2017-00218375-CU-PA

Khalid Jaber vs. California Environmental Systems, Inc.

Nature of Proceeding: Motion to Compel Medical Examination

Filed By: Taleghani, Marrianne S.

Defendants California Environmental Systems, Inc. and Carter Sterling Pierce (collectively, “Defendants”) Motion to Compel Plaintiff Khalid Jaber’s (“Plaintiff”) Mental Examination is GRANTED as set forth below, with the examination time to be limited to 12 hours.

The notice of hearing does not provide notice of the Court’s tentative ruling system, as required by California Rule of Court 3.1308 and Local Rule 1.06(D). Moving party is directed to contact non-moving party forthwith and advise of Local Rule 1.06(D) and the Court’s tentative ruling procedure. If moving party is unable to contact non-moving

party prior to hearing, moving party shall be available at the hearing, in person or by telephone, in the event non-moving party appears without following the procedures set forth in Local Rule 1.06(B).

In this personal injury action arising from a motor vehicle accident, Plaintiff’s Complaint asserts a single cause of action for “personal injury,” as well as a “loss of consortium” cause of action on behalf of Plaintiff’s wife.

Defendant seeks to have Plaintiff undergo two separate mental examinations, one by neurologist and psychiatrist Mark Strassberg, M.D. as well as one by psychologist Ronald Roberts, Ph.D.

According to Defendant’s moving papers, Plaintiff makes claims of severely impaired neurological, emotional, and cognitive functions from the motor vehicle accident that occurred on February 23, 2017. (P&As at 2 (citing Pl.’s Resps. to Form Interrogatories No. 6.2, Exh. B to Taleghani Decl.).)

Plaintiff claims he “sustained a traumatic brain injury and experiences headaches” and “experienced severe emotional distress and symptoms of what he is told is Post Traumatic Stress Disorder.” (Id.) In addition to treating for his head, neck, shoulders, back, and hip pain, Plaintiff testified that has seen a psychiatrist more than ten times since the accident. (See Taleghani Dec, Exhibit C, page 160: line 25, page 161: lines 1 -11). Plaintiff testified at his deposition that he began feeling depressed within two months after the accident. (Id., page 97: lines] 1-22). He claims he also has physical and psychological manifestations of the trauma caused by accident. Since the accident, Plaintiff allegedly suffers from memory issues, has trouble misplacing things, and has problems with numbers. (Id., page 151-152). He further contends that his mood and temperament were gravely affected by the subject accident. He stated since the accident he is quicker to anger; stating that he gets angry for absolutely no reason. (Id., page 154: lines 22-23). At times, the quick and negative change in his temperament causes his whole body to shake and often led him to tears. (Id., page 155). Because of his fragile emotional and psychological state, he claims he has isolated himself from others and has had to depend on his wife for comfort and support. (Id., page 156).

Legal Standards

Civil discovery by physical and mental examination is governed by Code of Civil Procedure 2032.010 through 2032.650. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258-59.) “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.” (Id. (citing Code of Civil Procedure §§ 2032.020(a), 2032.310).)

If the defendant wants to obtain discovery by a mental examination (or by a physical examination other than that described in § 2032.220 et seq.), the defendant must obtain leave of court. (Id. (citing Code of Civil Procedure § 2032.310(a)).) The motion for a mental examination, like the demand for a physical examination under Section 2032.220, “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. (citing Code of Civil Procedure § 2032.310(b)).) Section 2032.320 governs the order granting a motion for a mental examination. .

Where a plaintiffs injuries are complex, several examinations, by specialists in different fields, may be necessary. The good cause requirement checks any potential harassment of plaintiff. Thus, to protect the plaintiff’s privacy interests from unnecessary intrusion, the mental examination may be ordered only upon a showing of good cause. (Id. (citing Code of Civil Procedure § 2032.320(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427-428).) 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 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.” (Id. (citing Code of Civil Procedure § 2032.320(d)).)

There is nothing in the language of Code Civ. Proc. §§ 2032.010 et seq. that expressly limits the number of mental or physical examinations. “Thus, for example, defendants, on a showing of good cause, may obtain multiple examinations of a personal injury plaintiff in addition to the initial physical examination that may be demanded without court order in such cases. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1256.) Depending on the injury alleged by the plaintiff, multiple examinations by medical specialists in different fields pertinent to a plaintiff’s injury may be appropriate. (Id. (dicta).)

