2012-00120270-CU-WT
Jennifer Hollinger vs. California Department of Corrections
Nature of Proceeding:
Filed By:
Motion to Compel Mental Examination
Kubicek, Matthew W.

Defendant CDCR’s Motion for Order Compelling Mental Examination of Plaintiff is
GRANTED. C.C.P., sec. 2032.310

Plaintiff’s Second Amended Complaint alleges discrimination against her on the basis
of a claimed disability, and because she was retaliated against for requesting a
reasonable accommodation and for opposing discrimination in the workplace. She
repeatedly alleges that she has suffered “severe” or “substantial” mental and emotional
distress caused by defendant CDCR. (SAC, paras. 30, 36, 41, 54, 62, 63, 67 and
prayer.) In response to a request for statement of damages, plaintiff has claimed
“human loss” (emotional damages) of $2,700,000. (Kubicek Dec., Exh. A.)

Plaintiff served interrogatory responses claiming she has suffered a worsening of her
alleged severe psychological symptoms. She testified at deposition that she suffers
from anxiety, weight gain, loss of sleep, and vomiting due to Defendant CDCR’s
alleged actions. Despite attempts to obtain plaintiff’s counsel’s stipulation to have plaintiff appear for
her mental examination, no agreement has been received.

The motion specifies the time, place, manner, conditions, scope, and nature of the two
examinations, as well as the identity and the specialty of the persons who will perform
the examinations. The motion is accompanied by a meet and confer declaration. Code
Civ Proc § 2032.310

The court shall grant a motion for physical or mental examination under Section
2032.310 only for good cause shown.” (CCP § 2032.320(a).) Good cause requires a
showing of relevancy to the subject matter and specific facts illustrating a need for the
information and a lack of means for obtaining it elsewhere. (Vinson v. Superior Court
(1987) 43 Cal.3d. 833, 840.) As in Vinson, supra, at pp. 839-840, here plaintiff brought
defendant into court and accused it of causing her various mental and emotional
ailments. Defendant denies her charges. As a result, the existence and extent of her
mental injuries is indubitably in dispute. In addition, by asserting a causal link between
her severe mental distress and defendant’s conduct, plaintiff implicitly claims it was not
caused by a preexisting mental condition, thereby raising the question of alternative
sources for the distress. The Court thus concludes that her mental state is in
controversy and that good cause exists for the requested mental examination. C.C.P.,
sec. 2032.310, et. seq. only requires that for an order for a mental examination, that
the plaintiff’s mental condition must be “in controversy” and there must be “good
cause” for the examination. Defendant has demonstrated both.

Also, Plaintiff has previously made a Worker’s Comp claim for emotional distress, so
the defendant is entitled to a mental exam to determine whether the claimed emotional
distress was preexisting.

The scope of the mental examination of plaintiff proposed is: The psychological
examination with Dr. McDermott will require 6 hours (5 hours of testing and an hour
lunch break.) That amount of time is necessary to do a comprehensive examination of
intellectual functioning, reasoning, judgment, psychological symptoms, mental
disorders and personality traits-all of which have a direct bearing on arriving at an
accurate diagnosis and in providing information regarding the plaintiffs motivations and
credibility. The test data is directly relevant to matters of causation of the claimed
emotional damages and Plaintiffs mental status.

Subsequently, Dr. Scott’s proposed psychiatric examination will consist of a formal
forensic psychiatric interview which would last for a maximum of 8 hours exclusive of
breaks and would consist of a mental status examination, an assessment of her
current functioning and complaints, and information about the Plaintiffs allegations in
this lawsuit and claims made by her. Dr. Scott would also need to obtain a complete
history. This includes Plaintiffs recent and past personal, family, developmental,
medical, psychiatric, educational, employment, occupational, marital, relationship, and
legal histories. It is also important to obtain a history of her strengths and
vulnerabilities during her life including information about past stresses and how she
dealt with them. Psychological tests to evaluate specific symptoms reported during the
examination may also be administered.

The proposed examinations will not duplicate each other, but rather are two
interrelated components of one comprehensive mental examination. (McDermott Decl,
4.) The Court finds that plaintiff has placed her mental state in controversy in this action, and that defendants have shown good cause for the proposed mental
examinations.

The Court is unpersuaded by plaintiff’s assertion that her current medical insurance
status affects the need for this mental examination.

Although plaintiff’s counsel attempts to identify the nature and purpose of the tests to
be administered by the doctors to the plaintiff, to show that they are unnecessary or
irrelevant, she has failed to establish her credentials as an expert in this area, and her
lay opinions are inadmissible. The Court is therefore unpersuaded. No less intrusive
means for obtaining this information has been shown.

The Court notes that counsel for plaintiff has attached her client’s Worker’s Comp
mental health evaluations from 2008-2010 to her declaration, without a request to
provisionally file them under seal. To the extent that counsel seeks to protect her
client’s privacy, she must follow the procedures set forth in California Rules of Court,
Rules 2.550 and 2.551, regarding motions to seal and to conditionally seal. The failure
to follow such requirements may result in the documents being placed in the public
record with no ability to later treat them as sealed. Hurvitz v. Hoefflin (2000) 84
Cal.App. 4th 1232, 1245 (“neither the state nor the federal Constitution permits the
court to lock the barn door after the horse is gone.”)

No persons are permitted to be present for the examinations except the plaintiff and
the doctors and their staff. Both physicians and the plaintiff may make an audio
recording, to be treated as private and confidential and used for the purposes of this
litigation only.

Plaintiff shall appear for and cooperate with a complete psychological testing to be
conducted by Dr. Barbara McDermott on Friday May 19, 2014, starting at 8:30 a.m.
until approximately 2:30 pm, and a second exam to be conducted by Dr. Charles Scott,
M.D., on Friday, June 3, 2014, from 8:30 a.m. until approximately 5:00 p.m. at the
Department of Psychiatry and Behavioral Sciences, University California, Davis
Medical Center, 2248 Stockton Blvd., Ste. 1000, Sacramento, Califomia.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.