Preview
1 Robert L. Sallander, Esq., (SBN 118352)
rsallander@gpsllp.com
2 Helen H. Chen, Esq., (SBN 213150)
hchen@gpsllp.com
3 GREENAN, PEFFER, SALLANDER & LALLY LLP
2000 Crow Canyon Place, Suite 380
4 San Ramon, California 94583
Telephone: (925) 866-1000
5 Facsimile: (925) 830-8787
6 Attorneys for Defendant(s)
THOMSON INTERNATIONAL, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN - BAKERSFIELD DISTRICT
10
11 PHILIP McLAUGHLIN AND ALYSSA Case No.: BCV-22-101437
HESS,
12 SEPARATE STATEMENT OF THOMSON
Plaintiff(s), INTERNATIONAL, INC.’S MOTION TO
13 COMPEL PLAINTIFFS’ RESPONSES TO
v. SPECIAL INTERROGATORIES, SET
14 ONE
THOMSON INTERNATIONAL,
15 INCORPORATED, a California Corporation, Date: April 3, 2023
et al., Time: 8:30 a.m.
16 Dept: 17
Defendants.
17 Judge: Hon. Thomas S. Clark
18
19 Date Action Filed: June 10, 2022
Trial Date: None Set
20
21 Pursuant to Rule 3.1345 of the California Rules of Court, Defendant THOMSON
22 INTERNATIONAL, INC. submits the following Separate Statement to Special Interrogatories,
23 Set One, for which Defendant seeks a further response. The following are the Interrogatories and
24 Requests, verbatim, the response received, verbatim, and the reason why further responses
25 should be compelled.
26 ///
27 ///
28
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 DEFENDANT’S SPECIAL INTERROGATORIES, SET ONE
2 DEFENDANT’S SPECIAL INTERROGATORY NO. 15:
3 Please identify all facts upon which support YOUR claim that the alleged contaminated
4 onions as referenced in the complaint were provided by Defendant.
5 Plaintiff Philip McLaughlin’s Response:
6
7 Legal Authority in Support of Further Response:
8 Code of Civil Procedure § 2030.290 provides that:
9
If a party to whom interrogatories are directed fails to serve a
10
timely response, the following rules apply:
11 (a) The party to whom the interrogatories are directed waives any
right to exercise the option to produce writings under Section
12 2030.230, as well as any objection to the interrogatories, including
one based on privilege or on the protection for work product under
13 Chapter 4 (commencing with Section 2018.010). The court, on
motion, may relieve that party from this waiver on its
14
determination that both of the following conditions are satisfied:
15 (1) The party has subsequently served a response that is in
substantial compliance with Sections 2030.210, 2030.220,
16 2030.230, and 2030.240.
(2) The party’s failure to serve a timely response was the result of
17 mistake, inadvertence, or excusable neglect.
18 (b) The party propounding the interrogatories may move for an
order compelling response to the interrogatories.
19 (c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
20 attorney who unsuccessfully makes or opposes a motion to compel
a response to interrogatories, unless it finds that the one subject to
21 the sanction acted with substantial justification or that other
22 circumstances make the imposition of the sanction unjust. If a
party then fails to obey an order compelling answers, the court may
23 make those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under
24 Chapter 7 (commencing with Section 2023.010). In lieu of or in
addition to that sanction, the court may impose a monetary
25 sanction under Chapter 7 (commencing with Section 2023.010).
26 C. Civ. Proc. § 2030.290.
27
28 2
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 Plaintiff failed to respond to special interrogatory no. 15. Moreover, despite multiple meet &
2 confer attempts and extensions, plaintiff still has not provided verified responses. Plaintiff has
3 waived all objections including those based on privilege and work product protection. C. Civ.
4 Proc. § 2030.290(a). Plaintiff must be compelled to respond to no. 15. C. Civ. Proc. §
5 2030.290(b).
6 DEFENDANT’S SPECIAL INTERROGATORY NO. 21:
7 Please identify all of YOUR psychological and psychiatric care providers in the past ten
8 years. Please identify the full name, telephone number and address of each provider.
9 Plaintiff Philip McLaughlin’s Response
10 Plaintiff objects to this interrogatory as irrelevant and overbroad as to time and the nature
11 of treatment, and therefore constitutes a fishing expedition into Plaintiff’s private mental state.
12 Psychological and psychiatric records are not relevant to Plaintiffs Salmonella infection. Plaintiff
13 will not provide this information absent a court order.
14 Legal Authority in Support of Further Response:
15 Under Code of Civil Procedure § 2030.300, a party may move for a motion to compel
16 further responses if the answer is evasive or incomplete, or an objection to an interrogatory is
17 without merit. Code Civ. Proc. § 2030.300(a)(1), (3). Here, plaintiffs’ objections to special
18 interrogatory no. 21 are without merit. Plaintiffs must identify their psychological and
19 psychiatric care providers in the last ten years.
