Tentative Ruling

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

PROBATE
Michael Hines et al vs Nancy Hoolahan
Case No: 18CV00941
Hearing Date: Fri Nov 08, 2019 9:30

Nature of Proceedings: Motion: Compel Testing Material and Raw Data from Expert Witness

TENTATIVE RULING:

For the reasons set forth herein, the motion of plaintiffs to compel production of testing materials and data is denied as framed, but subject to the requirement that such testing materials and data are to be produced directly to plaintiffs’ designated expert for use in this case only. Such testing materials and data are not required to be disclosed by Dr. Stenquist to counsel.

Background:

This is an action arising from an automobile versus pedestrian accident in which, among other things, plaintiff Michael Hines claims damages from a traumatic brain injury.

Philip K. Stenquist, Ph.D., ABCN, a psychologist, was retained by counsel for defendant Nancy Hoolahan to review records and to examine Michael Hines. (Stenquist decl., ¶ 3.) On May 21, 2019, defendant served a demand for a neuropsychological examination. (Salehi decl., ¶ 2 & exhibit A.) (Note: Neither party has included electronic bookmarks for exhibits as required by Rules of Court, rule 3.1110(f)(4).) In response to the demand, plaintiff served an objection and demand for production of reports pursuant to Code of Civil Procedure section 2032.610, including test materials. (Salehi decl., ¶ 3 & exhibit B.)

On June 25, 2019, Dr. Stenquist performed an independent neuropsychological examination on Hines. (Stenquist decl., ¶ 4.)

Although Dr. Stenquist’s report was produced, the test materials were not produced. (Salehi decl., ¶ 3; Pham decl., ¶ 10.)

On October 16, 2019, plaintiffs filed this motion to compel production of the test materials. The test materials are also demanded as part of the deposition notice for Dr. Stenquist. (Salehi decl., ¶ 4 & exhibit C.)

Defendant opposes the motion on the grounds that ethical obligations imposed on psychologists prevent disclosure of test materials other than to other licensed psychologists.

Analysis:

“If a party submits to, or produces another for, a physical or mental examination in compliance with a demand under Article 2 (commencing with Section 2032.210), an order of court under Article 3 (commencing with Section 2032.310), or an agreement under Section 2016.030, that party has the option of making a written demand that the party at whose instance the examination was made deliver both of the following to the demanding party:

“(1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.

“(2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner.” (Code Civ. Proc., § 2032.610, subd. (a).) “If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.” (Code Civ. Proc., § 2032.610, subd. (b).)

Two issues are presented with this motion. The first is whether, under the demand provided in section 2032.610, subdivision (a), test materials are among the materials that must be disclosed. The second is whether, notwithstanding any requirement to disclose under section 2032.610, subdivision (a), an examining psychologist may be required to disclose confidential testing materials.

As to the first question, the court in Roe v. Superior Court (2015) 243 Cal.App.4th 138, 149 (Roe) implied that section 2032.610 did not require the disclosure of confidential test materials. At issue in Roe was a trial court order which orders the plaintiff in a child sexual abuse case to submit to an independent mental examination but which did not, over plaintiff’s objection, order delivery of the test materials and the plaintiff’s answers. (Id. at p. 141.) As here, the plaintiff provided a written demand under section 2032.610 for reports and test materials. (Id. at p. 146.) On writ review, the plaintiff argued that the language of section 2032.610, subdivision (a)(1), required the production of the test materials. (Id. at p. 147.) The Roe court stated that the plaintiff had failed to establish such a requirement and had failed to show that there was no adequate remedy by requesting a further order from the trial court. (Id. at p. 149.) The appellate court thus concluded that no writ relief was warranted. (Ibid.)

The decision in Roe implies that written test materials are not within the scope of section 2032.610, subdivision (a), but does not so hold. The holding is necessarily limited by the court’s determination that the plaintiff could seek a further order from the trial court if the reports did not satisfy the subdivision (a) requirement. Presumably, the extent to which test materials and the plaintiff’s answers would or would not fall within the subdivision (a) requirement could depend upon the substantive content of the report. Based upon Roe’s analysis, it does not appear from the evidence and argument presented here that section 2032.610, subdivision (a), requires the production of test materials or test answers.

Thus, the second question presents the broader issue of whether disclosure is appropriate under the circumstances here regardless of whether the test materials fall within the disclosure required by section 2032.610, subdivision (a). The test materials here are highly confidential to protect the integrity of the specialized tests. (Stenquist decl., ¶¶ 6-7.) Maintaining test security is of such a high concern in the psychological profession that maintaining security is mandated by the American Psychological Association Ethics Code (2002) (Stenquist decl., ¶ 5 & exhibit A) and by California law: “A psychologist shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.” (Cal. Code Regs., tit. 16, § 1396.3.) This same requirement is applied by statute also to licensed marriage and family therapists (Bus. & Prof. Code, § 4982, subd. (q)) and to social workers (Bus. & Prof. Code, § 4992.3, subd. (r)).

Consistent with Dr. Stenquist’s assertions of his ethical obligations, Dr. Stenquist does not object to releasing the raw data to plaintiff’s designated expert, Jeffrey Schaeffer, Ph.D., a licensed clinical psychologist. (Stenquist decl., ¶ 8.) Plaintiffs argue, on the other hand, that a failure to provide plaintiffs’ counsel with the raw data would impede and prejudice counsel’s ability to depose Dr. Stenquist on his opinions.

Under the evidence and arguments presented here, the court does not find that the raw data is required to be provided to plaintiffs’ counsel rather than to plaintiffs’ qualified expert. As in Roe, the court does not find that plaintiffs have made a sufficient showing that test materials are within the requirements of section 2032.610, subdivision (a). In the broader sense, the court weighs the asserted prejudice in not making the raw data available to counsel against the potential harm from disclosure, even though disclosure would be subject to a protective order. The reasoning behind the strict ethical obligations appears to be that disclosure outside of the licensed community runs two risks: (1) that disclosure would become sufficiently public that the test’s validity could be questioned based upon potential manipulation by an examinee; and, (2) that disclosure of such detail would create a threat of misuse of the test material based upon a lack of understanding of the correct use of the test. (Stenquist decl., ¶ 7.)

The court finds that providing the raw data to plaintiffs’ expert reasonably in advance of the deposition is sufficient under the evidence and arguments here for plaintiffs’ counsel to conduct a meaningful deposition examination of Dr. Stenquist. Because the court finds this limited disclosure sufficient, the risks of inadvertent disclosure of a type that may compromise the test validity are sufficiently high as to outweigh the residual prejudice in counsel not having direct access to the test materials. Consequently, the court will deny plaintiffs’ motion.