Case Number: BC652291 Hearing Date: December 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR LEAVE TO CONDUCT NEURO-PSYCHOLOGICAL EXAMINATION OF PLAINTIFF; MOTION GRANTED AS TO HAIK GEVORKYAN

On March 1, 2017, Plaintiffs Hakop Gevorkyan (“Hakop”) and Haik Gevorgyan (“Haik”) (collectively, “Plaintiffs”) filed this action against Defendants Scott Arthur Elliott (“Elliot”) and James Crank relating to a November 24, 2016 automobile accident. Elliot seeks leave to conduct a neuropsychological examination of Plaintiffs.

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code of Civ. Proc., § 2032.220, subd. (a).)

Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code of Civ. Proc., § 2032.310, subd. (a).) A mental examination 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 of Civ. Proc., § 2032.020, subd. (c)(1).) The Court shall grant the motion only for good cause shown. (Code of Civ. Proc., § 2032.310, subd. (a).)

“The only statutorily authorized justification for ordering a mental examination is that the ‘mental condition’ of the examinee is ‘in controversy.’” (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886.) In the absence of an allegation that plaintiff has any current mental injury as a result of defendant’s alleged conduct, her present mental condition is not directly relevant. (Ibid.) Further, “[m]ental examinations are not authorized for the purpose of testing a person’s ‘credibility.’” (Ibid.)

Defense counsel contends a neuropsychological examination is necessary because Plaintiffs are claiming head injuries. (Declaration of Erin O. Hallissy, ¶ 8.) Hakop responded to form interrogatories that he suffered a head injury and testified at his deposition that he continues to experience neurological problems and a heightened sense of awareness on the road. He also testified he experiences dizziness. (Hallissy, ¶ 9.) Haik responded to form interrogatories that he suffered “head injury resulting in traumatic brain injury, vertiginous syndrome and post concussion syndrome” as a result of the accident. At his deposition, Haik testified that that he suffered vertiginous syndrome, has trouble sleeping, remembering, and concentrating. Further, he testified he has problems with memory, dizziness, anxiety and depression. (Hallissy Decl., ¶ 10.)

Plaintiffs’ counsel argues neuropsychological examinations would be unreasonably cumulative and duplicative, as Hakop was already evaluated by a neurologist, Dr. Alberstone, who conducted several tests to assess head injuries. (Declaration of Brian W. Yamada, ¶ 2.) Dr. Alberstone reviewed the report by Plaintiff’s treating neurologist and Dr. Alberstone’s report noted current complaints of dizziness, anxiety, and headaches, and Dr. Alberstone gave an opinion on Hakop’s head injury. (Yamada Decl., ¶ 6.) Haik stipulated to undergo an orthopedic and neurological examination, but Defendants did not request the neurological examination. Further, Plaintiffs’ counsel opposes the proposed scope of the examination and argues there is no good cause to ask questions relating to Plaintiffs’ developmental history, education, employment, social and marital history, legal history, general medical history, mental health history, substance use, and family history. (Yamada Decl., ¶ 3.) Finally, neither Plaintiffs have been examined by a neuropsychologist.

Having considered the moving, opposition, and reply papers, the Court finds Defendant has failed to show good cause to compel the neuropsychological examinations of Plaintiff Hakop. As to Hakop, his injuries appear to be neurological in nature. He responded to interrogatories that he suffered “neurological problems,” heightened sense of awareness on the road, and dizziness. Hakop has already submitted to an examination by Defendant’s neurologist. As to Haik, it appears neuropsychological injuries may be at issue—he stated he suffered traumatic brain injury, vertiginous syndrome and post-concussion syndrome, and experiences problems with memory, dizziness, anxiety, and depression. However, the Court is not satisfied that Defendant has met the requisite showing of good cause that the proposed tests and scope of examination are narrowly tailored to the injuries at issue.

Defendant presented no declaration by its proposed neuropsychologist, Dr. Harwood, stating the purpose of the exam and why interviews into background, legal history, medical history, etc. are relevant to the issues of this case. Further, Defendant must produce a list, by name, of the tests or examinations that may be performed where possible. Defendant states the examination will consist of “a battery of neuropsychological tests” and will last 8 to 9 hours, excluding breaks. This is insufficient to put the Court and Plaintiffs on notice of what the condition, scope, and nature of the examination will be. “The way to describe these ‘diagnostic tests and procedures’–fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

On November 26, 2018, the Court denied the Motion to compel Hakop’s neuropsychological examination. As to Haik, the hearing was continued to this date so that Defendant could file a supplemental declaration and a Notice/Demand for examination showing good cause for the examination of Haik and the scope of the examination.