20 1. Plaintiffs Have Put Their Mental Health Conditions At Issue
21 Plaintiffs’ past mental health records are discoverable. Both plaintiffs have put their
22 mental health conditions in issue by seeking damages for psychological care. (Exh. 1 to Chen
23 Decl.) Plaintiff McLaughlin further alleged that he experienced increased anxiety, and sought
24 more than $500,000 in damages including emotional distress damages. (Exh. 6 & 7 to Chen
25 Decl.) Plaintiffs have put their past and present mental state in controversy by alleging damages
26 for psychological care and emotional distress. Plaintiffs have waived their right of privacy to
27 potentially relevant psychological and psychiatric care records by filing this action. All
28 3
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 psychological and psychiatric records relating to the claimed damages are thus discoverable.
2 Evid. C. § 996.
3 California Evidence Code § 1016 states in part that: “There is no privilege under this
4 article as to a communication relevant to an issue concerning the mental or emotional condition
5 of the patient if such issue has been tendered by: (a) The patient; . . .” Evid. C. § 1016(a).
6 California courts have held that the mere commencement of an action by a patient-litigant
7 was not an automatic waiver of the psychotherapist-patient privilege under Evidence Code §
8 1016(a). Boling v. Sup. Ct. (1980) 105 Cal. App. 3d 430, 438. However, a patient-litigant
9 waives the privilege if the records are “‘relevant to an issue concerning the mental or emotional
10 condition of the patient’ which has been ‘tendered’ in the action.” Id. at 442 (internal citations
11 omitted). Plaintiff has the burden of showing “irrelevancy” of the records. Boling, supra, 105
12 Cal. App. 3d at 438.
13 Courts have applied the patient-litigant exception to personal injury cases “in which the
14 plaintiff tenders his physical or emotional condition as an issue by seeking damages for what he
15 contends are physical or emotional injuries.” Simek v. Sup. Ct. (1981) 117 Cal. App. 3d 169, 174
16 (internal citations omitted). As the California Supreme Court has found, “when a party places
17 his own mental state in controversy by alleging mental and emotional distress”, he “can hardly
18 deny his mental state is in controversy.” Vinson v. Sup. Ct. (1987) 43 Cal. 3d 833, 839
19 (emphasis original).
20 In Vinson, plaintiff accused defendants of causing her mental and emotional ailments in a
21 wrongful termination and sexual harassment lawsuit. Id. at 837. The court found that by
22 claiming continuing emotional distress from sexual harassment or discrimination, plaintiff has
23 waived her privacy right as to her mental and emotional condition and its cause, but not her right
24 to sexual privacy and sexual history. Id. at 842.
25 In the case at bar, plaintiffs pleaded damages for psychological care and emotional
26 distress. By so pleading, plaintiffs tendered their mental conditions as an issue by seeking
27 damages for what they contended are emotional distress. Even if plaintiffs did not seek
28 4
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 psychological care related to illnesses caused by Salmonella, they must identify the
2 psychological and psychiatric care providers in the past ten years. Any records that may
3 demonstrate pre-existing conditions or chronic lifestyle choices or conduct that impact plaintiff’s
4 mental or medical conditions are also relevant to plaintiffs’ psychological care and emotional
5 distress damages claim. Plaintiffs’ past mental and emotional conditions are directly relevant to
6 the determination of whether their emotional or mental distress can be properly attributed to the
7 alleged foodborne illness. The past mental health records are relevant to impeach plaintiffs’
8 discovery responses that they were not aware of any mental and emotional disabilities they had
9 before consumption of onions and did not sustain injuries of the kind for which they are now
10 claiming damages. In conclusion, the past mental health records are essential to a fair resolution
11 of plaintiffs’ suit.
12 Because plaintiffs have placed in issue their mental conditions, and the mental health
13 records are relevant to their mental health conditions, plaintiffs have waived the patient-
14 psychiatrist privilege, and their privacy right as to mental and emotional condition and its cause.
15 The patient-litigant exception is therefore applicable to this case.
16 2. Defendant Is Entitled to All of Plaintiff’s Mental Health Records
17 In Britt v. Sup. Ct. (1978) 20 Cal. 3d 844, 849, plaintiff homeowners sought damages
18 from defendant airport owner for diminution of property values, personal injuries, emotional
19 disturbance allegedly caused by the noise, vibrations, air pollution and smoke associated with
20 defendant’s operation of the airfield. The California Supreme Court emphasized that plaintiffs
21 “may not withhold information which relates to any physical or mental condition which they
22 have put in issue by bringing this lawsuit”. Id. at 864. The court found that plaintiffs were
23 obligated to disclose all medical information relating to a medical condition and could not limit
24 discovery simply to the incidents which have allegedly impaired their condition. Id. at 864, fn.
