Motion-Secondary: Diana Blum, MD vs Sutter Health et al

On March 04, 2015 a Motion-Secondary was filed involving a dispute between Diana P. Blum, and Palo Alto Foundation Medical Group, Inc., Palo Alto Medical Foundation, Sutter Health, for Wrongful Termination Unlimited(36) in the District Court of Santa Clara County.

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THERESA J. BARTA (State Bar No. 150995)
BARTA LAW
4041 MacArthur Blvd., Suite 280
Newport Beach, California 92660
Tel. (949) 833—3383
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3V
_ 5 20%
Fax (949) 209-2530 JAN
Email: theresa@b_art_a-_lawﬂ The ‘29:;“3 Clam
'kol CA
“I DEPU
Attorney for Plaintiff,
Diana P. Blum, MD. av “ 80,0”,

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

DIANA P. BLUM, M.D., Case No. l lS-CV—277582

REDACTED MATERIALS (PUBLIC)
Plaintiff. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION FOR
SANCTIONS AND THE PRECLUSION
OF EVIDENCE PREPARED, OR
SUBMITTED, BY MARK LIPIAN, M.D.
SUTTER HEALTH, a California corporation;
PALO ALTO FOUNDATION MEDICAL Trial Date: January 8, 2018
GROUP. a California corporation; PALO
ALTO MEDICAL FOUNDATION, a
Time:
Dept:
8:45 am. BY FAX
California corporation; and DOES I through Judge:
20,

Defendants.

“PUBLIC — REDACTED MATERIALS FROM CONDITIONALLY
SEALED RECORD”

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SANCTIONS AND PRECLUSION OF EVIDENCE
TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................................... i

TABLE OF AUTHORITIES .............................................................................................................. ii

MEMORANDUM OF POINTS AND AUTHORITIES ..................................................................... l

I. INTRODUCTION ................................................................................................................... I

II. THE COURT’S ORDER COMPELLING THE IME AND LIMITING ITS SCOPE ............ 2

III. LIPIAN’S EXAM AND REPORT VIOLATE THE COURT’S ORDER ........................ ...4

A. Lipian Did Not Limit His Exam or Report to Dr. Blum‘s Emotional Distress ........... 4

B. Dr. Lipian, Defendants, and Their Attorney Violated the Court's Order That

10 Lipian’s Report to be Designated “Conﬁdential" ........................................................ 8

ll C. Lipian’s Exam and Report Also Violated the Court Order. Because He Delved

Into, and Reported On. Members of Dr. Blum’s Family ............................................. 9

IV. DR. LIPIAN, DEFENDANTS, AND THEIR ATTORNEYS CONDUCT

CONSTITUTES ABUSE OF THE LITIGATION PROCESS AND JUSTIFIES

SANCTIONS ......................................................................................................................... 10

A. The Court Has the Inherent Power to Preclude Evidence .......................................... IO

B. The Law Also Authorizes Evidentiary Sanctions (lien, Exclusion of Evidence)

18 For Misuse ofthe Discovery Process ................................. l 1

I9 DR. LIPIAN’S CONDUCT WAS NOT FORTUITOUS, IT IS HIS MODUS

20 OPERANDI ........................................................................................................................... 13

21 VI. CONCLUSION ...................................................................................................................... 14

i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SANCTIONS AND PRECLUSION OF EVIDENCE
TABLE OF AUTHORITIES

State Case

Castaline v City ofLos Angeles (1975) 47 Cal.App.3d 580 ....................................................... 12. 13

Coltini V. Enloe Medical Center (2014) 226 Cal.App‘4lh 401 ......................................................... 12

Doppes v. Bentley Motors, Inc, (2009) 174 Cal.App.4‘h 967 ............................................................. [2

Doyle v. Superior Ct. (1996) 50 CaI.App.4‘h 1878 .......................................................................... 1, 4

Peat, Marwick, Mitchell & Co. v. Superior Ct, (1988) 200 Cal.App.3d 272 ........................... 1.10, I 1

10 Code Sections

C.C.P. Section 2023.010 .................................................................................................................... 12

12 C.C.P. Section 2023.010 (b) & (c) ..................................................................................................... 12

13 C.C.P. Section 2023.030 .................................................................................................................... 11

cm; Section 2023.030(c) ................................................................................................................ 11