Meet and Confer Requirement

Plaintiff argues that the motion was filed without the requisite meet-and-confer declaration under Code of Civil Procedure §§ 2032.310(b) and 2016.040. The Court is not persuaded. Moving party’s counsel’s declaration shows more than one attempt to meet and confer with Plaintiff’s counsel on the issues prior to filing the motion. (Declaration of Marrianne S. Taleghani (“Taleghani Decl.”) ¶ 5, Exh. D.)

Discussion

Defendant seeks to have Plaintiff undergo two separate mental examinations, one by neurologist and psychiatrist Mark Strassberg, M.D. as well as one by psychologist Ronald Roberts, Ph.D.

Defendant moves pursuant to Code of Civil Procedure §§ 2032.010 for an order that “[g]ood cause exists to compel Plaintiff’s neuropsychiatric and neuropsychological medical exam. Plaintiff makes claims of severely impaired neurological, emotional and cognitive functions from the motor vehicle accident that occurred on February 23, 2017.”

It is, of course, axiomatic that a showing of good cause must reveal the following: (1) relevance to the subject matter of the litigation; and (2) facts justifying the discovery. ( Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Pursuant to Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 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. Defendants argue that they are entitled to demand plaintiff’s appearance for two mental examinations as he has placed his current and future mental and emotional pain and suffering in controversy and separately claims cognitive impairment from a traumatic brain injury.” (Notice of Motion at 2; P&As at 2-4.)

In Plaintiff’s Opposition, Plaintiff does not dispute that Defendants are entitled to a single mental examination. Plaintiff does not dispute the qualifications of the proposed examiners. Plaintiff does not dispute that he separately claims a “traumatic brain injury” and resulting continuing difficulties, including emotional distress arising therefrom.

However, Plaintiff argues that two separate examinations by two separate experts, likely to span two days, does not have good cause and would be unnecessary. (Opp’n at 2-6.) Plaintiff argues that “Defendants’ moving papers offer nothing more than mere platitudes that a medical assessment ‘requires’ neuropsychological testing and that a psychiatric evaluation is a ‘necessary’ compliment.” (Opp’n at 3.) Plaintiff argues,

Defendants’ motion fails to state specific facts as to why neuropsychological testing is “required” or why psychiatric evaluation is “necessary” other than merely arriving at these conclusions simply because Plaintiff has put a traumatic brain injury, emotional distress and PTSD at issue. A traumatic brain injury is a physical injury with physical symptoms. PTSD is a very specific mental disorder.

It does not take both Dr. Strassberg and Dr. Roberts to evaluate Mr. Jaber for the conditions at issue. According to their CVs and declarations, each of the two individuals is claiming they are equipped to evaluate the totality of Plaintiff’s conditions at issue. In fact, Mr. Jaber’s own treaters are not evaluating him for the overbroad scope of issues Defendants’ experts seek to. Mr. Jaber’s treaters for these issues include a neurologist, a psychiatrist and a therapist. (See Exhibit 1) None of Mr. Jaber’s medical providers have administered a neuropsychological exam to him. This request for two mental examinations is unnecessary by Defendants.

(Opp’n at 3.) Plaintiff also argues that the two examiners will end up duplicating portions of each other’s examinations and interviews, resulting in a cumulative and time-wasting fishing expedition. (Opp’n at 4.) Plaintiff argues that one examiner can simply review the other examiner’s reports and reach conclusions therefrom. (Id.)

Plaintiff apparently does not dispute that he may raise the issue of mild traumatic brain injury at trial or that he may intend to seek damages therefor. Thus, in addition to the emotional and psychological injury, Plaintiff may be claiming a separate and distinct physical injury as well. Plaintiff has not disclaimed any intent to seek damages for cognitive impairment arising from a traumatic brain injury.

The Court agrees that Plaintiff has squarely placed his mental condition at issue, as evidenced by the allegations in his pleading and his responses to discovery. (See Code of Civil Procedure § 2032.020(a); see also Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341 (holding that allegations of physical or mental injury in the complaint places the condition in controversy).) “[A]ny party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy . . . in addition, by asserting a causal link between [his] mental distress and defendants’ conduct, plaintiff implicitly claims it was not caused by a preexisting

mental condition, thereby raising the question of alternative sources for the distress. ( Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1885.)

