Third-Party Representative to attend and observe DMEs, audio record mental examination and prevent inappropriate DME history

The Code of Civil Procedure for Physical and Mental Examination indicates that the plaintiff attorney may designate a third party representative who shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination. Also, see the article below discussing that a mental examination may be audio recorded under Code of Civil Procedure Section 2032.530(a)–“Defense Medical Examinations Are Not Independent.”

As a Defense Medical Examination nurse observer, I’ve found the following articles useful and I have obtained reprint permission for most of these. Please contact me so I may provide you with copies of those articles that I have reprint permission for.

Gelder, Alan Van. “Defense Medical Exams in Brain-Injury Cases.” Advocate Magazine.

Synopsis— “USE MOTION PRACTICE TO STOP DEFENSE EXPERTS FROM ABUSING THE MMPI2 AND OTHER TESTING IN BRAIN-INJURY CASES. When the defense cites to confidentiality and ethics prohibitions to prevent you from seeing the raw data for their defense mental-exam tests, they are shielding the expert’s work from effective and complete cross-examination. When this happens, the defense cannot then use those same tests as a sword against your client. By raising this sword and shield argument during motion practice over the scope of a defense mental exam, you can potentially force the defense to reveal their raw data, withdraw the tests, or get a court order precluding the use of the tests.” Discusses the implications in traumatic brain injury (TBI) cases, and reviews the Minnesota Multi-Phasic Personality Inventory 2 (MMPI2) with its Fake Bake Scale (FBS) and the Response Bias Scale. (RBS) as well as the Green Word Memory Test. (WMT). Key words: trade secret privilege, symptoms, exaggerating, pretending, somatization (somatoform disorder), mental illness, cognitive problems, formulation to objections to the tests. The author writes, “the authors of the MMPI2 on their website acknowledge that testing questions and answers can be produced with a court order” and also, “Under Evidence Code section 721, subdivision (a), an expert may be crossexamined to the same extent as any other witness and, in addition, may be fully cross-examined as to his or her qualifications, the subject to which their expert testimony relates, and the matter upon which their opinion is based and the reasons for their opinion.

Court Decision Referenced in the Article—Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 272. “In Carpenter, the court rejected claims that the written questions and answers were precluded from discovery due to copyright. The court also rejected the argument that the materials could not be produced to plaintiff ’s counsel in a manner that could protect the integrity of the tests. (Id. at 271-274. [Because the ethics question had not been briefed at the lower court level, the court declined to rule on the ethics objections.].)”

Court Decision Referenced in the Article—Los Angeles County Superior Court in Ruffin v. United States Telepacific Corp., 2018 Cal. Super. LEXIS 4028, *7, relying on Carpenter, ordered that the questions and answers be turned over to plaintiff ’s counsel. “Whether Plaintiff ought to receive such written materials is within the discretion of the court. (Carpenter v. Superior Court (2006) 141 Cal. App.4th 249, 272.) “The court believes that, given the spirit of discovery to facilitate the open exchange of information between parties, Plaintiff ought to receive the written materials she requests after the execution and consonance of a protective order. (Ibid.)”

Court Decision Referenced in the Article— In State v. Jones (2004) 358 N.C. 330, 357 “during direct examination, the defendant’s expert testified that he had an ethical responsibility to ensure the MMPI2 materials were not released to untrained, unqualified individuals. On cross-examination, the prosecution specifically went through multiple questions and statements from the MMPI2 that had been presented to the defendant and reviewed the questions/answers with the defense expert. These questions were read aloud to the jury. (Ibid.)”

Court Decision Referenced in the Article—People v. Henriquez (2018) 4 Cal.5th 1, 26.) “Psychologists and psychiatrists are not immune from this rigorous crossexamination.” (Ibid.; People v. Rodriguez (2014) 58 Cal.4th 587.)

Additional Decisions Reference in the Article (great Article, READ IT)-- Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285. Green v. Superior Court of San Joaquin (1963) 220 Cal.App.2d 121. Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 793.) Fox v. Kramer (2000) 22 Cal.4th 531, 541.)

Summer, Scott H.Z. & Lateiner, Jeremy N. “Keeping it Physical—Enforcing the Discovery Act Limitations of Scope of Discovery in Defense Physical Examinations: Oral Examination or History Taking is Not a Proper Component of CCP Section 2032.220 Examinations.” Consumer Attorneys of California Forum.