25 9. As noted by the court,
insofar as a number of injuries or illnesses, some related and some
26
unrelated to the airport operations, have contributed to a medical
27 condition placed in issue by a plaintiff, defendant is entitled to
obtain information as to all such injuries or illnesses. Thus, for
28 5
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 example, if a plaintiff claims that the airport operations have
damaged his respiratory system, plaintiff would be obliged to
2
disclose all medical information relating to his respiratory
3 condition and could not limit discovery simply to those airport-
related incidents which have allegedly impaired his condition. Id.
4
5 Under Britt, plaintiffs’ past mental health history not caused by a foodborne illness are
6 also relevant to their claim for psychological care and emotional distress damages. Plaintiffs
7 could not limit discovery of their mental health records to the food contamination incident which
8 has allegedly impaired their mental and emotional conditions. Because plaintiff have placed in
9 issue their mental and emotional condition, defendant is entitled to obtain information as to all of
10 plaintiffs’ mental and emotional impairments, regardless of whether such injuries were caused by
11 a foodborne illness.
12 DEFENDANT’S SPECIAL INTERROGATORY NO. 15:
13 Please identify all facts upon which support YOUR claim that the alleged contaminated
14 onions as referenced in the complaint were provided by Defendant.
15 Plaintiff Alyssa Hess’s Response:
16
17 Legal Authority in Support of Further Response:
18 Code of Civil Procedure § 2030.290 provides that:
19
If a party to whom interrogatories are directed fails to serve a
20 timely response, the following rules apply:
(a) The party to whom the interrogatories are directed waives any
21
right to exercise the option to produce writings under Section
22 2030.230, as well as any objection to the interrogatories, including
one based on privilege or on the protection for work product under
23 Chapter 4 (commencing with Section 2018.010). The court, on
motion, may relieve that party from this waiver on its
24 determination that both of the following conditions are satisfied:
(1) The party has subsequently served a response that is in
25
substantial compliance with Sections 2030.210, 2030.220,
26 2030.230, and 2030.240.
(2) The party’s failure to serve a timely response was the result of
27 mistake, inadvertence, or excusable neglect.
28 6
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 (b) The party propounding the interrogatories may move for an
order compelling response to the interrogatories.
2
(c) The court shall impose a monetary sanction under Chapter 7
3 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
4 a response to interrogatories, unless it finds that the one subject to
the sanction acted with substantial justification or that other
5 circumstances make the imposition of the sanction unjust. If a
party then fails to obey an order compelling answers, the court may
6
make those orders that are just, including the imposition of an issue
7 sanction, an evidence sanction, or a terminating sanction under
Chapter 7 (commencing with Section 2023.010). In lieu of or in
8 addition to that sanction, the court may impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010).
9 C. Civ. Proc. § 2030.290.
10 Plaintiff failed to respond to special interrogatory no. 15. Moreover, despite multiple
11 meet & confer attempts and extensions, plaintiff still has not provided verified responses.
12
Plaintiff has waived all objections including those based on privilege and work product
13
protection. C. Civ. Proc. § 2030.290(a). Plaintiff must be compelled to respond to no. 15. C.
14
Civ. Proc. § 2030.290(b).
15
16 DEFENDANT’S SPECIAL INTERROGATORY NO. 21:
17 Please identify all of YOUR psychological and psychiatric care providers in the past ten
18 years. Please identify the full name, telephone number and address of each provider.
19 Plaintiff Alyssa Hess’s Response:
20 Plaintiff objects to this interrogatory as irrelevant and overbroad as to time and the nature
21 of treatment, and therefore constitutes a fishing expedition into Plaintiff’s private mental
22 state. Psychological and psychiatric records are not relevant to Plaintiff’s Salmonella
23 infection. Plaintiff will not provide this information absent a court order.
24 Legal Authority in Support of Further Response:
25 Under Code of Civil Procedure § 2030.300, a party may move for a motion to compel
26 further responses if the answer is evasive or incomplete, or an objection to an interrogatory is
27 without merit. Code Civ. Proc. § 2030.300(a)(1), (3). Here, plaintiffs’ objections to special
28 7
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 interrogatory no. 21 are without merit. Plaintiffs must identify their psychological and
2 psychiatric care providers in the last ten years.
3 1. Plaintiffs Have Put Their Mental Health Conditions At Issue
4 Plaintiffs’ past mental health records are discoverable. Both plaintiffs have put their
5 mental health conditions in issue by seeking damages for psychological care. (Exh. 1 to Chen
6 Decl.) Plaintiff McLaughlin further alleged that he experienced increased anxiety, and sought
7 more than $500,000 in damages including emotional distress damages. (Exh. 6 & 7 to Chen
8 Decl.) Plaintiffs have put their past and present mental state in controversy by alleging damages
9 for psychological care and emotional distress. Plaintiffs have waived their right of privacy to
10 potentially relevant psychological and psychiatric care records by filing this action. All
11 psychological and psychiatric records relating to the claimed damages are thus discoverable.
