Destiny Hitchcock vs Sandra Castellino
Case No: 18CV04174
Hearing Date: Wed Oct 02, 2019 9:30

Nature of Proceedings: Compel Neuropsychological Exam

TENTATIVE RULING:

Unless at the hearing of this matter counsel for plaintiff Destiny Hitchcock clarifies her claims that Hitchcock seeks more than “garden variety” emotional distress damages, the court will assume its understanding as set forth herein is correct and the motion of defendant to compel plaintiff to submit to a neuropsychological examination will be denied. Counsel for the parties are required to appear in person or by telephone at the hearing of this motion.

Background:

On August 23, 2018, plaintiff Destiny Hitchcock filed her complaint in this action asserting causes of action arising out of claims that Hitchcock suffered carbon monoxide poisoning from a defective heater while a tenant at real property owned by defendant Sandra Castellino, individually and in her capacity as trustee of the Sandra Castellino Living Trust 1/29/15 (in all capacities, Castellino).

On September 20, 2018, Castellino filed her answer generally denying the allegations of the complaint and asserting three affirmative defenses.

On September 20, 2018, Castellino served form interrogatories on Hitchcock. (Motion, exhibit 1.) (Note: The interrogatories and responses attached to the motion are verified by proof of service; the responses to the interrogatories are also verified. There is, however, no reference to this discovery in the declaration attached to the motion. Moreover, the motion fails to provide electronic bookmarks in violation of Rules of Court, rule 3.1110(f)(4).)

In response to form interrogatory No. 6.2 (“Identify each injury you attribute to the INCIDENT and the area of your body affected.”), Hitchcock responded: “Headaches; fatigue; hearing loss tinnitus; degradation of visual acuity; random loss of consciousness; central nervous system damage; memory loss; vertigo; seizures; anxiety; flu-like symptoms and congestion.” (Motion, exhibits 1, 2.)

According to defendant, Hitchcock received neuropsychological care and treatment from Tiff Thompson, Ph.D. and Nicholas Dogris, Ph.D. of NeuroField Neurotherapy, Inc. (Borgeson decl., ¶ 4.) Hitchcock is scheduled to receive an FMRI and had a neuropsychological evaluation completed prior to receiving a referral for the FMRI. (Ibid.)

Hitchcock had an IME completed by neurologist Barry Ludwig, M.D. (Borgeson decl., ¶ 6.) It was Dr. Ludwig’s opinion that Hitchcock is mainly suffering from anxiety, which is within the purview of care of a psychologist. (Ibid.)

Hitchcock has not agreed to voluntarily submit to a neuropsychological evaluation and defendant makes this motion to compel such an examination by George K. Henry, Ph.D. (Borgeson decl., ¶¶ 5, 7.) The proposed examination will take eight hours. (Borgeson decl., ¶ 11.)

Hitchcock opposes the motion. Hitchcock states that she has been a patient of Robert Mathis, M.D., since 2007. (Hitchcock decl., ¶ 2.) Dr. Mathis has never provided psychological, psychiatric, or mental health counseling, or referred Hitchcock for psychological or psychiatric therapy or counseling. (Ibid.) Hitchcock has been a patient of Tiff Thompson, Ph.D., since 2018. (Hitchcock decl., ¶ 3.) Hitchcock was referred to Dr. Thompson by a nurse at Dr. Mathis’s office. (Ibid.) The only care/ treatment Hitchcock has received from Dr. Thompson has been limited to neurotherapy and hyperbaric oxygen therapy. (Ibid.) Dr. Thompson has not provided Hitchcock with psychological, psychiatric, or mental health therapy or counseling, and Hitchcock has not requested such. (Ibid.) Hitchcock does not recall ever having received any form of medical, psychological, or psychiatric care from Dr. Dogris. (Hitchcock decl., ¶ 4.)

