2016-00189272-CU-PA

Cherilyn Lanni vs. California Montessori Project

Nature of Proceeding: Motion for Order Allowing Mental Examination

Filed By: Kilduff, Douglas M.

Defendant California Montessori Project’s (“Defendant”) motion to compel a psychiatric exam of Plaintiff Cherilyn Lanni (“Plaintiff”) is denied.

This is a personal injury action. Plaintiff alleges she was injured when she was rear-ended by defendant Sarah Templeton, who was an employee of Defendant at the time. Plaintiff seeks damages for (1) past and future physical and mental suffering, (2) loss of enjoyment of life, (3) physical impairment, (4) inconvenience, (5) anxiety, and

(6) emotional distress. (Compl. ¶8.) Plaintiff claims injury to various parts of her body, as well as memory loss, confusion, anxiety, irritability, inability to concentrate, insomnia, fatigue, sensitivity to light and noise, forgetfulness, mental fogginess, decreased cognitive ability and motor function, other post-concussion syndrome symptoms, and emotional distress. (Kilduff Decl. Ex. 3.) Plaintiff also takes two psychiatric medications. (Id.)

On June 19, 2017, Defendant served a demand for a neuropsychological evaluation with neuropsychologist, Dr. Ronald Roberts. (Kilduff Decl. Ex. 4.) The demand stated that the exam would include a psychological interview “including a history of injury with past and present complaints and treatment, psychosocial history, educational and vocational history, medical and psychiatric history, and legal history” and that the focus would be the alleged traumatic brain injury. (Id.) On July 19, 2017, Plaintiff responded to the demand, stating that she “agrees to this examination with the understanding that Defendant stipulates that this will be the only mental evaluation of Plaintiff under CCP 2032.310, et seq. Plaintiff will not agree to a further evaluation by a psychiatrist or psychologist or other mental health practitioner. Defendant has made their election by choosing a neuropsychologist.” (Id. Ex 6.) Dr. Roberts’ exam of Plaintiff occurred on September 13, 2017.

On June 6, 2018, Defendant’s counsel emailed Plaintiff’s counsel requesting that he voluntarily produce Plaintiff for a psychiatric examination. (Kilduff Decl. ¶8.) Plaintiff’s counsel declined, citing Plaintiff’s prior response that she would only agree to Dr. Roberts examination. (Id.) On June 11, 2018 Defendant propounded a Request for Mental Examination with Dr. Greene, a psychiatrist. (Kilduff Decl. Ex. 7.) On June 18, Plaintiff served an objection. (Id. Ex. 8.) This motion follows.

Defendant argues that good cause exists to compel a psychiatric examination of Plaintiff because Plaintiff has placed her psychiatric complaints at issue, including her anxiety and mental fogginess. Defendant argues it will be prejudiced if unable to have testimony from a psychiatrist regarding her Major Depressive Disorder, which Dr. Roberts opined might be the cause of her ongoing problems. Defendant also argues it is entitled to expert testimony on Plaintiff’s two psychiatric medications. Defendant contends that Plaintiff will not be prejudiced because she intends to introduce testimony from three mental health experts (a psychologist and two neuropsychologists), and because Plaintiff’s treating psychologist Dr. Solomon has testified that psychiatric treatment is “potentially” the next logical step in her treatment. (Kilduff Decl. Ex. 11 at 21:19-21.) Defendant contends it never intended to waive its right to seek a Court order for a second mental examination when it accepted Plaintiff’s assertion that Dr. Roberts would be the only mental examination conducted on Defendant’s behalf.

Plaintiff opposes the motion, arguing that Defendant has failed to show good cause to order a second mental examination. Plaintiff asserts she has already undergone an extensive, two-day mental examination by Dr. Roberts, who can provide testimony

regarding her psychologic and psychiatric needs, and thus any additional mental examination would be duplicative. She asserts that the two demands for mental examinations are almost identical, and thus there is no asserted need for a second examination. Plaintiff notes she has not been treated by a psychiatrist, nor will she be offering testimony from a psychiatrist at trial. Plaintiff further argues that Defendant’s motion is directly contrary to the agreement reached between counsel, and should be denied on this basis alone.

