Case Number: BC597198 Hearing Date: October 17, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Patricia Leitheiser, et al.,

Plaintiffs,

v.

Safeway, Inc., et al.,

Defendant.

Case No.: BC597198

Hearing Date: October 17, 2018

[TENTATIVE] order RE:

defendant’s motion to compel plaintiff patricia leitheiser’s COMPLETION of the Ordered mental examination

BACKGROUND

Plaintiffs Patricia Leitheiser (“Plaintiff”) and Patrick Leitheiser (collectively, “Plaintiffs”) allege that Patricia was injured when she slipped and fell on the premises owned or controlled by the Vons Company (“Defendant”). Patrick is alleging injuries for loss of consortium for the injuries sustained by Patricia.

On June 20, 2018, the Court granted Defendant’s motion to compel the psychological examination of Plaintiff by psychologist Colin G. Koransky, Ph.D. The examination was scheduled to occur on July 18, 2018. Plaintiff appeared at the examination, but Defendant asserts that the examination was terminated prior to completion due to the behavior that Plaintiff exhibited.

Defendant now seeks an order compelling Plaintiff to sit for the entire duration of the ordered psychological testing or in the alternative for an imposition of monetary sanctions against Plaintiff for the costs of the failed examination and the costs incurred in bringing this motion.

DISCUSSION

CCP §2032.310 provides that if any party desires to obtain discovery by a physical or mental examination, the party shall obtain leave of court. The motion for examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty (if any) of the person(s) who will perform the examination. The motion must be accompanied by a meet and confer declaration. The court shall grant a motion upon good cause shown. (CCP § 2032.320, subd. (a).) If a party fails to submit to a required mental examination “the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction.” (CCP § 2032.410.)

On May 25, 2018, Defendant filed a motion to compel Plaintiff to attend a psychological examination with Dr. Colin Koransky because Plaintiff claims that she is suffering from depression as a result of the fall. Defendant conducted a neurological examination of Plaintiff by Dr. Phillip O’Carroll. Dr. O’Carroll was unable to perform the examination because Patricia sat in a corner whimpering and mumbling while her husband gave an oral history to Dr. O’Carroll. Defendant also completed a deposition of Patricia’s evaluating neurologist Dr. Ronald Kent. Dr. Kent states that Patricia also presented to his office crying and providing unintelligible sounds while her husband communicated her history. Dr. Kent testified that he could not explain her condition from a neurological standpoint and that he would defer to psychiatric experts.

On June 20, 2018, the Court granted Defendant’s motion to compel Plaintiff’s mental examination by Dr. Koransky. At the ordered mental examination on July 18, 2018, Plaintiff exhibited behavior similar to that described by Dr. O’Carroll and Dr. Kent, but to a much greater extent. Dr. Koransky summarized the events of the short evaluation as follows: During the beginning of the evaluation, Dr. Koransky asked Plaintiff about her children. Plaintiff’s response was difficult to understand, but she seemed to indicate she has four children. Dr. Koransky then asked Plaintiff to name them, and Plaintiff was only able to name three of her children. Dr. Koransky asked for the fourth child’s name, which Plaintiff gave after some thought and some stammering. Dr. Koransky then asked how old this fourth child was, and Plaintiff was unable to give the child’s age. At this point, Plaintiff’s “mangled speech escalated to [sic] from loud to screaming, became totally incomprehensible with gasping, and crying, and escalated to a point where [Dr. Koransky] decided to bring [Plaintiff’s] husband and mother into the room. This intensification did not subside for a period of approximately 12 minutes.” (Def. Exh. C p. 6.)

Dr. Koransky told the mother and husband that the consultation could not continue while Plaintiff was in this state and suggested that Plaintiff be taken home. Plaintiff “was unable or refused to get out of the chair, and her incessant shouting and comprehensible [sic] speech continued for several minutes while her husband implored her to settle down and get up from the chair. . . . The screaming continued to escalate during the several minutes that it took to get her to try and walk a few steps to the waiting room and exit with her husband and mother holding onto her.” (Ibid.) Dr. Koransky also saw that several neighboring physicians’ staff were looking into the hall way due to the volume of the screaming. Dr. Koransky pointed out that one of the other offices may call 911, and at that point, he would have no control over the paramedic response, and Plaintiff may be taken to a hospital. After more loud screaming, “muttering and crying repeatedly: ‘no hospital,’” from Plaintiff, Plaintiff’s husband and mother were able to remove Plaintiff from the office. (Ibid.) Dr. Koransky also states that his office has a view of the parking lot from the building. Dr. Koransky observed Plaintiff exit the lobby and walk to Plaintiff’s car, driven by the husband, without assistance. Plaintiff “did not appear to be speaking or shouting as she calmly approached the car without assistance.” (Id. p. 7.) Dr. Koransky concludes in his report that he believes Plaintiff is malingering for secondary gain, based on both her behavior at the examination and her past psychological test results. (Id. pp. 10-11.)