Dr. Thompson states that he has never provided any neuropsychological, psychological, psychiatric, or mental health therapy/ counseling of any kind to Hitchcock. (Thompson decl., ¶ 3.) Dr. Thompson’s treatment of Hitchcock has been limited to neurotherapy and hyperbaric therapy. (Ibid.) Neurotherapy is a type of biofeedback that uses real-time displays of brain activity in an attempt to teach self-regulation of brain function. (Thompson decl., ¶ 4.) Common applications include stress relief, anxiety management, improving mood, and building emotional resilience. (Ibid.) Hyperbaric oxygen therapy involves exposing the body to 100 percent oxygen at a pressure greater than normal in order to speed up healing of carbon monoxide poisoning, gangrene, stubborn wounds, or infections in which tissues are starved for oxygen. (Thompson decl., ¶ 5.)

Analysis:

“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).)

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).) “If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” (Code Civ. Proc., § 2032.320, subd. (b).) “A stipulation by a party under this subdivision shall include both of the following:

“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.

“(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” (Code Civ. Proc., § 2032.320, subd. (c).)

Hitchcock has already undertaken a neurological IME. The stated reason for the request for this examination is Dr. Ludwig’s opinion that Hitchcock is mainly suffering from anxiety, which is within the purview of care of a psychologist. In response to this request, Hitchcock offered a stipulation as provided by section 2032.320, subdivision (c). (Richards decl., ¶ 2 & exhibit 1.) The stipulation was refused on the grounds that Hitchcock claims “brain injury,” whether there is “brain injury” and the scope of alleged cognitive deficiencies is disputed.

The difficulty in addressing this issue is that the parties’ respective discussions use language that is sufficiently ambiguous as to make it unclear precisely what type of claim is being made and to what extent the parties need expert evidence to address Hitchcock’s claims. There are two types of claims that could be made here: On the one hand, Hitchcock could be claiming that the carbon monoxide poisoning physically injured her brain which has resulted in a particularized loss of brain function. In support of this type of claim, Hitchcock would present expert evidence both as to the causation of the brain injury from the poisoning and as to the extent of loss of brain function, which loss is manifested in cognitive and other psychological ways. The former expert evidence would be encompassed within the neurological IME already performed. The latter expert evidence would be encompassed within the proposed neuropsychological examination.

On the other hand, Hitchcock could be claiming that the carbon monoxide poisoning physically injured her body, including her brain, and from which injury Hitchcock has suffered “garden variety” emotional distress. In support of this type of claim, Hitchcock would also present expert evidence as to the causation of injury from the poisoning, but Hitchcock would not present expert evidence as to the extent of the psychological damage she suffered. Hitchcock would instead provide her own testimony as to her symptoms (such as anxiety and forgetfulness) as evidence of her emotional distress arising from the bodily injury.

In the first situation, a neuropsychological examination would be proper because Hitchcock would be seeking damages for particular psychic injury that is beyond the “garden variety” of emotional distress damages. In the second situation, in conjunction with the section 2032.320, subdivision (c), stipulation, a neuropsychological examination would not be proper absent extraordinary circumstances. The record here does not show extraordinary circumstances.

The court understands from Hitchcock’s opposition and from the proffered stipulation that Hitchcock seeks only “garden variety” emotional distress damages and does not intend to present expert testimony regarding this claim for damages. By this understanding, the court infers that Hitchcock intends to limit her claim for emotional distress as discussed in the second situation. Hitchcock would not present expert testimony regarding the extent of her psychological damages (but would, as discussed, still be free to address physical damages and causation, absent other reasons to exclude such evidence). Assuming this understanding and inference is correct, the court finds that Castellino has not met her burden to show good cause for the examination sought and will deny the motion.

To the extent that the court’s understanding is incorrect, then Hitchcock must identify to the court and to defendant that Hitchcock intents to present expert evidence and to claim damages based upon psychological injury beyond the “garden variety.” In such instance, the examination sought is proper because good cause would thereby be shown and the proffered stipulation would not be intended to limit the claims and evidence Hitchcock seeks to present at trial. If Hitchcock makes such a clarification, then the motion would be granted.

In either case, the court finds that the circumstances here do not warrant the imposition of sanctions and the court will deny all requests for sanctions.