16 Misc. Source

17 The Disordered and Discredited Plaintiff} Psychiatric Evidence in Civil Litigation, by

18 Deirdre Mi Smith, University of Maine School of Law (2009) ....................................... l3. 14

ii
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SANCTIONS AND PRECLUSION OF EVIDENCE
MEMORANDUM OF POINTS AND AUTHORITIES

I.
INTRODUCTION
Defendants asked this Court to compel Plaintiff to undergo an IME psychiatric exam,

because she is asserting emotional distress damages in this case. In granting the defendants" request,

the Court speciﬁcally limited the exam to determinations about Plaintiffs “emotional distress",

because defendants’ expert had stated in his declaration (in support ofthe motion) that he intended to

determine whether Plaintiff had a “personality disorder . . . that could have caused her to

misperceive the defendants‘ conduct” — i.e., he was going to opine on the Plaintiff‘s credibiliﬂ.

10 This Court (and law) specifically state that:

1] “[One] cannot use an IME doctor to saw that this person isn’t

12 w."
credible. Credibility is not within the purview of [an] expert
[Reporter’s Transcript of Proceedings, pp. 5:28-617,
emphasis added (Exhibit D to Barta Decl,); Doyle v. Superior Ct.
13 (I996) 50 Cal.App.4‘h I878, 1886.]

18
diagnosis —
In complete disregard and blatant violation

and
ofthe Court’s Order. defendants and their

expert’s IME Report includes seventy-nine pages of“opinions and conclusions" about

plaintiffs credibility. Moreover,

designated Confidential as the Court also ordered, and it included specific references and

detailed discussion about one of Plaintiff’s family member’s medical condition (also a
a

the Report was Lot
purported

a very

violation of

I9 the Court’s Order).

It is well established that California trial courts have inherent power to preclude evidence to

prevent abuses of the litigation process. [Peat, Marwz'ck, Mitchell & Co. v, Superior Ct. (I 988) 200

Cal.App.3d 272, 287.] For all ofthe reasons stated herein, and because the entirety ofdefendants‘

IME Report clearly violates this Court‘s Order, Plaintiff respectfully requests that defendants‘

‘expert" and his Report be precluded as a remedy for defendants’ abuse ofthe litigation process.

I
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
II.
THE COURT’S ORDER COMPELLING THE IME AND LIMITING ITS SCOPE

In November 2016, defendantsjﬂy moved this Court for an order compelling Plaintiffto

undergo a psychiatric examination. In their motion, defendants argued that, “Plaintis claimed

emotional distress is far in excess ofwhat one might expect as a reaction to defendants‘ alleged

wrongful conduct." [See Defendants’ Joint Motion to Compel Independent Psychiatric Medical

Examination, p. 2:1 1-12 (Exhibit A to the Declaration ofTheresa Barta tiled herewith (“Barta

Decl.”)).]

Also ﬁled with their motion was a declaration from defendants’ retained psychiatric

10 ‘expert” (Dr. Mark Lipian), which stated that his evaluation of the plaintiffwould include

11 determining whether she had a personality disorder, because it is “relevant to the issue of employer

12 liability and the credibility of the plaintiff”. [Declaration ofMark Lipian, M.D. (“Lipian Deal"),

p. 3:8-13, emphasis added (Exhibit B to Barta Decl.).] Specifically, Dr. Lipian stated:

14 “As part of my planned evaluation, 1 plan to review Dr. Blum’s
medical/psychiatric records . . [which] are important to determine, among
.

15 other things: . . .

(ii) the existence of any pre-existing personality disorder (or traits) or
16 mental disorder, given that such disorders or traits . could have caused . .

her [Plaintiff] to misperceive the defendants’ conduct or make indiscreet
17 statements regarding the defendants’ conduct . [Lipian Decl., p. 2:19-27
. .

(emphasis added).]
18
“Personality disorders are also relevant to the issue of employer
19 liabilig in employment claims. Personality disorders often cause
interactions between people that can later be alleged to have been imposed
20 on the plaintiff by others. Personality disorders are relevant to the
credibilig of the plaintiff’s account of the events in question.
21 lndividuals with personality disorders often interpret events in a distorted
fashion and rationalize their own behavior.“ [1d, p. 3:8-13 (emphasis
added).]

23 In Plaintiffs written opposition to the motion to compel, and during oral argument at the

24 hearing on the motion, Plaintiff argued that Dr. Lipian’s evaluation ofthe Plaintiff (ifallowed)

2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
should be limited in its scope to the nature and extent of Plaintiff‘s emotional distress. [Exhibits C

and D to Barta Decl..]