Defendant filed a supplemental declaration and a declaration by Dr. Harwood. Dr. Harwood declares that based on Haik’s responses to written discovery and his deposition testimony, he suffered traumatic brain injury, vertiginous syndrome and post-concussive syndrome. (Declaration of Dylan Harwood, Ph.D., ¶ 7.) A review of Haik’s medical records revealed decreased attention, focus and short-term memory, word finding difficulties, anxiety, insomnia, depression, flashbacks of the accident, and panic attacks. (Harwood Decl., ¶ 9.) Dr. Harwood states a neuropsychological examination is necessary to determine the etiology/origin of those symptoms, to provide prognoses, and to offer treatment recommendations. (Harwood Decl., ¶ 10.) Dr. Harwood states that based on his background, training, and expertise, Plaintiff’s developmental history, education, employment, social and marital history, legal history, general medical history, mental health history, substance use, and family history are relevant to determining/identifying factors that underlay Haik’s alleged neuropsychological symptoms. (Harwood Decl., ¶ 12.) The mental state evaluation is to understand the origin, nature, and severity of Haik’s alleged difficulties with cognition, emotion, and/or behavior. (Harwood Decl., ¶ 13.) The clinical interview will assist with determining pre-existing mental state injuries or complaints that are not related to the incident. (Harwood Decl., ¶ 14.)

Dr. Harwood will administer tests assessing: intellectual function, attention/information processing speed, language/academic achievement, visuospatial skills, memory for auditory and/or visual information, executive/frontal function, and/or personality/emotional functioning. (Harwood Decl., ¶ 16.) The entire IME will be audiotaped or digitally recorded in its entirety. (Harwood Decl., ¶ 17.) There will be no physical examination. (Harwood Decl., ¶ 19.)

The potential tests to be administered include:

b-test: vigilance and information processing speed

Auditory Consonant Trigrams: working memory

Boston Diagnostic Aphasia Exam and/or Western Aphasia Batter: language

Brief Visuospatial Memory Test – Revised: learning and memory

California Verbal Learning Test – II: learning and memory

Category Fluency: language and/or executive function

Continuous Performance Test – II: attention/information processing speed

Delis-Kaplan Executive Functioning System: executive

Function Dot Counting test: information processing speed

Finger Tapping Test: motor function

Grooved Pegboard Test: motor function

Judgment of Line Orientation: perception of the environment

Minnesota Multiphasic Personality Inventory – 2 or 2 RF: personality/emotional functioning

Personality Assessment Inventory: personality/emotional functioning

Rey Auditory Verbal Learning Test: learning and memory

Rey-Osterrieth Complex Figure Test: visuoperception, learning and memory, and/or executive function

Ruff Figural Fluency Test: executive function

Selective Reminding Test: learning and memory and/or executive function

Semantic Fluency: language and/or executive function

Stroop Test: attention/information processing speed and/or executive function

Symbol Digit Modalities Test: attention/information processing speed

TOMM: learning and memory

Trailmaking Test – Parts A and B attention/information processing speed and/or executive function

Vicotria Symptom Validity Test: attention/information processing speed

Wechsler Adult Intelligence Scale – III or IV: intelligence

Wechsler Memory Scale – III or IV: learning and memory

Wisconsin Card Sorting Test: executive function

Woodcock-Johnson Tests of Academic Achievement – IV: academic achievement

The Court finds there is good cause to compel the neuropsychological examination of Haik. Although Plaintiff argues Haik’s neurologist, Dr. Hamza, did not recommend neuropsychological testing and evaluation in his final examination report, Haik responded to written discovery and testified at his deposition that he attributes neuropsychological injuries and symptoms to this accident. To the extent Haik seeks damages for these injuries, Defendant is entitled to conduct a neuropsychological examination of Haik.

Haik is to appear for a neuropsychological examination by Dr. Harwood at 11835 W. Olympic Blvd., Suite 1265E, Los Angeles, CA 90064, on a date to be agreed upon by the parties. The examination shall last no longer than eight (8) hours, including breaks.

Moving party to give notice.