Carpenter v. Superior Court

• Decision Date: 11 July 2006
• Docket Number: No. A112761.,A112761.
• Citation: 45 Cal.Rptr.3d 821,141 Cal.App.4th 249
• Court: California Court of Appeals Court of Appeals
• Parties: Robert CARPENTER, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent; Yamaha Motor Corporation, USA, Real Party in Interest.

45 Cal.Rptr.3d 821

141 Cal.App.4th 249

Robert CARPENTER, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent;

Yamaha Motor Corporation, USA, Real Party in Interest.

No. A112761.

Court of Appeal, First District, Division 5.

July 11, 2006.

Meis & Alexander, Quinton B. Cutlip, Fred G. Meis, San Francisco, for Petitioner.

Wilson, Elser, Moskowitz, Edelman & Dicker, Ralph W. Robinson, Christine Starkie, San Francisco, for Real Party in Interest.

REARDON, J.^*

By petition for extraordinary writ, Robert Carpenter asks us to vacate an order that he submit to a mental examination pursuant to Code of Civil Procedure section 2032.320.¹ He contends the court did not "specify the . . . diagnostic tests and procedures . . . of the examination," as required by section 2032.320, in merely ordering that the tests would be limited to "standardized written psychological tests" that evaluated "emotional and cognitive functioning." In addition, Carpenter complains, the court erred in not ordering that he could obtain a copy of the written testing materials and his written answers after the mental examination.

We conclude that the court's order does not comply with section 2032.320. We also conclude that the court was incorrect in ruling that copyright law precluded Carpenter from obtaining a copy of the written test materials. A peremptory writ of mandate shall issue.

I. FACTS AND PROCEDURAL HISTORY

A. CARPENTER'S ALLEGED MENTAL IMPAIRMENTS

Carpenter filed a lawsuit against real party in interest Yamaha Motor Corporation, USA (Yamaha), seeking damages for personal injuries he sustained while riding his Yamaha motorcycle at a motocross track. According to his petition, a defective accelerator failed as he traversed a jump, his motorcycle pitched forward, and he was thrown headfirst into the ground. According to Yamaha, the accident was caused solely by rider error.

The impact broke Carpenter's neck and compressed his T-4 vertebrae. He also fractured most of his ribs, separated his shoulder, bruised his heart, bit his tongue in half, broke most of his front teeth, and suffered a traumatic brain injury. In addition, Carpenter allegedly continues to suffer from headaches, sensitivity to light, vision problems, problems with smell and taste, pain, weakness, limited movement, memory deficits, and confusion.

Carpenter seeks to recover millions of dollars from Yamaha, contending that he has sustained brain damage affecting all aspects of his cognitive functioning, emotional functioning, and personality. Based on a report from his healthcare providers, cognitive and emotional testing indicates that he suffers from (1) cognitive barriers affecting future employment, including impairment in regard to memory, problem solving and abstract reasoning, and organization, and (2) certain psychological work skill barriers affecting future employment, including impairment in word recognition and auditory comprehension, physical limitations, and difficulty with anger management. In his deposition, Carpenter testified that he suffers from depression, anger, and frustration, as well as problems with his memory, communication skills, and emotions.

B. YAMAHA'S DEMAND FOR MENTAL EXAMINATION

On June 29, 2005, Yamaha served Carpenter with a "Demand for Independent Medical Examination," requesting a neurological examination and a neuropsychological examination in the course of a single day on August 1, 2005 (IME Demand). The neurological examination was to be performed by Mark H. Strassberg, M.D., while Ronald H. Roberts, Ph.D., would administer the neuropsychological examination. The IME Demand did not name the tests that would be employed, but advised: "These standard examinations are to consist of patient history and such other routine tests and procedures as may be deemed necessary to determine the existence and nature of bodily and psychological injuries allegedly suffered during the incident which is the subject of this litigation. No physically intrusive or invasive procedures will be performed."

Carpenter served a written response to the IME Demand on July 18, 2005. Among other things, he contended that the reference to "routine tests" was not sufficiently specific, and claimed that "a written test such as the MMPI [Minnesota Multiphasic Personality Inventory] is impermissibly protracted."

