Andrew Dubovoy v. Timothy Pryko, et al.
Case No: 17CV02528
Hearing Date: Mon Oct 07, 2019 9:30

Nature of Proceedings: Motion

# 17CV02628 Andrew Dubovoy v. Timothy Pryko, et al.,

Hearing Date: 10/7/19

HEARING: Defendants’ motion to compel mental-neuropsychological examination of plaintiff and order limiting dissemination of audio-recording of examination to only neuropsychological experts.

ATTORNEYS:

Chad M. Prentice / Samantha Baldwin of Maho & Prentice, LLP for plaintiff

Kim B. Puckett / Dat-Vinh Nguyen of Calendo Puckett Sheedy LLP for defendants

TENTATIVE RULING: The motion is granted, in the manner outlined below; plaintiff’s request for sanctions is denied.

Background: This action arose from a single vehicle accident which occurred on June 25, 2015, on the northbound U.S. 101, within Los Angeles County. At the time of the accident, plaintiff Andrew Dubovoy was a passenger in the vehicle, which was operated by his brother, Kyryll Dubovoy. The vehicle was owned by defendant Timothy Pryko. Kyryll Dubovoy allegedly lost control of the vehicle and collided with the guard rail, causing personal injuries to Andrew Dubovoy.

Plaintiff has contended in verified discovery responses that he sustained traumatic brain injury and memory loss. Prior defense counsel moved for an order compelling a mental-neuropsychological IME of plaintiff on two occasions, both of which the court granted, but neither order made any provision about any restrictions on the dissemination of the audio-recording. Plaintiff insists that he be permitted to audio-record the entirety of the examination, including all test examinations, materials, and questions used.

Motion: While it would be defendants’ preference not to have the examination recorded, they have agreed to allow the recording, but have moved to compel the neuropsychological examination to be conducted pursuant to an order restricting the possession, custody, and dissemination of any audio-recording of the mental examination to only qualified and licensed neuropsychologists, and to no other person.

Current defense counsel has been unable to find any neuropsychologist willing to conduct the IME, if there are no restrictions placed on the dissemination of the audio recording of the examination. All of the neuropsychologists have articulated that there are significant ethical violations that would prevent them from audio-recording the entire examination. A limited number of them would be willing to conduct an examination which is audio-recorded only if dissemination of the recording is restricted to only licensed psychologists. Defendants state that they have exhausted all reasonable efforts to meet and confer to resolve the issue.

The basis of the neuropsychologists’ objection on ethical grounds is set forth in three neuropsychologist declarations (Drs. Kyle Boone, Ted Evans, and David Lechuga). Essentially, the field of neuropsychology is such that the validity of the test instruments is contingent upon the novelty of the test items, and it is crucial to a valid and informative examination that patients be naïve to the stimulus materials, tests procedures, task demands, and contents of the tests they are given. Test questions and test materials utilized are highly sensitive and copyright-protected, in that if the secrecy of the materials were compromised, subjects of the testing—who include, for example, police officers and airline pilots—could manipulate their results. Further, the effectiveness, validity, and utility of the materials would be forever compromised for any future use, to the detriment of society. There are only a limited number of standardized psychological and neuropsychological tests that are appropriate for any given purpose, and if their validity and utility is compromised, the purpose of the testing is defeated. Because of the considerable public harm posed by the general release of proprietary test information, several governing bodies of the neuropsychological field have adopted formal requirements and issued statements pertaining to the release of test-related materials. These include the California Board of Psychology, the American Psychological Association, and the National Academy of Neuropsychology.

The California Board of Psychology has imposed restrictions on psychologists in this state, including a prohibition on reproducing, describing tests, or providing access to anyone other than someone with a professional interest who would safeguard their use. The American Psychological Association’s ethical principles require psychologists to maintain the security of mental test instruments. Standards for Testing require security of test materials, and preclude distribution to unqualified users, i.e., individuals not trained and licensed to utilize the tests.

Each of the three neuropsychologists who provided declarations state that they would be willing to forward a copy of their own audio recording, but only to plaintiff’s retained and licensed psychologist expert. If dissemination of the recording to anyone other than plaintiff’s licensed psychological expert is required, they will not perform the testing, because they do not believe they can do so and maintain their ethical obligations. Plaintiff’s expert will be bound by the same ethical restrictions governing release of the testing materials to which they are bound; all ethical neuropsychologists are similarly obligated. Each has routinely encountered this situation over decades of experience, and has forwarded recordings to other licensed psychologist experts.

In the meet and confer efforts, defendants proposed that they would agree to plaintiff’s demand that the examination be audio-recorded if (a) the recording was transmitted only to plaintiff’s neuropsychological expert, and to no one else, (b) the recording would be destroyed or returned to the defense expert once the lawsuit is concluded, and (c) plaintiff provides the recording device, or allows the expert to record using his/her own device, and the recording is sent by certified mail to plaintiff’s neuropsychologist.

