Case Number: BC636830 Hearing Date: June 25, 2018 Dept: 4

MOVING PARTY: Defendant Charles Larry Pugh

RESPONDING PARTY: None

Motion to Compel the Neuropsychological Examination of Plaintiff Duque

The court considered the moving papers.

BACKGROUND

On October 11, 2016, plaintiff Jackeline Duque filed a complaint against defendant Charles Larry Pugh for motor vehicle negligence and negligence based on res ipsa loquitor resulting from a May 4, 2016 collision with defendant.

On May 3, 2017, the court granted defendant’s motions to compel discovery responses.

Trial is set for August 6, 2018.

DISCUSSION

Defendant requests an order to compel the neuropsychological examination of plaintiff on June 27, 2018 at 9:00 a.m. with James R. High, M.D. at 501 Santa Monica Boulevard, Suite 400, Santa Monica, California 90401.

“As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.

CCP § 2032.020 states: “(a) Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action. . . . (c) 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.”

CCP § 2032.310(a) states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

CCP § 2032.320 states in part: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) 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. (e) If the place of examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved. (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”

On May 23, 2018, defendant served plaintiff with a Demand for Mental/Psychiatric Examination of Plaintiff, for June 27, 2018. Plaintiff served an objection on May 31, 2018, asserting that the proposed exam is “irrelevant” and that “defendant has failed to show specific facts justifying discovery.”

Defendant argues that he has good cause to obtain a mental examination of plaintiff. He explains that plaintiff attributed the incident as causing injuries to her “(1) neck and upper/lower back, (2) wrists, feet and knees” as well as “mental and emotional stress.” Plaintiff further alleges that she suffers daily from “throbbing neck pain that goes to [her] shoulders and upper arms; burning upper back pain; lower back pain that is a combination of throbbing pain, stabbing pain, [and] pinching pain; burning wrist pain; burning pain under the left ankle; knee pain; leg pain, specifically numbness in her left leg above the knee; and mental/emotional distress.” Plaintiff stated that she took medication for anxiety and insomnia as a result of the accident. During deposition on February 27, 2018, plaintiff testified that she treated and continued to treat with a psychologist due to “feeling very depressed” and “having a hard time sleeping and eating.”

There is no opposition.

The court finds that defendant has shown good cause. Plaintiff has placed her mental condition in controversy. Defendant has complied with CCP §§ 2032.310 and 2032.320.

The court ORDERS:

Plaintiff is ordered to appear for a neuropsychological examination on June 27, 2018 at 9:00 a.m. with James R. High, M.D., at 501 Santa Monica Boulevard, Suite 400, Santa Monica, California 90401.

The examination will be conducted for the purpose of determining the origin, nature, and severity of plaintiff’s alleged difficulties/impairment. The doctor may perform certain non-invasive diagnostic tests in order to do a complete and thorough examination allowing him to arrive at a diagnosis, prognosis and conclusion. The scope and manner of the exam may include a physical examination of the plaintiff.

Plaintiff will be administered a battery of neuropsychological tests. Tests that may be administered include but are not limited to the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), Personality Assessment Inventory (PAI), and the Trauma Symptom Inventory (TSI-2).

The examination will not include any diagnostic test or procedure that is unduly protracted, painful, intrusive, or otherwise endangering the health or life of plaintiff.

Testing shall be limited to not more than five hours, excluding breaks and lunch.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 25, 2018

____________________________

Dennis J. Landin

Judge of the Superior Court