2016-00202471-CU-PA

Manjot Batth vs. Nicholas Anaya

Nature of Proceeding: Motion to Compel Manjot Batth to Attend Independent Pyschological

Filed By: Vandersluys, Marissa L.

Defendants Nicholas Anaya, Brian Birmingham, and Cindy Birmingham’s (“Defendants”) Motion for an Order Compelling Plaintiff Manjot Batth to Attend Independent Psychological Examination is GRANTED as follows.

The Court, in its discretion, has considered Plaintiff’s Separate Statement in Opposition, which was filed one day late on January 11, 2019. No prejudice has been shown. Plaintiff timely filed her opposition brief and other supporting documents on January 9, 2019, and Defendants timely filed a reply on January 16, 2019.

Background

This action arises out of a motor vehicle accident that occurred on February 27, 2015, in Sacramento, California. Plaintiff alleges she suffered personal injuries when she was rear-ended by Defendant Nicholas Anaya. Plaintiff claims physical and psychological injuries, including post-traumatic stress disorder (“PTSD”) and depression. She also attributes the need for an emotional support dog to the accident.

To evaluate Plaintiff’s claimed injuries, Defendants served Plaintiff with a Demand for Independent Psychological Examination (“IPE”) on July 5, 2018, to be conducted by neuropsychologist Elliott Henderson, Ph.D., on December 21, 2018. In the Demand, Defendants stated the diagnostic testing to be conducted, which included a clinical examination, patient history, interview, partial Wais IV, Beck depression Inventory, Hamilton Anxiety Scale, and MMPI-2. Plaintiff sent objections to the Demand on July 25, 2018, objecting that a court order is needed for an IPE and on the grounds that Plaintiff did not believe the identified tests reasonably correlate to her condition and that the tests unduly invade her privacy.

On August 2, 2018, Defendants sent Plaintiff a meet and confer letter regarding her objections and requested that if she wanted to withdraw her psychological injury claims, that she provide a signed stipulation pursuant to Code of Civil Procedure (“CCP”) section 2032.320(c). Absent a stipulation, Defendants stated they would move to compel the IPE.

On November 8, 2018, Defendants sent Plaintiff another meet and confer letter, which enclosed correspondence from Dr. Henderson explaining the MMPI-2RF test and why

he opines it is necessary to clinically evaluate Plaintiff’s claimed injuries.

On December 5, 2018, Defendants sent Plaintiff an additional meet and confer letter asking for a response as to whether or not Plaintiff would attend the IPE as scheduled. Plaintiff responded that same day via e-mail, stating she would agree to an open mental exam but not administration of the MMPI-2RF test.

On December 6, 2018, Defendants reiterated their position that all testing recommended by Dr. Henderson is necessary to obtain a complete clinical evaluation of Plaintiff’s alleged injuries. That same day, Plaintiff replied stating she but stood by her objection to the MMPI-2RF test. Later on December 6, 2018, Defendants notified Plaintiff they were proceeding via an ex parte application to obtain an order compelling Plaintiff’s attendance and participation with the IPE as scheduled. At the December 13, 2018 ex parte hearing, the parties reported to the Court they had resolved their dispute, agreeing the IPE would proceed without the MMPI-2RF.

Defendants now state they did not understand the importance of the MMPI-2RF at the December 13, 2018 ex parte hearing, and that Dr. Henderson has since advised Defendants he does not believe he can conclusively evaluate Plaintiff without administering said test. Defendants notified Plaintiff of Dr. Henderson’s opinion and the scheduling of another ex parte hearing on December 17, 2018, for an order shortening time to hear a motion to compel an IPE including administration of the MMPI-2RF.

On December 17, 2018, the Court denied the ex parte application without prejudice, holding “there is no ‘emergency’ justifying ex parte relief.” The Court stated: “Defendants may make a duly noticed motion, so that full briefing may be held and a ruling issued by the Court.” (Minute Order, Dec. 17, 2018, ROA # 58.) The instant motion followed.

Discussion

Defendants move for an order compelling Plaintiff to attend, comply with, and participate in all testing, including the MMPI-2RF test, at an IPE to be performed by Dr. Henderson in Sacramento on February 4, 2019. Defendants further move for an order compelling Plaintiff to travel from Puerto Rico, where she is pursuing post-graduate medical studies, pursuant to Code of Civil Procedure section 2032.320, subdivision

(e). Defendants state they are agreeable to paying the reasonable cost of airfare travel for Plaintiff to attend the IPE. (Defs.’ Am. Not. of Mot. to Compel IPE 3:4-7.)

Defendants argue good cause for the IPE exists “in that Defendant[s] ha[ve] been advised by [Dr. Henderson] as to the importance and objectivity of the MMPI-2RF test and his belief that he would be unable to obtain conclusive findings from an examination of Plaintiff absent such test.” (Defs.’ Am. Not. of Mot. to Compel IPE 2:4-8.)