Plaintiff refused to agree to allow the defense effort to control the recording, and insisted that the recording must go both to plaintiff’s counsel and to the expert. Plaintiff’s counsel stated that he would maintain control over the recording, and at the conclusion of the case, would either return it to the defense expert or destroy it. He, then, would provide defense counsel and their expert with the full recording, but would not provide the recording device to the expert or allow the defense expert to record on their own device as the only recording.

Defendants responded that if they were forced to have the entire process audio-recorded, the recording could only be disclosed to, and held in custody by, another neuropsychological expert, and that there would be no prejudice to plaintiff if that occurred. Defendants also urged plaintiff’s counsel to consult with their own expert about this, and noted that they would agree to have their expert and plaintiff’s expert exchange raw data.

In response, plaintiff refused to budge, and stated: “To suggest that Plaintiff’s counsel, or Plaintiff would be unable to listen to the recording would defeat the purpose of the audiorecording. We believe we should be able to share the recording with the court, jurors or any other decider of fact to determine if the neuropsych [sic] expert was accurate in his/her reporting of the examination.”

Plaintiff has opposed the motion, and seeks $1,800 in sanctions against defendants and their counsel. Plaintiff argues at length that he was always willing to appear for the examination, and that the current motion consists of an improper motion for reconsideration of the court’s prior order that the examination can be audio-recorded and should on that basis be summarily denied. Plaintiff articulates that defendants’ previous ex parte application sought an order that plaintiff not be permitted to record the examination, citing ethical obligations, and contends that there are no new or different facts to permit the current motion. Plaintiff further asserts that defendants have cited no competent authority to override plaintiff’s statutory rights and the previous order of the court, citing statutory provisions only stating that discovery can include a mental examination, and that the court can restrict use of a discovery method if it is cumulative and obtainable from some other source, or unduly burdensome or expensive. The motion’s citation to Code of Civil Procedures section 2024.420(b) applies to depositions, not mental examinations.

Plaintiff contends that, despite no competent authority, defendants argue that possession and dissemination of any audio-recording should be restricted so that plaintiff and his counsel cannot have access to it. He asserts that this would be contrary to the statute which expressly authorizes an examinee’s right to record an examination, and also would be contrary to the main purpose for having the recording in the first place, i.e., ensuring that the examiner does not overstep the bounds for the examination, that the context of the responses can be judged for purposes of trial, that the examinee’s interests are protected, and that any evidence of abuse can be presented to the court, citing Golfland Entertainment Ctrs., Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750.

Plaintiff asserts that ensuring that an examiner does not overstep the bounds is a paramount concern in this case. Plaintiff contends that Dr. Ted Evans is routinely hired by defense counsel to dispute the extent of plaintiffs’ psychological injuries, and he usually finds a plaintiff is on the “hysterical” spectrum. Plaintiff contends that his counsel has reason to believe that Dr. Evans has changed examinees’ answers in the past, has directed examinees to go faster, and has scoffed at examinees. Plaintiff is concerned that his improper conduct will similarly be an issue in this case, that the testing results will be altered, and that he will have no way of knowing whether he is accurately quoted in the report. As a result plaintiff argues that “unrestricted access” to the tape is essential.

Plaintiff asserts that defendants would not be prejudiced from recording the examination, contending that it is sufficient that the tapes would be released to his attorneys, who have their own ethical and professional responsibilities to protect the confidentiality of their client’s mental examination. Defendants demanded that plaintiff provide recording equipment, but there is no authority to require that. Section 2032.530 makes clear that both the examiner and examinee may record the examination, if they so desire.

Plaintiff asserts that while the defendant has stated that they offered to pay for plaintiff’s travel from the Ukraine, he has no record of such. Since he has already traveled to the United States twice, and has no plans to return in the near future, he would appreciate defendants paying for air fare and accommodations for the examination.

Plaintiff seeks sanctions of $1,800, contending that there was no substantial justification for bringing a motion to compel attendance, when plaintiff was willing to comply with the court’s prior order, and defendants simply did not want to go forward because they disagree with that order.

In their reply, defendants emphasize that protective orders can be entered to protect trade secret or other confidential research, development, or commercial information not be disclosed or can be only disclosed to specified persons or in a specified way. The test materials are highly sensitive and copyright protected, and society obtains tremendous benefit from their secrecy being maintained. As a result, licensed psychologists are ethically bound to protect the materials’ security, and they will only allow a neuropsychological examination to be audio-recorded if it is only possessed and maintained by another licensed psychologist. Although plaintiff was invited to provide a declaration from his own neuropsychological expert to opine on the ethical issues, plaintiff did not do so.

