confer efforts and any disputes that remain.
Defendant’s Motion to Compel Plaintiff to Submit to Medical Examination
I. Plaintiff’s Procedural Arguments
As an initial matter, Plaintiff contends the motion is defective because Defendant Levy did not submit a separate statement, as is required under California Rules of Court, rule 3.1345(a)(6). Supp. Opp. to Med. Exam Mot. 1. Rule 3.1345(a)(6) states, in relevant part: “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. … [This includes] a motion: … (6) For medical examination over objection….” Cal. R. Ct. 3.1345(a)(6).
Defendant argues a separate statement is not required because this motion is brought under Code of Civil Procedure section 2032.310, which, unlike a request under section 2032.220(a), does not provide for a response or objections. Supp. Reply to Med. Exam Mot. 2-3.
The court agrees with Defendant that a motion under section 2032.310(a) does not qualify as a motion for a medical examination over objection, as it involves a different set of procedures than those established under section 2032.220(a). Thus, the court will not deny the motion on this basis.
II. Meet and Confer
As stated above in connection with Defendant’s other motion, a motion for an examination under Code of Civil Procedure section 2032.310(a) must be accompanied by a meet and confer declaration under section 2016.040. Code Civ. Proc. § 2032.310(b).
Defendant Levy submits a declaration by Ethan Reimers in support of the subject motion (“Reimers Med. Exam Decl.”). Reimers attests he inquired with Plaintiff’s counsel on March 5, 2020 whether Plaintiff would voluntarily submit to an examination by Dr. Hamid Djalilian. Reimers Med. Exam Decl. ¶ 4. Plaintiff refused to submit to testing unless Defendant produced the audiologist for deposition. Id. Reimers responded that Defendant would not agree because he had not retained the audiologist as an expert witness but that he would not object to the audiologist being deposed as a third-party witness. Id. According to Reimers, Plaintiff refused to agree to the examination on these terms. Id.
This declaration is sufficient to meet the statutory requirements.
III. Legal Standard
A defendant in a personal injury action “may demand one physical examination of the plaintiff” if certain conditions are met. Code Civ. Proc. § 2032.220(a). The defendant must file a motion under section 2032.310 and obtain leave of court if it wishes to obtain additional physical examinations. Code Civ. Proc. § 2032.310(a). The court shall grant a motion for a physical examination under section 2032.310 only for good cause shown. Code Civ. Proc. § 2032.320(a). To establish “good cause,” the moving party must produce specific facts justifying the discovery and that the subject matter is relevant to the action. Vinson, 43 Cal. 3d at 840.
“A physical examination conducted under this chapter shall be performed only by a licensed physician or other appropriate licensed health care practitioner.” Code Civ. Proc. § 2032.020(b). The motion for a physical examination 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. § 2032.310(b). The party who seeks to compel a physical examination bears the burden to specify the diagnostic tests and procedures to be conducted. Carpenter, 141 Cal. App. 4th at 267. The same standard of specificity applies as for a mental examination under this section. Id. at 261.
Defendant Levy moves for leave to conduct a physical examination of Plaintiff. Med. Exam Mot. 1-2. Defendant contends good cause exists for this examination because Plaintiff has placed multiple ongoing conditions in controversy, including the condition of his ear and hearing. Med. Exam Mot. 2- 3. The notice of the motion states that the examination would be performed by Dr. Hamid Djalilian (“Dr. Djalilian”), a board-certified otolaryngologist who is licensed to practice in the State of California. Med. Exam Mot. 1. The proposed physical examination is to consist of the following: “Physical examination, audiogram, tympanogram, acoustic reflex testing, optoacoustic emissions, tinnitus matching, videonystagmogram.” Id. at 2. The notice of the motion further states: “Audio tests may be performed by a qualified audiologist.” Id.
Plaintiff does not oppose a medical examination but contends Defendant should be required to identify the audiologist in advance and be responsible for producing the audiologist for deposition. Supp. Opp. to Med. Exam. Mot. 3. Plaintiff argues audiologists are licensed healthcare professionals who are required to have a Master’s degree at a minimum and who are trained to diagnose, manage, and treat hearing disorders. Id. at 4. Plaintiff further contends an audiologist is a highly trained and qualified professional who is expected to and will exercise his or her own judgment and discretion in conducting an audiological examination. Id. According to Plaintiff, Defendant Levy is improperly seeking to conduct a second examination by an independent, licensed professional and should be required to disclose the name of this individual in advance. Id.
Section 2032.020(b) states: “A physical examination conducted under this chapter shall be performed only by a licensed physician or other appropriate licensed health care practitioner.” As discussed above in connection with Defendant’s other motion, an examining physician or otherwise qualified individual may delegate certain duties to competent specialists who may perform their work under the general direction of the examiner. Reuter, 93 Cal. App. 3d at 339.
Psychologists, like audiologists, are a type of medical specialist trained to diagnose, manage, and treat medical disorders in their area of specialty. Cf. Bus. & Prof. Code § 2903, et seq. (setting out the license requirements for psychologists) with id. § 2532, et seq. (setting out the license requirements for audiologists). In Reuter, the court recognized that physicians can delegate certain testing tasks to psychologists working under the general direction of a psychiatrist, even if they are not qualified to independently examine a party. Id. at 339-40. Thus, the fact that an audiologist is qualified to diagnose, manage, and treat hearing disorders is, alone, insufficient to demonstrate that he or she will necessarily be a second, independent examiner under section 2032.020(b) rather than a merely a specialist who is gathering data on the actual examiner’s behalf.
Nevertheless, because section 2032.020 allows appropriate licensed health care practitioners to conduct physical examinations, an audiologist would appear to be able to perform an independent examination. See Code Civ. Proc. § 2032.020(b). Accordingly, the question of whether Defendant Levy is required to identify the audiologist will turn on his or her role and duties in connection with the examination. If the audiologist’s role will be limited to the administration of the examination and data collection, rather than any analysis of the results or diagnosis of Plaintiff’s physical condition, he or she would not need to be identified under section 2032.310(b), as he or she would be the person who will “perform” the examination as that term is used in Chapter 15 of the Discovery Act. See Code Civ. Proc. §§ 2032.020(b), 2032.310(b). However, if the audiologist will perform any analysis of the results or separately diagnose Plaintiff’s physical condition, he or she would need to be identified in as a second examiner. See id.
The court, therefore, ORDERS the parties to meet and confer regarding the role that the audiologist will play in this examination and whether he or she will merely administer the tests and collect data at Dr. Djalilian’s direction or whether he or she will engage in any analysis of the results or otherwise diagnose Plaintiff’s physical condition, as an independent examiner. See Reuter, 93 Cal. App. 3d at 339-40. The parties are to submit a joint statement by October 30, 2020, regarding their meet and confer efforts and any disputes that remain.
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