In support of the motion, Defendants filed a declaration by Dr. Henderson. He avers in part:

“4. I have been a licensed psychologist for approximately 30 years and have assessed and treated over 5,000 patients. My main focus is assessing and treating workers in traumatic events and serious motor

vehicle accidents. Over my career I have attended numerous seminars by highly trained professional[s] in applying the MMPI-2RF test. I have attended approximately four seminars with Yossef Ben-Porath in the past four years, specifically regarding the MMPI- 2RF test.

5. The MMPI-2RF test . . . was formulated as the next evolution of the MMPI exam and is distributed by Pearson Publishing. The MMPI-2RF test reduced the amount of questions to approximately 343 from the previous MMPI test that consisted of 540 questions. The MMPI- 2RF also changed the statistical structure of the exam to include a criterion key. This allows for a more precise analytical finding, that can produce objective results in testing a patient for PTSD symptoms.

6. The MMPI-2RF looks specifically at PTSD symptoms, the extent of those symptoms, and the severity of the condition. Licensed medical professionals are then able to use the data obtained from the MMPI-2RF test against a normal control group. Normal in terms of the MMPI-2RF test means that the normal group consists of people who have been diagnosed with PTSD and PTSD symptoms. It is estimated that approximately 14% of the United States population have been diagnosed with PTSD from a traumatic event. When compared to that statistic, the normal group used in the MMPI-2RF is comprised of those who fall into that 14% category. Defining the test results, when compared to this normal control group allows a licensed medical professional to assess the patient in relation to persons that have experienced a traumatic event. This is the only test that allows us to make such correlation and thus provide an objective finding of the patient’s symptoms.

7. The MMPI-2RF test also differentiates itself from other tests as it discriminates against response-style answers, and uses multiple scales, to allow me to assess the patient’s answers to the exam in an objective way. The MMPI-2RF test is not a personality test, but a conglomeration of various scales (ranging from anxiety to depression) and allows the licensed medical physician to identify what relevant scales the test patient falls under. PTSD is a bimodal disorder, and the nature of such disorder makes it difficult to assess a patient’s reported symptoms of PTSD without the use of the MMPI-2RF test.

8. The partial Wais IV, Beck depression inventory, and Hamilton Anxiety test are all subjective tests. There is room for inconclusive findings and when used without the MMPI-2RF test [sic], and thus I am unable to conclusively assess the extent and nature of a PTSD claim.

The five tests listed in the Demand for Independent Psychological Examination also exclusively test for depression and anxiety and do not take into account the remaining factors that are exclusive in PTSD symptoms.

9. I do not believe that I can conclusively assess the Plaintiff in this case without administering the MMPI-2RF test.

10. I am in possession of a copy of the MMPI-2RF Manual for Administering, Scoring, and Interpretation, copyrighted by Pearson Publishing in 2008, 2011. The Manual contains a section titled, ‘Litigation-Related Demand for Disclosure of Copyright- and trade-Secret-Protected Test Materials distributed by Pearson’.

11. The Manual specifically states that the psychological and diagnostic testing materials distributed by Pearson are protected by copyright and trade secret law. It further states that it is rare that attorneys possess qualifications required to obtain, administer, or interpret restricted test[s], such as the MMPI-2RF. The publisher further warns that disclosing the test materials would compromise the objectivity or fairness of the testing process and may not be disclosed to anyone including the subject of the test.

12. I believe that it would be an ethical violation to disclose the MMPI-2RF test for the review in litigation. In the practice of psychology, psychologists are restricted to release test records to solely to another licensed medical professional. I further believe that I would violate the copyright provision in said Manual which prohibits my own use of the manual outside of administering the MMPI-2RF test.”

(Henderson Decl. ISO Defs.’ Mot. to Compel IPE ¶¶ 4-12.)

Plaintiff opposes the motion, rejoining Defendants have not shown good cause for conducting an IPE (generally) prior to her return to California in late May at the conclusion of her school year and administration of the MMPI-2RF test (specifically) at any time. Plaintiff states she “is currently taking 18.5 units in pursuit of her graduate degree, and attending an examination in Sacramento during her studies would be tremendously detrimental, not to mention the hardship of a 12-14 hour flight each way. (Pl.’s Opp’n 11:13-16.)

Plaintiff argues concerning the MMPI-2RF:

“Defendant’s assertion that the MMPI-2RF is not a personality test is not credible. [Citation.] The MMPI-2RF, an acronym for the ‘Minnesota Multiphasic Personality Inventory-2-Restructured Form’ probes a person’s

character. [Citations.] . . .The screening tools are all about pathology, such as ‘antisocial behavior,’ ‘aggression,’ ‘family problems,’ ‘malaise,’ ‘neuroticism,’. . . . [Citation.]