12 Evid. C. § 996.
13 California Evidence Code § 1016 states in part that: “There is no privilege under this
14 article as to a communication relevant to an issue concerning the mental or emotional condition
15 of the patient if such issue has been tendered by: (a) The patient; . . .” Evid. C. § 1016(a).
16 California courts have held that the mere commencement of an action by a patient-litigant
17 was not an automatic waiver of the psychotherapist-patient privilege under Evidence Code §
18 1016(a). Boling v. Sup. Ct. (1980) 105 Cal. App. 3d 430, 438. However, a patient-litigant
19 waives the privilege if the records are “‘relevant to an issue concerning the mental or emotional
20 condition of the patient’ which has been ‘tendered’ in the action.” Id. at 442 (internal citations
21 omitted). Plaintiff has the burden of showing “irrelevancy” of the records. Boling, supra, 105
22 Cal. App. 3d at 438.
23 Courts have applied the patient-litigant exception to personal injury cases “in which the
24 plaintiff tenders his physical or emotional condition as an issue by seeking damages for what he
25 contends are physical or emotional injuries.” Simek v. Sup. Ct. (1981) 117 Cal. App. 3d 169, 174
26 (internal citations omitted). As the California Supreme Court has found, “when a party places
27 his own mental state in controversy by alleging mental and emotional distress”, he “can hardly
28 8
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 deny his mental state is in controversy.” Vinson v. Sup. Ct. (1987) 43 Cal. 3d 833, 839
2 (emphasis original).
3 In Vinson, plaintiff accused defendants of causing her mental and emotional ailments in a
4 wrongful termination and sexual harassment lawsuit. Id. at 837. The court found that by
5 claiming continuing emotional distress from sexual harassment or discrimination, plaintiff has
6 waived her privacy right as to her mental and emotional condition and its cause, but not her right
7 to sexual privacy and sexual history. Id. at 842.
8 In the case at bar, plaintiffs pleaded damages for psychological care and emotional
9 distress. By so pleading, plaintiffs tendered their mental conditions as an issue by seeking
10 damages for what they contended are emotional distress. Even if plaintiffs did not seek
11 psychological care related to illnesses caused by Salmonella, they must identify the
12 psychological and psychiatric care providers in the past ten years. Any records that may
13 demonstrate pre-existing conditions or chronic lifestyle choices or conduct that impact plaintiff’s
14 mental or medical conditions are also relevant to plaintiffs’ psychological care and emotional
15 distress damages claim. Plaintiffs’ past mental and emotional conditions are directly relevant to
16 the determination of whether their emotional or mental distress can be properly attributed to the
17 alleged foodborne illness. The past mental health records are relevant to impeach plaintiffs’
18 discovery responses that they were not aware of any mental and emotional disabilities they had
19 before consumption of onions and did not sustain injuries of the kind for which they are now
20 claiming damages. In conclusion, the past mental health records are essential to a fair resolution
21 of plaintiffs’ suit.
22 Because plaintiffs have placed in issue their mental conditions, and the mental health
23 records are relevant to their mental health conditions, plaintiffs have waived the patient-
24 psychiatrist privilege, and their privacy right as to mental and emotional condition and its cause.
25 The patient-litigant exception is therefore applicable to this case.
26 ///
27 ///
28 9
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
1 2. Defendant Is Entitled to All of Plaintiff’s Mental Health Records
2 In Britt v. Sup. Ct. (1978) 20 Cal. 3d 844, 849, plaintiff homeowners sought damages
3 from defendant airport owner for diminution of property values, personal injuries, emotional
4 disturbance allegedly caused by the noise, vibrations, air pollution and smoke associated with
5 defendant’s operation of the airfield. The California Supreme Court emphasized that plaintiffs
6 “may not withhold information which relates to any physical or mental condition which they
7 have put in issue by bringing this lawsuit”. Id. at 864. The court found that plaintiffs were
8 obligated to disclose all medical information relating to a medical condition and could not limit
9 discovery simply to the incidents which have allegedly impaired their condition. Id. at 864, fn.
10 9. As noted by the court,
insofar as a number of injuries or illnesses, some related and some
11
unrelated to the airport operations, have contributed to a medical
12 condition placed in issue by a plaintiff, defendant is entitled to
obtain information as to all such injuries or illnesses. Thus, for
13 example, if a plaintiff claims that the airport operations have
damaged his respiratory system, plaintiff would be obliged to
14 disclose all medical information relating to his respiratory
condition and could not limit discovery simply to those airport-
15
related incidents which have allegedly impaired his condition. Id.
