Case Number: BC642090 Hearing Date: November 21, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

MICHAEL SHIRAZI,

Plaintiff,

v.

COUNTY OF LOS ANGELES, et al.,

Defendants.

Case No.: BC642090

Hearing Date: November 21, 2018

[TENTATIVE] order RE:

motion FOR LEAVE TO CONDUCT MENTAL EXAMINATION OF Plaintiff

BACKGROUND

Plaintiff Michael Shirazi commenced this action against Defendants County of Los Angeles (also erroneously sued as Los Angeles County/USC Medical Center), Darryl K. Shibata, M.D. (erroneously sued as Darryl K. Shibita, M.D.), and Theodore Eckberg, M.D. based on allegations of medical negligence. He alleges that Defendants’ failure to timely diagnose his cancer forced him to undergo more intensive/extensive chemotherapy, thereby causing him to suffer a number of deleterious side effects.

Defendants County of Los Angeles, Darryl K. Shibata, M.D. and Theodor Eckberg, M.D. (“Defendants”) move to compel the attendance of Plaintiff Michael Shirazi (“Plaintiff”) at a mental examination. Plaintiff opposes the motion, and Defendants have replied.

DISCUSSION

A party shall obtain leave of court is the party desires to obtain discovery by a mental examination. (CCP § 2032.310, subd. (a).) Section 2032.310(b) provides that the motion “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.” A meet and confer declaration must also accompany the motion. (CCP § 2032.310, subd. (b).) For a motion compelling mental examination to be granted, there must be a showing of “good cause.” (CCP § 2032.320(a).)

An order granting a mental examination must 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.” (CCP § 2032.320(d).) The order for the mental examination must specify the diagnostic tests to be performed “by naming the test and procedures to be performed.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261-262.) “Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant’s need for a meaningful opportunity to test the plaintiff’s claims of physical or mental injury.” (Id. at 261.)

If a party stipulates as provided in CCP § 2032.230(c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances. (CCP § 2032.320(b).) The stipulation shall include both of the following: “(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. (2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.”

Defendants argue that good cause exists for the mental examination of Plaintiff because Plaintiff has alleged and continues to allege that he suffered and continues to suffer memory loss and other cognitive deficits related to chemotherapy and is unable to work or engage in other activities. Additionally, Plaintiff’s treating physician, Dr. Nassir, opines that Plaintiff has “chemo brain” which causes mental slowness and memory loss and may require some cognitive testing. In opposition, Plaintiff argues that he has stipulated as required by CCP § 2032.320 and that Defendants have not shown exceptional circumstances warranting a mental examination. In reply, Defendants argue that exceptional circumstances exist in this case, on the basis that Plaintiff’s claims of headaches, difficulty with concentration, memory loss and depression resulting from the incident are beyond the typical mental and emotional distress contemplated by the statute, and that Plaintiff also alleges that he required a more aggressive chemotherapy treatment than he would have received if his lymphoma had been diagnosed earlier. Defendants argue that Plaintiff’s stipulation does not preclude Plaintiff from introducing testimony and evidence of his condition via his treating physicians.

The Court is inclined to find that exceptional circumstances exist under the circumstances of this case. However, Defendant’s notice of motion does not sufficiently specify the “manner, conditions, scope and nature of the examination,” as required by CCP § 2032.310(b). As noted above, “[r]equiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant’s need for a meaningful opportunity to test the plaintiff’s claims of physical or mental injury.” (Id. at 261.) Here, Defendant’s proposed Stipulation and Notice of Mental Examination attached as Exhibit F to the motion both attach “[a] summary of the examination and list of the tests to be administered” as Exhibits B and C. Exhibit B, however, is comprised of a seven paragraph statement entitled “Description of the Neuropsychological Evaluation” which does not reference any specific diagnostic tests. Exhibit C references twenty-eight separate tests. Notably, Defendants have not attached any declaration from the proposed examiner, Ari Kalechstein Ph.D., or other documentation explaining why 28 different tests are necessary or proper. The Court is unable to fashion an order pursuant to CCP § 2032.230(d) specifying the “diagnostic tests and procedures” to be conducted based on the scant information provided. Accordingly, the Court denies Defendants’ motion without prejudice.

CONCLUSION AND ORDER

Defendants’ motion to compel Plaintiff’s attendance at his mental examination is denied without prejudice. Defendants may bring this motion again but must clearly identify the diagnostic tests and procedures, by name, and provide evidence as to why the tests are necessary or proper so as to allow the Court to weigh the risks of unwarranted intrusion upon Plaintiff against Defendants’ need for discovery.

Defendants are ordered to provide notice of this order and file proof of service of such.

DATED: November 21, 2018 ___________________________

Elaine Lu

Judge of the Superior Court