The parties met and conferred. By letter to Carpenter's counsel dated August 9, 2005, Yamaha's counsel purported to memorialize a conversation of July 22, 2005, in which the parties agreed that separate physical and mental examinations would be held on September 6, 2005. The letter confirmed that Dr. Strassberg would conduct the physical (neurological) examination, and Dr. Roberts would perform the mental (neuropsychological) examination, which would consist "simply of written tests that can be completed in the same day as the physical examinations." Carpenter's counsel could observe the physical examination, but only audio-tape the mental examination. (See §§ 2032.510, 2032.530, subd. (a).)

On August 31, 2005, however, Carpenter's counsel asserted in a hand-delivered letter that the parties had not yet worked out the specifics for the September 6 mental examination. Although Carpenter was agreeable to a mental examination, he (1) objected to Dr. Roberts duplicating Dr. Strassberg's neurological examination; (2) refused to take the MMPI because, he claimed, it was a far-ranging personality inventory exceeding the scope of his injuries; (3) insisted on recording the neurological examination by court reporter; (4) refused to allow extensive questioning regarding medical history; and (5) maintained that Yamaha was required to "set forth precisely what `written tests' are to be included as part of the mental examination."

Yamaha's attorney wrote back on September 2, 2005. She advised that Dr. Strassberg would actually conduct both a physical examination and neuropsychiatric (mental) evaluation, of which only the physical examination could be attended by counsel. In addition, Dr. Roberts would conduct the psychological (mental) testing, which would not duplicate Dr. Strassberg's interview, and no third party could attend. (§§ 2032.510, 2032.530.) Yamaha defended the use of the MMPI and claimed there was no authority for Carpenter to obtain in advance a list of the particular tests to be administered, since the tests would be selected according to Carpenter's presentation of his condition and an advance list would enable Carpenter to prepare for the tests and manipulate the results.

Carpenter's attorney responded that same day (at approximately 4:45 p.m., one business day before the examination). He insisted that Yamaha should have to identify the specific tests to be used during the mental examination, since any court order for a mental examination under section 2032.320 would have to specify the diagnostic tests and procedures. Carpenter agreed to be physically examined by Dr. Strassberg on September 6, but refused to proceed with the mental examination.

C. SEPTEMBER 6 PHYSICAL (NEUROLOGICAL) EXAMINATION BY DR. STRASSBERG

Carpenter appeared with his attorney at Dr. Strassberg's office on September 6, 2005. With much interruption by Carpenter's attorney, Dr. Strassberg conducted a physical neurological examination and asked Carpenter some questions to help assess his mental functioning and memory. The mental (neuropsychiatric) examination did not take place.

D. YAMAHA'S MOTION TO COMPEL MENTAL EXAMINATION

Yamaha filed a motion seeking an order "compelling Plaintiff's compliance with the stipulated to and noticed mental examination." In an accompanying declaration, Dr. Strassberg described the nature of the planned mental examination, noting that his "neuropsychiatric examination of Mr. Carpenter" would be "followed by written psychological tests" in which Dr. Roberts would assist. "The written tests," Dr. Strassberg explained, would be "selected in accordance with the nature and scope of the plaintiff's presenting complaints." Further, Dr. Strassberg advised: "We use only standardized procedures that are relied upon by other psychiatrists and psychologists. The tests evaluate cognitive and emotional functioning, such as memory, concentration, attention, visual spatial capacity, etc. There will be no procedures which are painful, intrusive or protracted. Mr. Carpenter, as all patients, will be treated with due care and respect." (Italics added.) Dr. Strassberg could not, however, identify in advance the specific tests to be employed: "It may be possible to provide a list of all psychological tests which could possibly be administered, but we cannot provide a list of specifically which psychological tests will be administered, because they will be selected based upon the patient's clinical presentation."²

In his opposition to Yamaha's motion, Carpenter did not dispute that Yamaha is entitled to a mental examination, but argued that the court could not issue an order comporting with section 2032.320, because Yamaha never identified the specific diagnostic tests and procedures to be used. As a new matter, Carpenter requested that the court order Yamaha's examiner(s) to provide him with copies of all tests, test responses, and other written communications by Carpenter immediately after the examination.

The trial court's tentative ruling granted Yamaha's motion but directed the parties to meet and confer on the form of the order, which would "list each and every diagnostic test sought to be performed in addition to the other items required by CCP 2032.320(d)."

Both Carpenter and Yamaha contested the tentative ruling and appeared at the hearing on November 30, 2005. After considering the argument of counsel, the court continued the hearing to December 19, 2005, with instructions for counsel to meet and confer to resolve the disputed issues.

The parties were unable to resolve their dispute over the disclosure of the names of the...