Synopsis—"Most defense firms send notices out that purport to require an oral examination or oral history-taking. The code does not provide for such a procedure.” The article, recognizing this fact, discusses Response / Objection suggestions. It goes on to review, “Code of Civil Procedure Section 2032.020 sets forth the authority for physical examinations. Throughout Section 2032, the operative term is always “physical examination.” The very first words in

the statute, for example, state “[a]ny party may obtain discovery ... by means of a physical ... examination ....” (CCP § 2032.020(a).) The objective of statutory interpretation is to ascertain and effectuate legislative intent. (People v. Flores (2003) 30 Cal.4th 1059, 1063.) In determining intent, you look first to the language of the statute giving effect to its “plain meaning.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209.)—i.e. a Physical Examination is NOT a deposition, etcetera.

Court Decision Referenced in the Article—Sharff v. Superior Court of City and County of San Francisco (1955) 44 Cal.2d 508, “Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril.”

Additional Decision Referenced in the Article— Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 745, “the Third District Court of Appeal recognized a “legitimate concern” in forcing the plaintiff to submit to questioning by the defense mental examiner regarding “the facts and circumstances of the accident itself where [the plaintiff] had done so at least twice previously [at deposition and at a previous interview by his own physician, which is described in the medical records].”

Blumberg, John P. “Defense Medical Examinations are Not Independent.” Consumer Attorneys of Los Angeles Advocate Magazine. Discusses the nurse observer role. Reviews that counsel may designate an attorney representative to attend and observe a DME.

Dolan, Christoper B. “Tactical Expert Containment.” Consumer Attorneys of California Forum. “In today’s litigation, the ‘expert’ has become the staple the bread and water of the defense case. To survive, and win, you must understand the tactical approach to expert witnesses at trial.”

Good, Ned. “Preparing for the Defense Medical Exam.” Consumer Attorneys of Los Angeles Advocate Magazine. Exploring the real purpose of a defense medical examination.

Menzies, Karen B. & Drake, Roger. “Defense Medical Exams (DMEs) Practical Way to Limit Physical and Mental Examinations.” Consumer Attorneys of California Forum.

Archer, Steven & Luftman, Amanda. “A Practical Guide to Code of Civil Procedure Section 2032: Taking Control of Defense Medical Examinations.” Consumer Attorneys of Los Angeles Advocate Magazine. Discusses that counsel may designate a third-party representative to attend and record the examination. Reviews assuring that the examination is restricted to the scope of the issue or injury “in controversy” in the litigation, and preventing improper questioning by the examiner.
Kapp, Howard A. “Important Limits on Defense Medical Exams.” Consumer Attorneys of Los Angeles Advocate Magazine. “The 1986 revision of the Discovery Act, especially the redrafted Code of Civil Procedure section 2032, provides powerful and cost-effective methods for materially limiting the nature and scope of almost all defense medical examinations. Most importantly, the typically unnecessarily invasive and shotgun ‘medical history by the defense doctor is no longer permitted.”

Olff, Edward P. D.C. “Reconstructionist in the M.I.S.T.” Consumer Attorneys of California Forum. “An accident can be reconstructed to determine liability and/or cause which is the reason for accident reconstruction, and the reason it was developed in the first place. To determine the injuries to the occupants you are going to need more than the delta-V and the acceleration. Conversely, you cannot merely look at a slightly scraped and damaged bumper and determine that the occupants could not have been injured. Worse yet, is to look at a vehicle with $700 damage and suggest that the occupants could not have been hurt because the damage is under $1000.”

Kapp, Howard A. “Prohibiting Medical Histories During Defense Medical Exams and Other Fancy Stuff.” Consumer Attorneys of California Forum. “Over 10 years ago, I published an article, 1 in which I argued that the defense had no right to request a so-called "medical history" that is, a thinly disguised quasi-deposition during a defense medical examination (DME).”

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Michael Haiby, RN provides the service of defense medical examination observer to plaintiff attorneys. Plaintiff individuals may ask their attorney's office to have their attorney’s office make contact with Michael Haiby, RN for more information on scheduling our DME observer attendance services--only an attorney can give legal advice—CONSULT YOUR ATTORNEY.