Lest we be confused, the MMPI-2RF is NOT a screening tool for PTSD. That is why in his declaration. Dr. Henderson is careful to talk about PTSD ‘symptoms’. [Citation.] [A]nd although it has a ‘litigant’ comparison group; it has no PTSD comparison group. The scales look at anxiety in the ‘Somatic/Cognitive an Internalizing’ scales, but not PTSD.

. . . .

The MMPI-2RF is not listed with the National Center for PTSD (hereinafter NCFPTSD) as an assessment tool for PTSD. The NCFPTSD says the CAPS-5 is the appropriate tool: ‘the CAPS is the gold standard in PTSD assessment.’ [Citations.] . . . .

The mental exam requested by Defendant does not meet the requirements for Civ. Proc. Code § 2032.220 to the extent that Defendant has failed to demonstrate good cause for the examination. The proposed MMPI-2RF . . . is an examination designed to probe a person’s character (e.g., personality). It is not a diagnostic tool for PTSD or depression. Plaintiff has not put her character, or personality at issue, and thus defendant has failed to show the relevance of this particular examination.”

(Pl.’s Opp’n 4:12–6:14.) Plaintiff also raises privacy concerns, stating:

“The [MMPI-2RF] involves questions relating to sex, religion, truthfulness (argumentative), and other zones of privacy not placed in issue by plaintiff’s lawsuit. . . .

. . . .

[Such questions] are intrusive, unwarranted, and violate a person’s personal privacy. . . .

. . . .

Plaintiff is entitled to have these issues resolved prior to the court determining that the MMPI-2RF is an appropriate test in this case. Defendant’s refusal to allow the court to review the questions and address plaintiff’s privacy concerns precludes a finding of good cause.”

(Pl.’s Opp’n 6:17-10:27.) In support of her privacy argument, Plaintiff cites what she claims are the first 75 questions on the MMPI-2RF test. Said questions (apparently

calling for a yes or no response) include the following: “My sex life is satisfactory”; “Everything is turning out just like the prophets of the Bible said it would”; and “I am very strongly attracted by members of my own sex.” (Pl.’s Opp’n 7:8-10:5; see also Caramagno Decl. ISO Opp’n ¶ 2.)

In reply, Defendants argue that although sympathetic to Plaintiff’s education, “the location of the IME is well within the statutory requirements” as Plaintiff is a resident of San Joaquin County, and “Defendants agree to pay the expense of airfare travel to the examination.” (Defs.’ Reply 4:6-11.) Defendants further reply:

“Plaintiff presents the CAPS-5 test as an alternative test in her Opposition Papers. She cites that the National Center for PTSD reports this test as the ‘gold standard in PTSD assessment’. Upon research of this test, it was found that the National Center for PTSD is a division of the United States Department of Veteran Affairs. Further search produced information that the CAPS-5 test was developed by the staff of the U.S. Department of Veterans Affairs National Center for PTSD. It is thus a self-proclaimed ‘gold standard’ in PTSD assessment. There is no other organization that gives this test such rating. Beyond Plaintiff’s assertion that the CAPS-5 test is superior to the MMPI-2RF, she provides no further evidentiary support of this contention. [Citation.]

The main disadvantage of the CAPS-5 test is that it has higher content and construct validity for PTSD. It requires additional training to become proficient in its administration and scoring. It further yields two scores that need to be combined to yield an overall index of the intensity of the PTSD symptoms. The MMPI-2RF, on the other hand, is one of the oldest and most widely used psychological assessment instruments. The MMPI-2RF assesses the wide range of problems typically seen in the clinical presentation of PTSD and provides sophisticated methods for detecting malingering and other types of response bias. The use of the MMPI-2RF is broader in scope and assesses other disorders. Plaintiff is not being solely assessed for PTSD, but also for other conditions, which she herself claims are attributable to the collision. Consequently, the MMPI-2RF is more appropriate. [Citation.]

As is provided in Plaintiff’s Opposition Papers, . . . there is a discussion on ‘MMPI-2RF: Use in Trauma and Stressor-Related Disorders’. Plaintiff’s Exhibit provides that

the MMPI-2RF is frequently used as part of a comprehensive evaluation of trauma-exposed individuals to aid in diagnostic formulation and treatment planning. While Plaintiff distracts the Court with her discussion of the other uses of the MMPI-2RF test not applicable to the instant action, it cannot be argued that the MMPI-2RF test is not used to evaluate PTSD and trauma related symptoms.

(Id. at 5:3-6:6 [footnotes omitted].)

“Civil discovery by physical and mental examination is governed by [Code of Civil Procedure (“CCP”)] sections 2032.010 through 2032.650. As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Super. Ct. (2006) 141 Cal.App.4th 249, 258 [citing CCP § 2032.020, subd. (a); § 2032.310].)