Defendants further emphasized that there would be no prejudice to plaintiff from this requirement. Plaintiff and his attorney would still have full access to the entire audio-recording, including listening to the entire recording, as long as it is kept in the exclusive custody of their expert psychologist. They can still prepare their case and prepare cross-examination of the defense expert, since they can access the recording through their expert. There would be nothing stopping plaintiff from determining whether the defense expert was overstepping boundaries, or presenting evidence of abuse, since he could call his own expert to testify about the recording and all of those issues. Consequently, while there may be inconvenience for plaintiff, there is no prejudice. On the other hand, without the order, defendants will be completely deprived of the ability to have the neuropsychological IME, on a traumatic brain injury case, since the reality is that no ethical neuropsychologist will conduct the examination in the absence of the restriction upon the possession of the recording. Defendants agree to pay for plaintiff’s travel and hotel expenses for the examination.

ANALYSIS: The motion is granted; plaintiff’s opposition request for sanctions is denied. The parties shall agree on a date for the examination, and defendants shall pay plaintiff’s travel and hotel expenses for his trip from the Ukraine to the United States for the examination. All attorneys, experts, and any other persons who have access to the test and testing materials in any way, whether affiliated with plaintiff or with defendants, are subject to an order that the information not be discussed with or disclosed to any person not involved in the litigation, or for any purpose other than the litigation.

Plaintiff first contends that this is an unauthorized motion for reconsideration. The Court disagrees. While the Court had previously authorized the audio-taping of the examination, pursuant to the statutory authority set forth in Code of Civil Procedure section 2032.530, it was not presented with any issue regarding the manner in which that audio-tape could be disseminated and/or used. It was not until defendants were unable to find any neuropsychologist willing to perform an audiotaped examination wherein strict controls over the dissemination and custody of the audiotape were in place, that the issue became relevant. This was a new fact, which took the motion out of the realm of a motion for reconsideration, and it was absolutely proper for defendants to bring this issue before the court for resolution, when the parties were unable to come to an agreement.

Plaintiff also opposes the motion by contending that he has an absolute right to audio-tape the examination. That is true, but his right to audiotape the examination is not being infringed in any way. The examination will be audiotaped.

Plaintiff then contends that he has an absolute right to have unfettered access to the audio-tape, and that there is no authority to support imposition of any conditions upon that access. It is here that the Court strongly disagrees with plaintiff. The Court has both the statutory power to impose whatever protective orders limiting the scope of discovery are necessary to protect any involved party, person, or entity from harm, if it determines that the manner in which the discovery is proposed by any party to occur is intrusive in a manner which will cause harm. (See, e.g., Code Civ. Proc., §§ 2017.020 and 2019.030.)

Defendants submitted the declarations of three neuropsychologists, all of whom vehemently agreed that they could not ethically agree to perform an examination that was audio-recorded, unless the recording would be provided only to, and held in the custody of, another licensed expert subject to the same ethical obligations to protect the confidentiality and integrity of the testing questions and materials, explaining that tremendous harm to society would result should the information enter the common domain. Defendants invited plaintiff to consult with his own psychological expert, and to provide the Court with the opinion of such expert on the issue of the protection of the test information and the proper custody and protection of the audiotape. Plaintiff did not do so, and the Court is left only with the unanimous opinion of three esteemed professionals that the order requested by defendants is absolutely critical to their agreement to perform such an examination at all, and without it neither they nor any other ethical professional will agree to conduct any such examination.

The order may inconvenience plaintiff and his counsel in that, if they are unwilling to leave the evaluation of the nature and validity of the examination to their retained expert, they will be restricted to listening to and/or evaluating the examination only while the tape remains in the custody and control of their expert. However, in weighing that limited inconvenience with the deprivation to defendants of any neuropsychological examination of plaintiff’s traumatic brain injury claims, the Court has little trouble in resolving the issue in favor of permitting the examination to go forward under the ethical restraints without which the experts will not conduct the examination.

Defendants have stated that they will pay plaintiff’s expenses to travel from the Ukraine to the United States for the examination, and for his lodging expenses while he is here. That payment is part of the Court’s order allowing the examination to proceed; the arrangements should allow plaintiff sufficient time after arriving to allow him to be well-rested for the examination. The parties shall coordinate together to agree upon a date for the examination. Pursuant to Code of Civil Procedure section 2032.530, both parties may record the examination. However, the recording made on plaintiff’s behalf—whether separately from that by defendants, or whether receiving a copy of the recording made for defendants—must only be transferred directly from defendants’ expert to plaintiff’s expert in a manner that ensures that no other party has access to the audiotape prior to it reaching the custody and control of plaintiff’s expert. Defendants are subject to the same restrictions on access, custody, and control of the audiotape of the examination made on their behalf—no attorney, party, or other person to whom access to the audiotapes are provided as a necessary part of preparing for the trial of this action, shall be permitted to have custody or control of any examination audiotape, and shall be permitted access to such audiotape only through the licensed expert.

Because defendants acted with substantial justification in bringing this motion, and in fact succeeded in obtaining the order they required, plaintiff’s sanction request is denied.