Defendant contends that the above behavior displayed by Plaintiff at the mental examination was “not the result of any cognitive deficits or personality disorders she developed as a result of her fall at Vons. Rather, she was putting on a show so that she did not have to complete the examination.” (Def. Mot., p. 4.) Defendant contends that Plaintiff has exaggerated her psychological and behavioral symptoms at both the neurological and psychological examinations for financial gain in this lawsuit. To support this contention, Defendant offers the deposition of Dr. David Ginsberg, Plaintiff’s urologist. Plaintiff sees Dr. Ginsberg for conditions unrelated to any litigation. On January 12, 2018—three weeks before the neurological examination with Defendant’s doctor—Plaintiff presented to Dr. Ginsberg for an appointment. At the visit with Dr. Ginsberg, a non-litigation related doctor, Plaintiff “rested comfortably in a chair in no distress.” (Def. Exh. G, pp. 34:16-35:9.) Plaintiff also responded appropriately to Dr. Ginsberg’s questions during the evaluation. (Id. pp. 35:14-36:6.) Defendant argues that Dr. Ginsberg’s testimony shows that Plaintiff is exaggerating her symptoms for Defendant’s medical examinations in order to gain an advantage in this litigation.

In opposition, Plaintiff argues that she is not exaggerating her symptoms. Plaintiff also contends that in the event Plaintiff is ordered to appear at another examination, it is unlikely that she is capable of completing the testing requested by Defendant. Plaintiff does not attempt to refute or challenge evidence of Plaintiff’s behavior at the examination by Dr. Ginsberg. Plaintiff incorrectly argues for most of the opposition that an Informal Discovery Conference (“IDC”) was required before the filing of this motion. Such IDCs are required only for any motions to compel further discovery. The instant motion is one to compel compliance with the Court’s previous order, and as such, an IDC was not necessary before this motion. Plaintiff also offers the declarations of Plaintiff herself and her husband to show that Plaintiff became upset during the evaluation and was told to leave by Dr. Koransky. Plaintiff claims that Dr. Koransky showed her a picture of her children and that she became agitated when she could not recall the age of her youngest son. (Plaintiff Decl., ¶ 9.) Plaintiff then experienced “extreme anxiety and a panic attack.” (Ibid.) Plaintiff also states that she was “still hysterical” when she exited the building and was helped to the car. (Id. ¶ 10.) Plaintiff then states that they “drove to an area near the water where [they] sat so [Plaintiff] could calm [herself] down.” (Id. ¶ 11.)

In reply, Defendant, among other evidence, offers video surveillance of Plaintiff as she was leaving the examination office on July 18, 2018. Apparently, Defendant had hired Armando Ramirez of Frasco Investigative Services to conduct surveillance on Plaintiff after the medical examination. (Ramirez Decl., ¶¶ 2, 3.) Ramirez recorded approximately seven minutes of surveillance of Plaintiff in two locations: outside the office and near a body of water. The Court has reviewed this evidence and it appears that immediately outside Dr. Koransky’s office, Plaintiff is sitting on a bench. She does not appear to be speaking or yelling in any manner. Nor does she appear to have an agitated facial expression or body position. At the body of water, Plaintiff can be seen standing with her husband and mother and speaking to them. Again, Plaintiff does not appear agitated.

Based on all of the foregoing evidence, the Court finds that Plaintiff has not satisfactorily complied with the Court’s June 20, 2018 order to appear at and participate in the defense mental examination. Plaintiff’s behavior at the July 18, 2018 examination made it impossible for Dr. Koransky to complete his examination, and thus, Defendant will be left at a disadvantage in the litigation if Plaintiff does not return to complete her examination. Further, Dr. Koransky references in his evaluation report other psychological testing undergone by Plaintiff with her treating physicians. If Plaintiff was able to sit for and complete psychological testing with her own physicians, then she must complete such examinations with Defendant’s mental examiner. Should Plaintiff not complete the ordered examination with Dr. Koransky a second time, the Court will consider the imposition of monetary, issue and evidentiary sanctions.

Accordingly, the Court orders Plaintiff to comply with the Court’s June 20, 2018 order to attend and complete the defense mental examination with Dr. Koransky. The Court compels Plaintiff to be evaluated by psychologist Colin G. Koransky, Ph.D., at 400 Newport Center Dr., Suite 410, Newport Beach, CA 92660 within 30 days on a date noticed by Defendant. Within two days, Plaintiff is ordered to provide Defense Counsel with at least 5 dates within the next 30 days on which Plaintiff is available for the evaluation by Dr. Koransky. Dr. Koransky will perform the following tests:

· TOMMS Test

· Validity profile Indicator

· GAMA (General Test of Mental Abilities)

· The Beta Test

· California Verbal Learning Test

· Shipley Test

· Rey Complex Figure Design Test

· Select test from the Delis Kaplan Tests of Executive Functioning

· Microcog Test for cognitive functioning

· MMPI – 2

· MCMI – IV (Million Clinical Multi-Axial Inventory)

· Brief Symptom Inventory

· Beck Depression Inventory

· Beck Anxiety Inventory

· Trauma Symptom Inventory

The Court finds that the imposition of monetary sanctions is not appropriate at this time given the Court’s above order. However, should Plaintiff fail to attend and complete the mental examination, the Court will consider the imposition of monetary sanctions for the cost of the mental examinations in addition to any issue or evidentiary sanctions.

CONCLUSION AND ORDER

Defendant’s motion to compel Plaintiff’s compliance with the Court’s prior order for a mental examination is granted. The Court compels Plaintiff to be evaluated by psychologist Colin G. Koransky, Ph.D., at 400 Newport Center Dr., Suite 410, Newport Beach, CA 92660 within 30 days on a date noticed by Defendant. Within two days, Plaintiff is ordered to provide Defense Counsel with at least 5 dates within the next 30 days on which Plaintiff is available for the evaluation by Dr. Koransky.

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: October 17, 2018 ___________________________

Elaine Lu

Judge of the Superior Court