Here, given the two distinct forms of the injuries alleged: a physical brain “trauma” injury, as well as both emotional and mental suffering continuing into the future, the Court agrees with Defendants that two separate examinations by two separate examiners (with differing areas of expertise) are warranted in this particular case. Discovery of “alternative sources for the distress” is warranted. (See Doyle, 50 Cal.App.4th at 1885.) The motion is GRANTED in that regard.

The Court is not persuaded by Plaintiff’s argument that the scope of Defendants’ requested mental examinations must somehow be curtailed by the scope of the treatment Plaintiff’s own “treaters” are performing on Plaintiff. Defendants are entitled to the discovery they seek here, notwithstanding the course(s) of treatment Plaintiff’s treating physicians have chosen.

However, the Court shares Plaintiff’s concerns that some portions of the examinations appear potentially duplicative/cumulative. (Opp’n at 3-4 (both examiners will take a “history;” both will ask about sleep, pain, and medications; both will test memory and executive function, both will look for “subjective distress” or “ongoing emotional issues”).) The Opposition also raises concerns that the estimated total length of the exams could possibly exceed fifteen and a half hours. (Opp’n at 4.) Accordingly, the Court orders that the two mental examinations be completed within 12 hours of actual examination time (excluding breaks), and no more than 6 hours of actual examination time in any given day.

The Court recognizes Plaintiff’s wish to have the examinations completed in as little time as possible so as to minimize the “burden on Plaintiff who is the sole provider for his wife and child.” (Opp’n at 4.) However, the Court must balance Plaintiff’s concerns against Defendant’s right to obtain discovery, and here the Court finds that 12 hours of actual examination time (excluding breaks) may be conducted on two different days.

Accordingly, the Court agrees with Defendants that there is good cause for the requested two mental examinations as requested in the moving papers, and the Motion to Compel is GRANTED as to the particular exam structure stated in the Demand (Exh. D to Taleghani Decl.); however, the examinations shall be completed in no more than 12 hours of actual examination time. To evaluate Plaintiffs claimed cognitive deficits, Dr. Roberts will administer psychometric testing. As interpretation of the psychometric testing requires an understanding of Plaintiff s psychiatric history, as this can affect the test results, Dr. Strassberg will conduct a standard psychiatric history. Finally, to evaluate Plaintiffs claimed nerve damage and cognitive impairment from a neurological prospective, Dr. Strassberg will conduct a neurologic physical examination.

Diagnostic Tests/Procedures to be Performed

Plaintiff argues that the Court should deny Defendants’ motion because the moving papers fail to specify the diagnostic tests and procedures to be done in the examination. (Opp’n at 6; Code Civ. Proc. § 2032.320(d).) The Court is not persuaded that denial of the motion is warranted on these grounds. As described above herein, while an order directing a mental examination must include this specificity, the section governing a motion seeking such an order does not expressly

require as much. (See Code of Civil Procedure §§ 2032.220 (demand for exam);

2032.310(b) (motion compelling exam); 2032.320(d) (order directing exam).) The requirement that the order “specify the … diagnostic tests and procedures” does not appear in the requirements for a demand for a physical examination (Code of Civil Procedure § 2032.220) or the requirements for the motion for a mental examination or other physical examination (Code of Civil Procedure § 2032.310). (Id.) Moreover, here the moving papers expressly cite to the Demand (Exh. G to Taleghani Decl.), which itself specifies the tests and procedures to be done during the examinations of Plaintiff.

Notwithstanding the foregoing, the Court agrees with Plaintiff that any Court Order granting this motion must specify the tests to be administered to Plaintiff during the exam. (Code Civ. Proc. § 2032.320(d).)

Good cause appearing, in GRANTING the motion and ordering Plaintiff to undergo the two mental examinations (totaling no more than 12 hours of actual examination time), the Court hereby orders that the examination shall be limited to the tests and matters specified in Exhibit G to the Taleghani Declaration. No further testing beyond those tests specified in that Exhibit will be permitted during the examination.

Defendants shall prepare a formal order for the Court’s signature consistent with the foregoing, pursuant to C.R.C. 3.1312.