Randy's Trucking, Inc. v. The Superior Court
| Decision Date | 27 April 2023 |
| Docket Number | F084849 |
| Parties | RANDY'S TRUCKING, INC., et al., Petitioners, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; ANGELA BUTTRAM et al., Real Parties in Interest. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super Ct. No. BCV-20-100982 Bernard C. Barmann, Judge.
Haight Brown &Bonesteel LLP, Arezoo Jamshidi, Kaitlyn A. Jensen Krsto Mijanovic, Elizabeth Rhodes, and Steven Scordalakis for Petitioner.
Artiano Shinoff and Paul V. Carelli IV for Amici Curiae American Academy of Clinical Neuropsychology and Inter Organizational Practice Committee on behalf of Petitioners.
Law Offices of Ryan Connolly and Ryan Connolly for Amicus Curiae Manson Western, Inc., on behalf of Petitioners.
Carlton Fields, LLP and Stephanie G. Chau for Amicus Curiae Psychological Assessment Resources, Inc., on behalf of Petitioners.
No appearance for Respondent.
Vaziri Law Group, Siamak Vaziri, David Shay, and Mark J. Nagle for Real Parties in Interest.
This lawsuit arises from a motor vehicle accident which Angela Buttram alleges occurred when a tractor-trailer rear-ended the school bus she was driving. Buttram and Devon Robbins, a passenger on the school bus (collectively, plaintiffs), sued Blaine Fields, the tractor-trailer driver, and his employer, Randy's Trucking, Inc. (collectively, defendants), alleging personal injuries and emotional distress from the accident.
During discovery, Buttram claimed she suffered a severe traumatic brain injury due to the accident, and her associated symptoms prevented her from returning to work. Consequently, defendants filed a motion for an order compelling Buttram to undergo a mental examination by their neuropsychologist after plaintiffs refused to allow the examination to proceed unless their attorney received all raw data and test information from the examination. Defendants asked the trial court to prohibit the provision of raw test data, test materials, copyrighted publications, or documents containing proprietary information to anyone other than a licensed psychologist or neuropsychologist. While the trial court granted the motion to compel the examination, it denied defendants' request to limit transmission of the test data and materials to a licensed psychologist or neuropsychologist; instead, the court ordered defendants' neuropsychologist to transfer raw data and an audio recording of the examination to plaintiffs' attorney subject to a protective order (the transmission order).
Defendants' chosen neuropsychologist recused herself, stating she could not comply with the transmission order because doing so would compromise the security of the tests and cause her to violate her professional and ethical duties. After defendants contacted two other neuropsychologists 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.
Defendants filed a petition for writ of mandate in this court to challenge the transmission order and the denial of their motion for reconsideration, arguing the trial court abused its discretion. Defendants ask us to direct the trial court to either modify the transmission order to require the transmission of the raw data and audio recording to plaintiffs' retained psychologist or neuropsychologist rather than plaintiffs' attorney, or vacate the order denying the motion for reconsideration and enter a new order granting the motion.
We issued an order to show cause and stayed further proceedings in the trial court pending this decision. Plaintiffs filed a return and demurrer to the petition, and defendants filed a reply. Amicus curiae briefs were also filed in support of plaintiffs from two professional organizations-the American Academy of Clinical Neuropsychology (AACN) and the Inter Organizational Practice Committee (IOPC)- and two publishers of psychological tests-Manson Western, Inc., and Psychological Assessment Resources, Inc. (PAR). Finding no abuse of discretion, we deny writ relief.
Based on Buttram's claim that she suffered a traumatic brain injury, defendants sought to have Buttram submit to a mental examination by a neuropsychologist of their choosing, Tara Victor, Ph.D. The parties, however, could not agree on the ground rules for Dr. Victor's examination. Plaintiffs' counsel refused to stipulate to the examination unless the examining neuropsychologist provided them with all testing materials, raw test data, and an audio recording of the examination. Defendants, however, maintained Dr. Victor was unwilling to transfer those items to plaintiffs' counsel, although she would provide them to a similarly situated expert who was subject to the same professional and ethical duties to which she was subject.