16 Under Britt, plaintiffs’ past mental health history not caused by a foodborne illness are
17 also relevant to their claim for psychological care and emotional distress damages. Plaintiffs
18 could not limit discovery of their mental health records to the food contamination incident which
19 has allegedly impaired their mental and emotional conditions. Because plaintiff have placed in
20 issue their mental and emotional condition, defendant is entitled to obtain information as to all of
21 plaintiffs’ mental and emotional impairments, regardless of whether such injuries were caused by
22 a foodborne illness.
23
Dated: March 3, 2023 GREENAN, PEFFER, SALLANDER & LALLY LLP
24
25
By:
26 Robert L. Sallander, Esq.
Helen H. Chen, Esq.
27 Attorneys for Defendant
THOMSON INTERNATIONAL, INC.
28 10
SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437
MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL
INTERROGATORIES, SET ONE
Preview
1 Robert L. Sallander, Esq., (SBN 118352) rsallander@gpsllp.com 2 Helen H. Chen, Esq., (SBN 213150) hchen@gpsllp.com 3 GREENAN, PEFFER, SALLANDER & LALLY LLP 2000 Crow Canyon Place, Suite 380 4 San Ramon, California 94583 Telephone: (925) 866-1000 5 Facsimile: (925) 830-8787 6 Attorneys for Defendant(s) THOMSON INTERNATIONAL, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN - BAKERSFIELD DISTRICT 10 11 PHILIP McLAUGHLIN AND ALYSSA Case No.: BCV-22-101437 HESS, 12 SEPARATE STATEMENT OF THOMSON Plaintiff(s), INTERNATIONAL, INC.’S MOTION TO 13 COMPEL PLAINTIFFS’ RESPONSES TO v. SPECIAL INTERROGATORIES, SET 14 ONE THOMSON INTERNATIONAL, 15 INCORPORATED, a California Corporation, Date: April 3, 2023 et al., Time: 8:30 a.m. 16 Dept: 17 Defendants. 17 Judge: Hon. Thomas S. Clark 18 19 Date Action Filed: June 10, 2022 Trial Date: None Set 20 21 Pursuant to Rule 3.1345 of the California Rules of Court, Defendant THOMSON 22 INTERNATIONAL, INC. submits the following Separate Statement to Special Interrogatories, 23 Set One, for which Defendant seeks a further response. The following are the Interrogatories and 24 Requests, verbatim, the response received, verbatim, and the reason why further responses 25 should be compelled. 26 /// 27 /// 28 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 DEFENDANT’S SPECIAL INTERROGATORIES, SET ONE 2 DEFENDANT’S SPECIAL INTERROGATORY NO. 15: 3 Please identify all facts upon which support YOUR claim that the alleged contaminated 4 onions as referenced in the complaint were provided by Defendant. 5 Plaintiff Philip McLaughlin’s Response: 6 7 Legal Authority in Support of Further Response: 8 Code of Civil Procedure § 2030.290 provides that: 9 If a party to whom interrogatories are directed fails to serve a 10 timely response, the following rules apply: 11 (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 12 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under 13 Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its 14 determination that both of the following conditions are satisfied: 15 (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 16 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of 17 mistake, inadvertence, or excusable neglect. 18 (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. 19 (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or 20 attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to 21 the sanction acted with substantial justification or that other 22 circumstances make the imposition of the sanction unjust. If a party then fails to obey an order compelling answers, the court may 23 make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under 24 Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary 25 sanction under Chapter 7 (commencing with Section 2023.010). 26 C. Civ. Proc. § 2030.290. 27 28 2 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 Plaintiff failed to respond to special interrogatory no. 15. Moreover, despite multiple meet & 2 confer attempts and extensions, plaintiff still has not provided verified responses. Plaintiff has 3 waived all objections including those based on privilege and work product protection. C. Civ. 4 Proc. § 2030.290(a). Plaintiff must be compelled to respond to no. 15. C. Civ. Proc. § 5 2030.290(b). 6 DEFENDANT’S SPECIAL INTERROGATORY NO. 21: 7 Please identify all of YOUR psychological and psychiatric care providers in the past ten 8 years. Please identify the full name, telephone number and address of each provider. 9 Plaintiff Philip McLaughlin’s Response 10 Plaintiff objects to this interrogatory as irrelevant and overbroad as to time and the nature 11 of treatment, and therefore constitutes a fishing expedition into Plaintiff’s private mental state. 12 Psychological and psychiatric records are not relevant to Plaintiffs Salmonella infection. Plaintiff 13 will not provide this information absent a court order. 14 Legal Authority in Support of Further Response: 15 Under Code of Civil Procedure § 2030.300, a party may move for a motion to compel 16 further responses if the answer is evasive or incomplete, or an objection to an interrogatory is 17 without merit. Code Civ. Proc. § 2030.300(a)(1), (3). Here, plaintiffs’ objections to special 18 interrogatory no. 21 are without merit. Plaintiffs must identify their psychological and 19 psychiatric care providers in the last ten years. 