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)*.
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.”
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.”
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.”
“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.”
“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.”
*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