The California Court of Appeal just dropped a bombshell for those defending cases involving bodily injury claims that implicate the right to conduct a mental independent medical examination. In Randy’s Trucking, Inc. v. Superior Court (Buttram) (2023) (“Randy’s Trucking”), the court tackled the thorny issue of whether an examined party can demand that raw test data and other confidential materials be sent directly to the party’s attorney, rather than to a licensed neuro-psychologist or equivalent professional (collectively, “neuro/psych expert(s)”). The decision has major implications for the defense community, as most neuro/psych experts refuse to participate in exams if forced to disclose test information to non-experts, due to ethical and copyright concerns. This is a major shift in the legal landscape, potentially preventing defendants from obtaining the mental examinations to which they are entitled as a matter of law, and it remains to be seen how the Supreme Court and/or Legislature will address the issue going forward.
Breaking Down the Controversial Decision: Mental Examination Confidentiality in California
The Randy’s Trucking decision addresses an unsettled area of California law concerning the manner in which mental examinations are conducted. Specifically, the court confronted whether the examined party can insist that raw test data, as well as test materials and/or an audio recording that would reveal such materials (collectively, “test information”) be transmitted to that party’s attorney, rather than to a neuro/psych expert.
One prior case indicated some support for the disclosure to a non-expert of at least some test information, but did so largely based on an insufficient factual showing from the appellant, and ultimately remanded the matter. (See Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 275.) Randy’s Trucking resolved any doubt on the issue, and held that trial courts enjoy broad discretion to order the disclosure of test information directly to opposing attorneys, rather than to neuro/psych experts.
This decision creates major challenges for the defense community, as neuro/psych experts typically withdraw or refuse to be retained if forced to disclose test information to non-experts, given the ethical ramifications and potential copyright liability exposure. As detailed below, the court in Randy’s Trucking rejected such concerns under the facts presented in that case, but they remain a practical problem, at a minimum, and should be addressed by the Supreme Court and/or Legislature.
In this article, we explore the details of the court’s decision and its potential impact on legal proceedings in California.
The Underlying Battle Over Transmission of Test Information in the Randy’s Trucking Case
The case involved a motor vehicle accident in which the plaintiff (“Buttram”) claimed the school bus she was driving was negligently rear-ended by a truck operated by a driver employed by Randy’s Trucking, Inc. Since Buttram claimed a traumatic brain injury and related symptoms, the defendants sought a mental examination by their neuro/psych expert, pursuant to Code of Civil Procedure section 2032.310.
The parties were unable to agree on the parameters of the exam, with the primary dispute concerning Buttram’s insistence that her counsel receive the test information directly from the defendants’ expert, rather than through the neuro/psych expert Buttram had already retained. There was a secondary dispute over whether the entire exam, as opposed to just the clinical interview, could be audio-recorded, but the court addressed that issue mainly in the context of how the audio-recording of the test portion of the exam would reveal certain test information (e.g., verbal questions and answers).
The defense moved to compel the exam without these conditions, noting, among other things, that test information was subject to strict regulatory protection, and was largely copyright-protected, such that its expert could provide the information only to a licensed neuro/psych expert for the opposing side, rather than to an attorney. How this usually worked in practice before this decision was the opposing neuro/psych expert would then transmit the test information to the plaintiff’s attorney. Defense experts typically raised no objection to that procedure since it did not require them to commit any ethical or legal violations. The Randy’s Trucking decision does not address this simple solution and why it was apparently not acceptable to either the trial or appellate courts.
The superior court sided with Buttram, and ordered that the test information be transmitted directly to her attorney subject to a protective order. As a result, the defendants’ neuro/psych expert recused herself, on the basis that providing such information as ordered “would compromise the security of the tests and cause her to violate her professional and ethical duties.” The defendants contacted two other neuro/psych experts, each of whom took the same position. After unsuccessfully moving for reconsideration, the defendants petitioned for a writ of mandate. The Court of Appeal issued an order to show cause, and accepted full briefing on the merits, including from multiple amicus curiae who supported the defendants’ position. The amicus curiae included the American Academy of Clinical Neuropsychology (“AACN”).
The Controversial Decision
The Court of Appeal denied writ relief in an unpublished opinion filed on April 26, 2023, and certified the decision for publication on May 18, 2023. It determined that the superior court’s ruling was neither prohibited, nor compelled, by any statute, meaning it was reserved to the court’s discretion, and that the court did not abuse its discretion under the facts of this case.