20 1. Plaintiffs Have Put Their Mental Health Conditions At Issue 21 Plaintiffs’ past mental health records are discoverable. Both plaintiffs have put their 22 mental health conditions in issue by seeking damages for psychological care. (Exh. 1 to Chen 23 Decl.) Plaintiff McLaughlin further alleged that he experienced increased anxiety, and sought 24 more than $500,000 in damages including emotional distress damages. (Exh. 6 & 7 to Chen 25 Decl.) Plaintiffs have put their past and present mental state in controversy by alleging damages 26 for psychological care and emotional distress. Plaintiffs have waived their right of privacy to 27 potentially relevant psychological and psychiatric care records by filing this action. All 28 3 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 psychological and psychiatric records relating to the claimed damages are thus discoverable. 2 Evid. C. § 996. 3 California Evidence Code § 1016 states in part that: “There is no privilege under this 4 article as to a communication relevant to an issue concerning the mental or emotional condition 5 of the patient if such issue has been tendered by: (a) The patient; . . .” Evid. C. § 1016(a). 6 California courts have held that the mere commencement of an action by a patient-litigant 7 was not an automatic waiver of the psychotherapist-patient privilege under Evidence Code § 8 1016(a). Boling v. Sup. Ct. (1980) 105 Cal. App. 3d 430, 438. However, a patient-litigant 9 waives the privilege if the records are “‘relevant to an issue concerning the mental or emotional 10 condition of the patient’ which has been ‘tendered’ in the action.” Id. at 442 (internal citations 11 omitted). Plaintiff has the burden of showing “irrelevancy” of the records. Boling, supra, 105 12 Cal. App. 3d at 438. 13 Courts have applied the patient-litigant exception to personal injury cases “in which the 14 plaintiff tenders his physical or emotional condition as an issue by seeking damages for what he 15 contends are physical or emotional injuries.” Simek v. Sup. Ct. (1981) 117 Cal. App. 3d 169, 174 16 (internal citations omitted). As the California Supreme Court has found, “when a party places 17 his own mental state in controversy by alleging mental and emotional distress”, he “can hardly 18 deny his mental state is in controversy.” Vinson v. Sup. Ct. (1987) 43 Cal. 3d 833, 839 19 (emphasis original). 20 In Vinson, plaintiff accused defendants of causing her mental and emotional ailments in a 21 wrongful termination and sexual harassment lawsuit. Id. at 837. The court found that by 22 claiming continuing emotional distress from sexual harassment or discrimination, plaintiff has 23 waived her privacy right as to her mental and emotional condition and its cause, but not her right 24 to sexual privacy and sexual history. Id. at 842. 25 In the case at bar, plaintiffs pleaded damages for psychological care and emotional 26 distress. By so pleading, plaintiffs tendered their mental conditions as an issue by seeking 27 damages for what they contended are emotional distress. Even if plaintiffs did not seek 28 4 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 psychological care related to illnesses caused by Salmonella, they must identify the 2 psychological and psychiatric care providers in the past ten years. Any records that may 3 demonstrate pre-existing conditions or chronic lifestyle choices or conduct that impact plaintiff’s 4 mental or medical conditions are also relevant to plaintiffs’ psychological care and emotional 5 distress damages claim. Plaintiffs’ past mental and emotional conditions are directly relevant to 6 the determination of whether their emotional or mental distress can be properly attributed to the 7 alleged foodborne illness. The past mental health records are relevant to impeach plaintiffs’ 8 discovery responses that they were not aware of any mental and emotional disabilities they had 9 before consumption of onions and did not sustain injuries of the kind for which they are now 10 claiming damages. In conclusion, the past mental health records are essential to a fair resolution 11 of plaintiffs’ suit. 12 Because plaintiffs have placed in issue their mental conditions, and the mental health 13 records are relevant to their mental health conditions, plaintiffs have waived the patient- 14 psychiatrist privilege, and their privacy right as to mental and emotional condition and its cause. 15 The patient-litigant exception is therefore applicable to this case. 16 2. Defendant Is Entitled to All of Plaintiff’s Mental Health Records 17 In Britt v. Sup. Ct. (1978) 20 Cal. 3d 844, 849, plaintiff homeowners sought damages 18 from defendant airport owner for diminution of property values, personal injuries, emotional 19 disturbance allegedly caused by the noise, vibrations, air pollution and smoke associated with 20 defendant’s operation of the airfield. The California Supreme Court emphasized that plaintiffs 21 “may not withhold information which relates to any physical or mental condition which they 22 have put in issue by bringing this lawsuit”. Id. at 864. The court found that plaintiffs were 23 obligated to disclose all medical information relating to a medical condition and could not limit 24 discovery simply to the incidents which have allegedly impaired their condition. Id. at 864, fn. 25 9. As noted by the court, insofar as a number of injuries or illnesses, some related and some 26 unrelated to the airport operations, have contributed to a medical 27 condition placed in issue by a plaintiff, defendant is entitled to obtain information as to all such injuries or illnesses. Thus, for 