Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Sean Carmean vs Martha Rodriguez et al
Case No: 18CV03763
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Motion: Compel Neuropsychological Exam; Motion to Continue Trial/Pre-Trial

Tentative Ruling: The court grants defendant LTK Home Care, Inc.’s application to compel the mental examination of plaintiff. Defendant’s proposed order is acceptable but must be modified to include conditions 1-8 and 10-12 at pages 3 and 4 of plaintiff’s opposition to the application. (Condition #9 is already included in the proposed order.)

Background: This action arises out of an automobile-motorcycle collision on December 22, 2017. Plaintiff Sean Carmean alleges that defendant Martha Rodriguez caused the collision. LTK Home Care, Inc., was Rodriguez’s employer at the time of the collision. Trial is set for January 10, 2020.

Motion: LTK applies for an order compelling a mental examination of plaintiff by psychologist Dr. Kyle Boone, Ph.D. Carmean opposes the application.

A party may obtain discovery by means of a mental examination of a party to the action if the mental condition of that party is in controversy in the action. CCP § 2032.020(a). There is no dispute that Carmean’s mental condition is in controversy in this action as he alleges that he continues to suffer from severe cognitive deficits and emotional injuries as a result of the collision.

1. Designation of Expert Witness: Carmean initially agreed to the examination by Dr. Boone but he proposed conditions. He apparently did not raise the issue of designation of an expert witness by LTK. It appears those discussions took place prior to the expert witness exchange. However, in opposing the application, he does raise the issue.

On October 21, 2019, Carmean served a demand for exchange of expert witness information with an exchange date of November 14. (LTK had served its demand for exchange of expert information on October 15 and Rodriguez had served hers on October 11.) Plaintiff and Rodriguez served expert witness designations on November 14. LTK did not designate any experts.

The issue before the court is not whether Dr. Boone can testify. Rather, it is whether LTK can conduct a mental examination. The purpose of discovery is to find information that “‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation]” Lipton v. Superior Court, 48 Cal.App.4th 1599, 1611-1612 (1996). The failure to designate Dr. Boone as an expert witness does not preclude the mental examination.

The court expresses no opinion as to whether a party who did not designate any experts can file a supplemental expert list under CCP § 2034.280(a). See, e.g., Fairfax v. Lords, 138 Cal.App.4th 1019, 1027 (2006); Du-All Safety, LLC v. Superior Court, 34 Cal.App.5th 485, 501 (2019).

2. Conditions for Examination: Other than the expert designation issue, Carmean does not contend that LTK is not entitled to a mental examination. Carmean wants certain conditions and to limit the type of tests Dr. Boone can administer.

The application anticipated Carmean’s insistence that a third person attend the examination to record it. In the list of conditions in his opposition to the application, Carmean only wants to record the examination, not to have anyone else present, which would be inappropriate. See generally Golfland Entertainment Centers, Inc. v. Superior Court, 108 Cal.App.4th 739, 747 (2003). Carmean may audio record the examination but no person may be present, other than Carmean, Dr. Boone, and a designated and identified assistant of Dr. Boone.

Conditions ##1-12 identified in Carmean’s opposition are standard and do not appear to be in controversy.

An order granting a mental examination must “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.” CCP § 2032.320(d). LTK lists 24 tests in its proposed order. LTK then adds: “Dr. Boone, unfortunately, will not know exactly which tests on this list she will administer until she starts testing Plaintiff. … Dr. Boone may administer all, or only a subset, of the tests listed above. Which tests are actually used will depend on Plaintiff’s preliminary testing results and Dr. Boone’s assessment as to of whether further testing in any particular areas of concern is warranted.”

Carmean objects to the suggestion that Dr. Boone may not administer all of the tests and demands that LTK indicate which tests will be administered. The court fails to see the prejudice if Dr. Boone does not administer all the tests on the list. A judge and lawyers are in no position to prejudge what psychological tests will be necessary in a mental examination. If Dr. Boone determines that one or more of the tests is not necessary, that is her prerogative. The only stipulation is that she not administer tests not on the list of 24 tests.

The most serious issue between the parties is whether the examination can include “performance validity tests.” Carmean objects to five of them: the Wechsler Memory Scale—III or IV, the Warrington Recognition Memory Test, the Rey-15 Item, the Dot Counting Test, and the Modified Somatic Perception Questionnaire. Carmean says these tests “are not generally accepted by neuropsychologists and have no medical validity and are therefore burdensome, harassing and unnecessary and do not apply to this case” and “these tests go beyond neuropsychological testing.” [Opposition 5:23-24; 6:7]

Carmean provides no evidence or authority to support these medical conclusions. Carmean’s counsel may be very familiar with neuropsychological testing but he is not an expert in the field and his conclusory statements in a memorandum carry no weight. The court will not limit the testing other than confining it to the 24 listed tests.

The court grants defendant LTK Home Care, Inc.’s application to compel the mental examination of plaintiff. Defendant’s proposed order is acceptable but must be modified to include conditions 1-8 and 10-12 at pages 3 and 4 of plaintiff’s opposition to the application. (Condition #9 is already included in the proposed order.)