On reply, Defendant argues that a psychiatric examination would not be duplicative of the neuropsychological examination because the former evaluates mental illness while the latter evaluates brain injury. (Green Decl. ¶¶3-4, Ex. A.) Defendant argues that Dr. Roberts will be unable to opine on the relationship between Plaintiff’s psychiatric medications and the injury, which it argues will be prejudicial to its defense. Defendant further asserts that the purported stipulation to a single mental examination was a misunderstanding between the parties. (Kilduff Decl. ¶8.) Defendant’s counsel asserts that he understood the neuropsychology examination would be the only voluntary examination of Plaintiff, and that any further examinations would require a court order. (Id. ¶¶8-9.)

If any party desires to obtain discovery by a physical examination other than pursuant to Code Civ. Proc. § 2032.220 (i.e., the initial physical examination of personal injury plaintiff without a court order), that party must obtain leave of Court. (Code Civ. Proc. § 2032.310(a).) The Court may a grant a motion for a Court ordered examination only for good cause shown. (Code Civ. Proc. § 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.)

There is nothing in the language of Code Civ. Proc. §§ 2032.010 et seq. that expressly limits the number of mental or physical examinations. “Thus, for example, defendants, on a showing of good cause, may obtain multiple examinations of a personal injury plaintiff in addition to the initial physical examination that may be demanded without court order in such cases. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1256.) Depending on the injury alleged by the plaintiff, multiple examinations by medical specialists in different fields pertinent to a plaintiff’s injury may be appropriate. (Id. (dicta).)

As an initial matter, the Court does not find that Defendant waived its right to seek a second mental examination of Plaintiff. Defendant’s counsel reasonably understood their agreement to mean that Dr. Roberts was the only voluntary mental evaluation of Plaintiff, but that Defendant could still seek a Court order for a second mental evaluation. (Kilduff Decl. ¶8.) While Defendant could presume that Plaintiff would object to a second mental evaluation pursuant to their agreement, Defendant is within its rights to seek a Court order for the evaluation.

However, the Court finds that Defendant has failed to show good cause for a second mental examination. Defendant’s only asserted reasons for a psychiatric examination are (1) Plaintiff takes two psychiatric medications, (2) Plaintiff has Major Depressive Disorder, which may affect her ongoing symptoms, and (3) Plaintiff may in the future seek psychiatric treatment. However, Dr. Roberts has already conducted a lengthy psychological examination of Plaintiff and produced an extensive report regarding her psychological status, including her Major Depressive Disorder. (Kilduff Decl. Ex. 5.) As

a neuropsychologist, Dr. Roberts is qualified to opine on, and has produced a report on, Plaintiff’s mental health as it relates to her brain injury, including any mental disorders. (Id.)

Indeed, as Plaintiff notes, the demand for the psychiatric exam is nearly identical to the demand for the neuropsychological exam. The only truly non-duplicative testimony that Defendant asserts it could obtain from a psychiatrist is information regarding Plaintiff’s two psychiatric medications; specifically, whether Plaintiff actually needs the medications, and whether that need is related to her injury. The Court is not persuaded that this warrants a second mental examination. Plaintiff does not intend to introduce a psychiatrist at trial or seek psychiatric treatment, and there is no indication that those medications were even prescribed by a psychiatrist.

The Court further notes that the Court of Appeal in Shapira has explained: “multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations.” (Shapira, 224 Cal.App.3d at 1255.) The Shapira Court further cites a federal decision suggesting that a court should require a stronger showing of good cause for a second examination than for the first. (Id., citing Vopelak v. Williams (N.D.Ohio 1967) 42 F.R.D. 387, 389..)

In this instance, the Court finds that Defendant has failed to meet its burden to show good cause for a psychiatric exam. The motion is accordingly denied.