By Eric Ganci
In California civil litigation, if Plaintiff alleges a brain injury (TBI), many times Defense will hire a neuropsychologist as an expert to evaluate Plaintiff for the claimed injuries. Plaintiff can do the same too.
The world of neuropsychology has tests where many times the raw testing data, questions, and grading format is not disclosed, unless it’s from neuropsychologist to neuropsychologist. Well…that can become a problem if a retained neuropsychologist is not doing ethical, objective testing. And that can become a really, really big problem if an expert is allowed to testify to improper science and findings to a Jury at trial.
In a world of objectivity and full disclosures, it can be important to receive this raw data to evaluate evidence and uncover things that are wrong, false, and improper.
Well, now we have a California case directly on-point regarding this issue, which is the May 22, 2023 published opinion Randy’s Trucking, Inc. v. The Superior Court of Kern County (Buttram)*.
These are the facts of Randy’s Trucking:
- Defendant caused a car crash to Plaintiff. And Plaintiff alleged a brain injury.
- Defendant retained Dr. Tara Victor as a neuropsychologist, who ran tests on Plaintiff.
- Plaintiff sought to obtain that raw data, Defense objected although asked the Court to allow “to transfer the testing information to plaintiffs’ expert rather than plaintiffs’ counsel”, the Court disagreed with Defense and ordered Defense to produce the raw data to Plaintiff Counsel in accordance with a protective order, then Defense’s neuropsychologist recused herself.
- “After defendants contacted two other neuropsychologists [Dr. Kyle Boone and Dr. Lori Holt) who stated they also could not comply with the transmission order, defendants moved for reconsideration of the transmission order. The trial court denied the motion.”
Let’s start with some general law about this:
Per California Code of Civil Procedure § 2032.530: Both the examiner and examinee “have the right to record a mental examination by audio technology.”
Per CCP § 2032.610(a)(1): If a party submits to a mental examination, “that party has the option of making a written demand that the party” seeking the examination deliver to the demanding party “[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.”
If the option is exercised, a copy of the requested reports must “be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.” That’s CCP 2032.610 at (b).
And case law says this: “There is no statutory authority, however, precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.”
The Court analyzes the 2006 case Carpenter v. Superior Court** saying:
- “While Carpenter did not decide whether the examiner’s ethical and professional obligations precluded disclosing the test questions and the examinee’s answers to the examinee, the appellate court recognized the trial court has discretion to order the disclosure of such materials even if no statute authorizes it.”
- While the Carpenter court did not specifically analyze [CCP] section 2032.610 in making its observation, given the trial court’s broad discretion in discovery matters, the trial court nevertheless has the power to order disclosure of test materials and data to plaintiff’s attorney.”
Defense here tries to argue a 2015 case Roe v. Superior Court (2015)***, where “trial court ordered the examiners to provide the reports statutorily required by [CCP] section 2032.610, [but] it specified the plaintiffs were not entitled to the written testing materials and the minor’s answers without further court order.”
But the Court here addresses Roe alongside Carpenter by saying:
- At best, Roe stands for the proposition that a trial court is not required to order the production of test materials or test data under [CCP] section 2032.610. Under Carpenter, however, given the trial court’s broad discretion in discovery matters, it retains the discretion to order the production of such materials.
- Moreover, although not developed by either party, since [CCP] section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording. Where, as here, the trial court ordered the examiner to record the examination, the trial court had discretion to order the examiner to provide a copy to the examinee. Therefore, we conclude the trial court here had the discretion to order the production of the raw data and audio recording, as stated in its order.”
The next issue here is then “whether the trial court abused its discretion in ordering transmission of the raw data and audio recording to plaintiffs’ counsel.”
To this, Defense’s retained expert filed a declaration to try and:
- explain “the problems with [3rd party observation] and recording the examination, including: (1) compromising the validity of future neuropsychological test results; (2) potential misuse and misinterpretation of tests by untrained [3rd party observations] ‘who have no compelling interest in protection of copyrighted test content’; (3) potential conflicts with the APA Ethical Standards and “several key principles in the Specialty Guidelines for Forensic Psychology of the American Psychological Association (2013)’; (4) the increased likelihood test content and instructions would be disseminated which “raises the risk that motivated parties will coach and prepare examinees for testing in advance, specifically to influence test results’; and (5) ‘[l]awyers involved in brain injury litigation routinely coach their clients how to approach neuropsychological testing to their advantage.’ Dr. Victor asserted [3rd party observation] ‘confers no overriding benefits that offset the significant costs of exposing test materials.’”
However, this Court again disagrees with Defense, saying:
“While Dr. Victor explained the dangers associated with [3rd party observation], she did not explain why a protective order would not ameliorate those dangers. She also did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs’ attorney subject to a protective order.”
The Court further analyzes:
- “Weighed against this evidence is plaintiffs’ right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion. …Without the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion.”
The Court also gives these powerful statements:
- “[D]isclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.”
- “[T]he purpose of audiotaping the examination is ‘to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee’s interests are protected (especially since the examinee’s counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court.’ Without plaintiffs’ access to the audiotape and raw data, plaintiffs cannot adequately protect these interests.”
Defense also argues Plaintiff could violate a protective order for the produced raw data and audio recording. Again, the Court here disagrees, saying:
- “[T]he protective order can be enforced against plaintiffs’ attorney if he or his staff were to violate it by contempt or other sanctions.”
- And that: “[T]echnology makes transmission of highly sensitive information possible in many cases involving sensitive information, including personal injury, employment, business torts, and intellectual property. There is no evidence that attorneys regularly violate protective orders, including those concerning psychological or neuropsychological testing materials.”
“In sum, the trial court did not abuse its discretion in ordering transmission of raw data and audio recording to plaintiffs’ attorney subject to a protective order, as plaintiffs demonstrated a need for the materials and the protective order would address the concerns about test security and integrity.”
Cites:
*Cited as of 5/22/23 as Randy’s Trucking, Inc. v. The Superior Court of Kern County (Buttram) 2023 WL 3530705
**Carpenter v. Superior Court (2006) 141 Cal.App.4th 249
***Roe v. Superior Court (2015) 243 Cal.App.4th 138
CCP § 2032.530
CCP § 2032.610