The Court of Appeal noted that Code of Civil Procedure section 2032.610 requires the examining party to produce, at the request of the examined party, both (1) a written report of the exam, and (2) copies of reports from any prior exams of the same condition conducted by the same or any other examiner. The court did not view this statute as prohibiting broader disclosures, however, including test information. The court cited Carpenter (though recognized that case did not directly decide the issue presented here), as well as other cases that stand for the general rule that trial courts have “broad discretion in discovery matters.” It did not, however, cite the long-standing rule that “courts lack the power to order discovery beyond that permitted by the statutes.” This quote can be found, among other places, in Haniff v. Superior Court (2017) 9 Cal.App.5th 191, 199, a case the court did cite, though only to summarize a basic rule of appellate review.
Nor was the court persuaded by Roe v. Superior Court (2015) 243 Cal.App.4th 138, cited by the defendants, a case that rejected the notion that section 2032.610 requires the production of at least certain test information (namely, questions and answers). (Id. at pp. 147-48.) The court reasoned that Roe seemed to be based more on the petitioner’s insufficient showing of irreparable harm, as required to warrant writ relief in that case, and therefore did not view the decision as dispositive. The court then concluded that trial courts have discretion to order the disclosure of test information to non-experts, and proceeded to evaluate whether the trial court abused that discretion here.
In finding no abuse of discretion, the court first noted that the defendants had not explained how the trial court’s protective order did not ameliorate their concerns regarding violation of copyright laws and ethical standards. The court noted how those concerns were outweighed by Buttram’s right to take discovery and cross-examine defense experts. This reasoning seems to overlook that Buttram’s expert could have provided the test information to her counsel, thus alleviating any perceived prejudice on this issue; the concern on the part of the defense expert was with having to herself produce the test information directly to Buttram’s attorney.
With respect to ethical standards that require the strict protection of test materials (including that they not be disclosed to non-experts), the court found that none of them specifically prohibited the production of test materials if ordered by a court (and, particularly, if a protective order is in place). The court also noted that Standard 9.04 from the American Psychological Association Ethical Standards seems to permit the disclosure of raw data, at least, when required by “court order.” The defendants explained, however, that the AACN has taken the position that this Standard conflicts with HIPAA requirements.
In affirming also the denial of reconsideration, the Court of Appeal left the window open slightly for defendants in future cases to demonstrate an abuse of discretion by trial judges who order the disclosure of test information to non-experts. Specifically, the court noted how the AACN advises that an expert faced with a court order that he or she believes undermines test security can demonstrate, “through canvassing of other local neuropsychologists, that the broader neuropsychology community refuses to conduct exams under invasive parameters that threaten the validity of the assessment process.”
The court noted that the defendants in this case had consulted with two additional neuro/psych experts, both of whom refused to conduct the exam as ordered. The Court of Appeal agreed with the trial judge’s reasoning that this was “hardly a canvas.” As such, the court found no abuse of discretion. Still, the Court of Appeal noted near the conclusion of its opinion that it remained possible the defense could bring a renewed motion for reconsideration after conducting a more thorough canvas. It stressed that “the trial court has not foreclosed future relief should defendants be unable to locate a neuropsychologist that will comply with the transmission order.”
The opinion concludes with the court rejecting concerns raised by the AACN and other amicus curiae, refusing to consider 22 declarations submitted by neuro/psych experts in another case pending in Los Angeles Superior Court addressing the identical issue (as well as two more declarations submitted with the defendants’ reply brief), and ultimately stating that it is up to the Legislature to determine whether there should be a bright-line rule prohibiting this type of disclosure. Once again, however, the Court of Appeal did not address the rule that the Legislature’s silence on a discovery issue is generally viewed as prohibiting such discovery.
Challenging the Erroneous Ruling: Practice Pointers for the Defense
The Randy’s Trucking decision is in conflict with established rules for the interpretation of discovery statutes, the ethical and legal standards that apply to neuro/psych experts, and the Supreme Court’s admonition that, when a plaintiff sufficiently places his or her mental state at issue, “the examiner should have the freedom to probe deeply into the plaintiff’s psyche without interference by a third party.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 844-45.) The decision has already been seized upon by the plaintiff’s bar to seek to impose similar conditions on mental exams going forward, in efforts to thwart defendants’ statutory rights to conduct such exams.
The Supreme Court should correct this erroneous decision so that defendants do not suffer the irreparable harm of losing their rights to conduct mental examinations. Subjecting defendants to that deprivation of rights, simply in the name of allowing plaintiffs’ attorneys to receive test information directly from defense experts, is unjust, and also unnecessary, since plaintiffs can receive the information through their own experts. Unless and until the Supreme Court or Legislature correct this situation, the defense community should pursue the slim ray of hope outlined near the end of the opinion, and conduct extensive canvasing of neuro/psych experts to demonstrate that none can comply with orders like this, in hopes future appellate courts may find an abuse of discretion from any similar disclosure orders.