Defendants moved for an order granting leave to conduct a neuropsychological examination of Buttram pursuant to Code of Civil Procedure section 2032.310,[1] without having to provide raw data and copyrighted examination questions to plaintiffs' counsel. Defendants asserted requiring such a disclosure would cause Dr. Victor to violate her ethical and professional duties as a licensed neuropsychologist, and the raw data and examination questions were of no use to plaintiffs' counsel "other than to utilize it improperly to corrupt the process by preparing future clients using the copyrighted questions." Defendants asked the court to order the transfer of data to plaintiffs' retained neuropsychologist, "whoever that is," as plaintiffs needed such an expert to prove Buttram's claim.
In Dr Victor's declaration accompanying the motion, Dr. Victor explained the parameters of the examination and listed the tests she may administer. As pertinent here, Dr. Victor stated "[n]o raw test data, test materials, copyrighted publications, or documents containing proprietary information will be provided to anyone who is not a licensed psychologist," and she would only provide those items to "opposing counsel's retained licensed psychologist expert." Dr. Victor would agree to audio recording of the clinical interview under specified conditions, which included sending a copy of the recording only to the plaintiffs' retained licensed psychology expert.
Dr. Victor stated she would not permit third party observation (TPO) while administering neuropsychological and psychological tests. She explained why she was concerned about TPO, which included: (1) public exposure of test materials compromises the validity of future neuropsychological test results, as examinees must be naive to general test demands and test content; (2) "TPO leads to potential misuse and misinterpretation of tests by untrained TPOs" who do not have a compelling interest in protecting copyrighted test content, whereas psychologists "are ethically bound to protect the security and integrity of test materials and are appropriately trained in administration and interpretation of complex results"; and (3) "TPO increases the likelihood that test content and instructions will be disseminated, which in turn raises the risk that motivated parties will coach and prepare examinees for testing in advance, specifically to influence test results." Dr. Victor asserted the presence of a TPO could conflict with numerous ethical standards set forth in the American Psychological Association (APA)'s "Ethical Principles of Psychologists and Code of Conduct" (APA Ethical Standards), as well as with "several key principles" in the APA's "Specialty Guidelines for Forensic Psychology."
In opposing the motion, plaintiffs asserted they only were seeking to have the raw data from the examination provided to their counsel in addition to plaintiffs' expert. Plaintiffs' counsel offered to sign a protective order making the data available for use only in this case and only for review by counsel's team and experts, with the data to be destroyed at the conclusion of the case, which would be in addition to counsel's duty of confidentiality to Buttram. Plaintiffs asserted Carpenter v. Superior Court (2006) 141 Cal.App.4th 249 (Carpenter) supported providing such materials to counsel subject to a protective order. Plaintiffs also asserted they had a right to an audio recording of the full examination, including cognitive testing, as they had "a right to ensure that the examiner does not overstep his bounds during the examination, and since Plaintiff's counsel cannot be present for it, a full audio recording in addition to the other listed safeguards, is the only way to protect that right."
Plaintiffs pointed out Standard 9.04 of the APA Ethical Standards provides that a patient may authorize the release of raw test data to the patient or other persons identified in the release, and Standard 9.11 of the APA Ethical Standards "only requires that psychologists make 'reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations.'" Plaintiffs claimed the proposal to release the materials to their counsel subject to a protective order regarding use of the materials satisfied Standard 9.11, as plaintiffs' counsel has an ethical obligation not to disclose a client's medically private information, and the protective order would limit the use of the materials to this case and guarantee their destruction at the end of the required retention period. Plaintiffs argued with the protective order in place, California Code of Regulations, title 16, section 1396.3[2] supports a ruling that the raw data and test recordings may be released to Buttram and her counsel, as ...
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