Case Number: BC634958 Hearing Date: April 27, 2018 Dept: 4

MOVING PARTY: Defendants Amanda Elizabeth Hogge-Rondano and James Duffy Waldorf

RESPONDING PARTY: Plaintiff Sandie Hall

Motion for Leave to Compel Plaintiff to Attend a Mental Examination

The court considered the moving, opposition, and reply papers.

BACKGROUND

On September 22, 2016, plaintiff Sandie Hall filed a complaint against defendants Amanda Elizabeth Hogge-Rondano and James Duffy Waldorf for motor vehicle negligence and general negligence based on an incident that occurred on October 27, 2014.

On March 6, 2018, pursuant to stipulation and order, the trial date was continued from March 22, 2018 to May 14, 2018.

DISCUSSION

Defendants request an order for leave to obtain a mental examination of plaintiff, on July 18, 2018, at 10:30 a.m. with Ari Kalechstein, Ph.D. Defendants seek also to continue the trial date if the motion is granted.

“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. Superior Court (2006) 141 Cal. App. 4th 249, 258.

CCP § 2032.020 states: “(a) Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action. . . . (c) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.”

CCP § 2032.310(a) states: “(a) 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. (b) A motion for an examination under subdivision (a) 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. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

CCP § 2032.320 states in part: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or 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.”

Defendants contend that plaintiff has placed her mental status in controversy. Defendants assert that plaintiff was examined by two doctors of psychology, and that they diagnosed her with “adjustment disorder with mixed anxiety and depressed mood.” Defendants argue that the only way they can provide a rigorous defenses regarding these cognitive issues is through the neuropsychological examination and testing by Dr. Kalechstein. Defendants also contend that plaintiff had agreed to the examination and had arrived for the examination on March 15, 2018 but she terminated the examination before Dr. Kalechstein could conduct it.

In opposition, plaintiff argues that defendant’s proposed testing is a “vast overreach of the permissible parameters of such an evaluation.” Plaintiff contends that the parties had agreed that she would appear for an IME under a limited scope proposed by plaintiff but that when she arrived at the examination, Dr. Kalechstein refused to abide by the limited scope that was purportedly agreed upon. As a result, plaintiff terminated the examination. In any event, plaintiff argues, defendant has failed to demonstrate good cause for the need for 27 separate neuropsychological examinations, some of which test unrelated issues. She has claimed that she suffered a disabling anxiety response to the accident, not a traumatic brain injury. She contends that she has not expressed complaints of cognitive difficulties.

The court finds that although plaintiff has placed her mental condition in controversy concerning her adjustment disorder, anxiety, and depression, defendant’s proposed time frame is excessive.

The court ORDERS:

Plaintiff is ordered to appear for an independent mental examination on July 18, 2018, at 10:30 a.m., with Ari Kalechstein, Ph.D., at 11835 W. Olympic Blvd., Suite 1265-E, Los Angeles, CA 90064.

The examination will be conducted for the purpose of determining the origin, nature, and severity of plaintiff’s alleged difficulties/impairment.

The examination will include a clinical interview covering a variety of relevant topics related to plaintiff’s background and alleged difficulties/impairment, including the reported circumstances of onset of the alleged mental state injury or injuries; how those symptoms have unfolded over time to the present; education; employment history; social and marital history; childhood experiences; general medical history; mental health history; substance abuse; and family background.

The examination will not involve any physical examination. There will be no blood tests or other intrusive or protracted medical studies or procedures.

Plaintiff will be administered a battery of neuropsychological tests. Tests that may be administered include: b-test (for vigilance and information processing speed); Auditory Consonant Trigrams (for working memory); Boston Diagnostic Aphasia Exam and/or Western Aphasia Batter (for language); Brief Visuospatial Memory Test (for learning and memory); California Verbal Learning Test-IT (for learning and memory); Category Fluency (for language and/or executive function); Continuous Performance Test-II (for attention/information processing speed); Delis-Kaplan Executive Functioning System (for executive function); Dot Counting Test (for information processing speed); Finger Tapping Test (for motor function); Grooved Pegboard Test (for motor function); Judgment of Line Orientation (for perception of the environment); Minnesota Multiphastic Personality Inventory -2 or 2 RF (for personality/ emotional functioning); Personality Assessment Inventory (for personality/emotional functioning); Rey Auditory Verbal Learning Test (for learning and memory); Rey-Osterrieth Complex Figure Test (for visuoperception, learning, and memory, and/or executive function);

Ruff Figural Fluency Test (for executive function); Selective Reminding Test (for learning and memory and/or executive function; Semantic Fluency (for language and/or executive function); Stroop Test (for attention/information processing speed and/or executive function); Symbol Digit Modalities Test (for attention/information processing speed); TOMM (for learning and memory); Trailmaking Test – Parts A and B (for attention/information processing speed and/or executive function); Victoria Symptom Validity Test (for attention/information processing speed); Wechsler Adult Intelligence Scale – III or IV (for intelligence); Wechsler Memory Scale – III or IV (for learning and memory); Wisconsin Card Sorting Test (for executive function); and Woodcock-Johnson Tests of Academic Achievement – IV (for academic achievement).

No invasive or painful procedures will be administered.

The examination and testing shall be limited to not more than five hours.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: April 27, 2018

____________________________

Dennis J. Landin

Judge of the Superior Court