28 5 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 example, if a plaintiff claims that the airport operations have damaged his respiratory system, plaintiff would be obliged to 2 disclose all medical information relating to his respiratory 3 condition and could not limit discovery simply to those airport- related incidents which have allegedly impaired his condition. Id. 4 5 Under Britt, plaintiffs’ past mental health history not caused by a foodborne illness are 6 also relevant to their claim for psychological care and emotional distress damages. Plaintiffs 7 could not limit discovery of their mental health records to the food contamination incident which 8 has allegedly impaired their mental and emotional conditions. Because plaintiff have placed in 9 issue their mental and emotional condition, defendant is entitled to obtain information as to all of 10 plaintiffs’ mental and emotional impairments, regardless of whether such injuries were caused by 11 a foodborne illness. 12 DEFENDANT’S SPECIAL INTERROGATORY NO. 15: 13 Please identify all facts upon which support YOUR claim that the alleged contaminated 14 onions as referenced in the complaint were provided by Defendant. 15 Plaintiff Alyssa Hess’s Response: 16 17 Legal Authority in Support of Further Response: 18 Code of Civil Procedure § 2030.290 provides that: 19 If a party to whom interrogatories are directed fails to serve a 20 timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any 21 right to exercise the option to produce writings under Section 22 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under 23 Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its 24 determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in 25 substantial compliance with Sections 2030.210, 2030.220, 26 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of 27 mistake, inadvertence, or excusable neglect. 28 6 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. 2 (c) The court shall impose a monetary sanction under Chapter 7 3 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 4 a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other 5 circumstances make the imposition of the sanction unjust. If a party then fails to obey an order compelling answers, the court may 6 make those orders that are just, including the imposition of an issue 7 sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in 8 addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). 9 C. Civ. Proc. § 2030.290. 10 Plaintiff failed to respond to special interrogatory no. 15. Moreover, despite multiple 11 meet & confer attempts and extensions, plaintiff still has not provided verified responses. 12 Plaintiff has waived all objections including those based on privilege and work product 13 protection. C. Civ. Proc. § 2030.290(a). Plaintiff must be compelled to respond to no. 15. C. 14 Civ. Proc. § 2030.290(b). 15 16 DEFENDANT’S SPECIAL INTERROGATORY NO. 21: 17 Please identify all of YOUR psychological and psychiatric care providers in the past ten 18 years. Please identify the full name, telephone number and address of each provider. 19 Plaintiff Alyssa Hess’s Response: 20 Plaintiff objects to this interrogatory as irrelevant and overbroad as to time and the nature 21 of treatment, and therefore constitutes a fishing expedition into Plaintiff’s private mental 22 state. Psychological and psychiatric records are not relevant to Plaintiff’s Salmonella 23 infection. Plaintiff will not provide this information absent a court order. 24 Legal Authority in Support of Further Response: 25 Under Code of Civil Procedure § 2030.300, a party may move for a motion to compel 26 further responses if the answer is evasive or incomplete, or an objection to an interrogatory is 27 without merit. Code Civ. Proc. § 2030.300(a)(1), (3). Here, plaintiffs’ objections to special 28 7 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 interrogatory no. 21 are without merit. Plaintiffs must identify their psychological and 2 psychiatric care providers in the last ten years. 3 1. Plaintiffs Have Put Their Mental Health Conditions At Issue 4 Plaintiffs’ past mental health records are discoverable. Both plaintiffs have put their 5 mental health conditions in issue by seeking damages for psychological care. (Exh. 1 to Chen 6 Decl.) Plaintiff McLaughlin further alleged that he experienced increased anxiety, and sought 7 more than $500,000 in damages including emotional distress damages. (Exh. 6 & 7 to Chen 8 Decl.) Plaintiffs have put their past and present mental state in controversy by alleging damages 9 for psychological care and emotional distress. Plaintiffs have waived their right of privacy to 10 potentially relevant psychological and psychiatric care records by filing this action. All 11 psychological and psychiatric records relating to the claimed damages are thus discoverable. 12 Evid. C. § 996. 13 California Evidence Code § 1016 states in part that: “There is no privilege under this 14 article as to a communication relevant to an issue concerning the mental or emotional condition 15 of the patient if such issue has been tendered by: (a) The patient; . . .” Evid. C. § 1016(a). 16 California courts have held that the mere commencement of an action by a patient-litigant 17 was not an automatic waiver of the psychotherapist-patient privilege under Evidence Code § 18 1016(a). Boling v. Sup. Ct. (1980) 105 Cal. App. 3d 430, 438. However, a patient-litigant 19 waives the privilege if the records are “‘relevant to an issue concerning the mental or emotional 20 condition of the patient’ which has been ‘tendered’ in the action.” Id. at 442 (internal citations 21 omitted). Plaintiff has the burden of showing “irrelevancy” of the records. Boling, supra, 105 22 Cal. App. 3d at 438. 