2016-00200595-CU-PA

Julian Saavedra vs. Jennifer Fishbaugh

Nature of Proceeding: Motion to Compel further Neuropsychiatric Testing

Filed By: Blakemore, William K.

Defendant Helena Chemical Company’s motion to compel Plaintiff Julian Saavedra to submit to a further [limited] neuropsychiatric testing is granted.

On June 4, 2018, this Court granted Defendant’s ex parte application for an OST setting the matter on today’s calendar. Opposition was to be filed by June 11, 2018. The opposition was filed on June 12, 2018. Nonetheless it has been considered.

In this personal injury action Plaintiff seeks damages sustained as a result of being thrown from his motorcycle in a collision with a vehicle driven by Defendant’s employee. Plaintiffs has made complaints regarding depression, anxiety and memory loss. After an unsuccessful mediation on March 17, 2018, the parties began

discussing medical and psychiatric examinations. An orthopedic examination of Plaintiff proceeded on May 7, 2018.

On April 11, 2018, Defendant served a demand for a neuropsychiatric examination with Howard Friedman, Ph.D., ABPP, who is Board Certified in Clinical Neuropsychology. The demand indicated that the Minnesota Multiphasic Personality Inventory-2-RF (“MMPI”) test was among the tests to be administered. On April 20, 2018, Plaintiff’s counsel sent Defendant’s counsel a copy of neuropsychiatric testing and report prepared by Plaintiff’s expert. Defendant then sent a revised list of tests to be performed at the examination, though the revised list still included the MMPI. Plaintiff’s May 21, 2018, response to the revised demand indicated that Plaintiff would comply with the demand subject to the condition that no personality test be administered.

Thereafter Defendant’s counsel met and conferred with Plaintiff’s counsel on the personality test issue. Defense counsel noted that Plaintiff’s expert conducted 5 personality tests and that fairness required that the defense be permitted to conduct similar personality tests. Plaintiff’s counsel responded that he saw no reason to repeat the Personality Assessment Inventory (“PAI”) as the data was still valid and that the “others are agreeable if that is it.” Defendant’s counsel responded that Dr. Friedman would not be using the “PAI test so the 5/25 exam/testing is confirmed.” At the exam, Plaintiff and his representative advised Dr. Friedman that Plaintiff would not take either the PAI or the MMPI. No medical justification for this refusal was provided. Nonetheless, Defense counsel was advised of this recalcitrance and immediately contacted Plaintiff’s counsel seeking to resolve the matter so that the testing could be completed. Plaintiff’s counsel stated in an email that “[t]he list I was agreeing to were [sic] the ones in the email that Angelone did. I said it was to repeat those but not the PAI. The same would be true for the MMPI. There is no valid reason to repeat the test within a short time. Did my client take the MMPI with Angelone?” The neuropsychiatric examination was completed without the MMPI being administered. Defendant counsel emailed Plaintiff’s counsel on May 29, 2018 stating that there never was an objection to any test other than the PAI and requesting confirmation that Plaintiff would be produced to take the MMPI. Plaintiff’s counsel never responded.

Section 2032.310 requires a party seeking a mental examination to obtain leave of court. The motion shall be granted upon a showing of good cause. (CCP § 2032.320

(a).) Good cause requires the moving party to show both relevance to the subject matter of the lawsuit and specific facts justifying the discovery. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Indeed, as a general rule, “good cause” includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes. (See Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal. 4th 93, 107-108.) In determining the meaning of “good cause” in a particular context, the courts utilize common sense based upon the totality of the circumstances. Those circumstances include the purpose of the underlying statutory scheme. There is no dispute that Plaintiff has placed his mental condition at issue. Indeed, Plaintiff submitted to the neuropsychiatric examination on May 25, 2018 and only refused to take the MMPI, which is universally recognized as a standardized psychometric test of adult personality and psychopathology.

Plaintiff argues that a further examination is not permitted because he complied with his agreement to appear for the neuropsychiatric examination, never agreed to a

personality exam and even allowed the exam to proceed for 8.5 hours even though it was scheduled for 8. Plaintiff’s agreement to appear for a neurophysiological examination stated that it was limited to a “clinical interview and neurocognitive testing specifically related to the brain injury which Plaintiff has placed in controversy” and that “there will be no personality tests administered.” (McElroy Exh. B.)

It must be pointed out that the parties’ meet and confer correspondence leave the impression that Plaintiff did not object to the MMPI. As noted above, while the initial response to Defendant’s revised demand which specifically included the MMPI, indicated that Plaintiff objected to the administration of any personality tests, Plaintiff’s counsel’s response to Defendant’s counsel’s meet and confer efforts on that point only stated that he saw no reason to repeat the PAI that Plaintiff’s expert administered but that “the others are agreeable if that is it.” Defendant’s counsel then confirmed that the PAI would not be administered and confirmed the May 25 testing. It was only at the May 25 test date that Plaintiff indicated that he would not take the MMPI.

Defendant’s expert indicates that the MMPI is a standardized psychological test and generally the most commonly used test in forensic neuropsychiatry. (Friedman Decl. ¶ 4.) He also indicates that it is twice as common as the PAI. (Id.) The expert states that the MMPI is not timed but generally takes about one hour to complete. (Id. ¶ 7.) Indeed, Defendant’s expert indicates that the MMPI is helpful in determining whether someone is exaggerating symptoms. (Friedman Decl. ¶ 4.)

Here, an order requiring Plaintiff to attend a further neuropsychiatric examination to allow Dr. Friedman to administer the MMPI is appropriate. Indeed, based on counsel’s meet and confer correspondence it appeared that Plaintiff only objected to Dr. Friedman administering the PAI and did not have an objection to an MMPI. Further, the MMPI is a common personality test and Defendant should be permitted to administer its own personality tests as a matter of fundamental fairness and not simply rely upon those administered by Plaintiff’s own expert. Moreover, the court is presented with no authority that the plaintiff can pick and choose among tests to be administered by the defense experts on a neuropsychiatric examination, absent evidence of physical or mental harm to the patient.

As a result, the motion is granted.

The scope of the further mental examination of plaintiff is: The further psychological examination with Dr. Friedman will consist solely of the MMPI and will require approximately one hour. Dr. Friedman is only available to travel to Sacramento (which is within 75 miles of Plaintiff’s residence) on June 19, 2018 and July 9, 2018. The examination will take place at 3 p.m. at Regus Office Suite, Esquire Plaza, 1215 K Street, 17th Floor, Sacramento, CA, the same location as the original examination on either June 19 or July 9, 2018. The parties shall meet and confer on a specific date.

To the extent that the examination can only take place after discovery has closed, the Court grants Defendant’s request for an order reopening discovery for the limited purposes of completing the further examination.

Defendant’s request for sanctions is denied as the Court concludes that sanctions would be unjust under the circumstances.

Defendant shall prepare for the Court’s signature and order pursuant to CCP §

2032.320(d) and CRC 3.1312.