“If, as here, the defendant wants to obtain discovery by a mental examination . . . , the defendant must obtain leave of court. [Citation.] The motion for a mental examination .

. . ‘shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” (Id. at 259 [citing CCP § 2032.310, subd. (b)].)

“Section 2032.320 governs the order granting a motion for a mental examination. To protect the plaintiff’s privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause. [Citations.]” (Ibid.) It is, of course, axiomatic that a finding of good cause must be premised upon the following: (1) relevance to the subject matter of the litigation; and (2) facts justifying the discovery. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 840.) Pursuant to Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 587-588, good cause is also shown where facts demonstrate that discovery of the plaintiff’s mental condition is necessary for effective trial preparation and/or to prevent surprise at trial.

“In addition, and ostensibly for the same purpose, the court in its order must set forth certain details of the examination: ‘An order granting a . . . mental examination shall 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.’” (Carpenter, supra, 141 Cal.App.4th at 259 [quoting CCP § 2032.320, subd. (d)].)

Insisting that the diagnostic tests and procedures be specified results “in an orderly and efficient means of balancing the interests of the plaintiff and defendant.” ( Carpenter, supra, 141 Cal.App.4th at 267.) “The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers. The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and

argument to that effect if necessary.” (Ibid.) “If the parties cannot agree on the specific tests that may be employed, the matter will be resolved by the court in deciding the defendant’s section 2032.310 motion.” (Ibid.)

Here, it is undisputed that Plaintiff has squarely placed her mental condition at issue, as evidenced by the allegations in her pleading and responses to discovery. The contested issues to be decided are whether she should be required to travel to Sacramento for an IPE during her graduate studies and whether the IPE should include administration of the MMPI-2RF. The Court decides both questions in the affirmative.

First, the Court finds good cause to order Plaintiff to travel to Sacramento for the IPE as scheduled on February 4, 2019 [a Monday]. Plaintiff indicates her spring semester runs until May 25, 2018. Trial is scheduled to commence three days later on May 28, 2018. It would be impossible for Defendants to obtain an IPE and prepare for trial if they had to wait until the conclusion of her spring semester. Further, Plaintiff’s discovery responses state she resides in Lodi, California, and Defendants have agreed to pay the reasonable expense of roundtrip airfare from Puerto Rico to Sacramento. Under the circumstances, the Court finds good cause to require Plaintiff to travel.

However, the Court notes that should another date be preferable to accommodate Plaintiff’s school schedule, the parties may meet and confer to select an alternative date. For example, Plaintiff may have a mid-semester break or other school holiday that would allow her to be examined without missing classes. Or the parties could discuss moving to continue the trial date to allow Plaintiff to be examined at the conclusion of her spring semester. Absent such an agreement, however, Plaintiff is required to attend the IPE as scheduled, with Defendants to pay the reasonable cost of Plaintiff’s airfare.

Second, the Court finds Defendants have shown good cause for the IPE to include the MMPI-2RF in light of Dr. Henderson’s declaration, including his opinion that the test is necessary for him to conclusively assess Plaintiff. Although Plaintiff disagrees, she has not refuted his opinion with that of another psychologist or other expert. (See Carpenter, supra, 141 Cal.App.4th at 267 [“The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate . . . and submit evidence and argument to that effect if necessary.”].) Here, Plaintiff’s opposition consisted primarily of argument and reference to cases decided in inapposite contexts.

Finally, Plaintiff has not shown her privacy interests will be unduly invaded by administration of the MMPI-2RF. Although Plaintiff claims the 75 test questions included in her opposition come from the MMPI-2RF, her attorney does not state their source. She avers: “In internet searches I conducted it was indicated that the MMPI 2RF consists of 338 questions. I was not able to obtain the specific questions on the MMPI 2RF, but [I] included in my [opposition] what I found, which was indicated to be the first 75 questions on the MMPI 2.” (Caramagno Decl. ISO Opp’n ¶ 2.) Absent a citation to their source, the Court questions the accuracy of the referenced questions, especially in light of Dr. Henderson’s averments that the MMPI-2RF testing materials are protected by copyright and trade secret law. (Henderson Decl. ¶ 11.) The Court of Appeal commented on the protected nature of the original MMPI in Carpenter, stating “the actual test questions are a carefully guarded secret among the publishers and examiners . . . .” (Carpenter, supra, 141 Cal.App.4th at 268.)

For the stated reasons, Defendants’ Motion to Compel is GRANTED. The court finds it is unnecessary to review a copy of the actual test based upon the record. (See Carpenter, supra, 141 Cal.App.4th at 268-269 [“For a party to argue whether the test should be administered, it may not be necessary to give the court a copy of the actual test.”].)

Sanctions are denied.

Defendants shall prepare a formal order for the Court’s signature consistent with the foregoing and the requirements of CCP section 2032.320, subdivision (d).