23 Courts have applied the patient-litigant exception to personal injury cases “in which the 24 plaintiff tenders his physical or emotional condition as an issue by seeking damages for what he 25 contends are physical or emotional injuries.” Simek v. Sup. Ct. (1981) 117 Cal. App. 3d 169, 174 26 (internal citations omitted). As the California Supreme Court has found, “when a party places 27 his own mental state in controversy by alleging mental and emotional distress”, he “can hardly 28 8 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 deny his mental state is in controversy.” Vinson v. Sup. Ct. (1987) 43 Cal. 3d 833, 839 2 (emphasis original). 3 In Vinson, plaintiff accused defendants of causing her mental and emotional ailments in a 4 wrongful termination and sexual harassment lawsuit. Id. at 837. The court found that by 5 claiming continuing emotional distress from sexual harassment or discrimination, plaintiff has 6 waived her privacy right as to her mental and emotional condition and its cause, but not her right 7 to sexual privacy and sexual history. Id. at 842. 8 In the case at bar, plaintiffs pleaded damages for psychological care and emotional 9 distress. By so pleading, plaintiffs tendered their mental conditions as an issue by seeking 10 damages for what they contended are emotional distress. Even if plaintiffs did not seek 11 psychological care related to illnesses caused by Salmonella, they must identify the 12 psychological and psychiatric care providers in the past ten years. Any records that may 13 demonstrate pre-existing conditions or chronic lifestyle choices or conduct that impact plaintiff’s 14 mental or medical conditions are also relevant to plaintiffs’ psychological care and emotional 15 distress damages claim. Plaintiffs’ past mental and emotional conditions are directly relevant to 16 the determination of whether their emotional or mental distress can be properly attributed to the 17 alleged foodborne illness. The past mental health records are relevant to impeach plaintiffs’ 18 discovery responses that they were not aware of any mental and emotional disabilities they had 19 before consumption of onions and did not sustain injuries of the kind for which they are now 20 claiming damages. In conclusion, the past mental health records are essential to a fair resolution 21 of plaintiffs’ suit. 22 Because plaintiffs have placed in issue their mental conditions, and the mental health 23 records are relevant to their mental health conditions, plaintiffs have waived the patient- 24 psychiatrist privilege, and their privacy right as to mental and emotional condition and its cause. 25 The patient-litigant exception is therefore applicable to this case. 26 /// 27 /// 28 9 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 2. Defendant Is Entitled to All of Plaintiff’s Mental Health Records 2 In Britt v. Sup. Ct. (1978) 20 Cal. 3d 844, 849, plaintiff homeowners sought damages 3 from defendant airport owner for diminution of property values, personal injuries, emotional 4 disturbance allegedly caused by the noise, vibrations, air pollution and smoke associated with 5 defendant’s operation of the airfield. The California Supreme Court emphasized that plaintiffs 6 “may not withhold information which relates to any physical or mental condition which they 7 have put in issue by bringing this lawsuit”. Id. at 864. The court found that plaintiffs were 8 obligated to disclose all medical information relating to a medical condition and could not limit 9 discovery simply to the incidents which have allegedly impaired their condition. Id. at 864, fn. 10 9. As noted by the court, insofar as a number of injuries or illnesses, some related and some 11 unrelated to the airport operations, have contributed to a medical 12 condition placed in issue by a plaintiff, defendant is entitled to obtain information as to all such injuries or illnesses. Thus, for 13 example, if a plaintiff claims that the airport operations have damaged his respiratory system, plaintiff would be obliged to 14 disclose all medical information relating to his respiratory condition and could not limit discovery simply to those airport- 15 related incidents which have allegedly impaired his condition. Id. 16 Under Britt, plaintiffs’ past mental health history not caused by a foodborne illness are 17 also relevant to their claim for psychological care and emotional distress damages. Plaintiffs 18 could not limit discovery of their mental health records to the food contamination incident which 19 has allegedly impaired their mental and emotional conditions. Because plaintiff have placed in 20 issue their mental and emotional condition, defendant is entitled to obtain information as to all of 21 plaintiffs’ mental and emotional impairments, regardless of whether such injuries were caused by 22 a foodborne illness. 23 Dated: March 3, 2023 GREENAN, PEFFER, SALLANDER & LALLY LLP 24 25 By: 26 Robert L. Sallander, Esq. Helen H. Chen, Esq. 27 Attorneys for Defendant THOMSON INTERNATIONAL, INC. 28 10 SEPARATE STATEMENT OF THOMSON INTERNATIONAL, INC.’S Case No.: BCV-22-101437 MOTION TO COMPEL PLAINTIFFS RESPONSES TO SPECIAL INTERROGATORIES, SET ONE