Plaintiff‘s attorney pointed out that inquiry into whether the plaintiff has a “personality

disorder" was entirely improper, especially given defendants’ expert’s claim that the inquiry was

‘relevant to [defendants‘] employer liabilig” and the “credibilig of the plaintiff“. [Plaintiffs

Opposition to Joint Motion to Compel lME, p. 8:12-16 (Exhibit C to Barta Decl.) and Reporter‘s

Transcript of Proceedings, dated November 22, 2016 (Exhibit D to Barta Decl.).]

During the hearing ofdefendants’ motion to compel, Plaintiff‘s counsel stated:

“I'm concerned based on the examining psychiatrist’s declaration that
this is not going to be an examination for the purpose of determining
10 simply the nature and extent of mental and emotional distress. Ifthat's
sufficient, that's fine That's what the law allows for.
11
But the declaration ofthe psychiatrist goes on and says he wants to
12 determine -- and l'm reading from the declaration -- whether the plaintiff
has past experiences that would provide an explanation for her
13 perception ofdisputed factual allegations.

14 He wants to determine if there is a pre-existing personality disorder,
psychiatric illness, and these are relevant he says because it goes to the
15 credibilig of the plaintiff‘s account. And that is kind of foreshadowing
that this doctor's testimony or what he's trying to really evaluate is not
16 simply her emotional distress.

The defendants are going to use this as a back door for other purposes
17
that are improper.” [Reporter’s Transcript of Proceedings, pp. 3:11-4zl.
emphasis added (Exhibit D to Barta Decl.).]
18

During that same hearing. the Court acknowledged Plaintiff’s position and stated:

“There is case law that says — and I read it because 1 read all ofthe cases
that you cited and some ofthese cases indicate that you cannot use an
IME doctor to say that this person isn’t credible. Credibility is not
within the purview of that expert witness. So plaintiff—or plaintiff‘s
counsel does have a point in that regard.” [Reporter’s Transcript of
Proceedings, pp. 5228-627, emphasis added (Exhibit D to Barta Decl.).]

3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
The Court was right: the case law is clear. “Mental examinations are not authorized ﬁx
Id the purpose of testing a person’s credibility.“ [Dayle v. Superior Cr. (I996) 50 Ca|.App,4‘h [878.

l886 (emphasis added).|

The Court‘s Order granting defendants" motion thus speciﬁcally stated:

"Dr. Lipian’s exam is limited to ggt_er_mining the nature, extent
and causegj‘pjaintift‘s alleged emotional distress, ifany. During
the examination. Dr. Lipian shall not be allowed to inquire into Dr,
Blum’s family‘s medical and/or psychiatric history." [Order
Granting Del‘endants‘ Joint Motion to Compel Independent
Psychiatric Medical Examination of Plaintiff, p. 2:4-6. emphasis
added (Exhibit E to Barta Dccl.).]

III.
LIPIAN’S EXAM AND REPORT VIOLATE THE COURT’S ORDER

A. Lipian Did Not Limit His Exam 0r Report to Dr. Blum’s Emotional Distress

ln ﬂagrant disregard ofthe Court’s Order. Dr. Lipian did Lot limit his exam. nor his seventy-

summary t‘ashion‘ here) only reﬂect his purported diagnosis

plaintiff’s eredibilitv. For example:
—
nine- page report. to the nature. extent and cause ofplaintiff‘s emotional distress. Rather. Dr,

Lipian’s Report. and all of his "opinions and conclusions" (only some ot‘whieh are set forth

and
in

Dr. Lipian's Report is so lengthy (seventy-nine single spaced pages) that there is only room
I

here for very limited summaries oi‘only a very small portion ofhis report The entire Report is
attached as Exhibit F to the Barta Dec]. and incorporated herein by reference as if set forth in l‘ull.

4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
|\)

—
|Dr. Lipian‘s “opinions" also include statements about Plaintiffs eredihility and how

the basis
“caused her to misperceive the defendants‘ conduct or make indiscrect

statements regarding the defendants conduct". (This is exactly what Dr. Lipian said he was going to

do in his declaration that defendants submitted with their motion to compel the

ofplaintiff‘s opposition to the IME - 116,,

ther purposes that are improperf' [Reporters Transcript pp. 3:1

Examples include:
Plaintiff‘s counsel stated

|
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
l-4:l (Exhibit
[ME
I
and which was

at the hearing on the

motion: “That is kind ol‘ foreshadowing that this doctor's testimony or what he's trying to really

evaluate is not simply her emotional distress. The defendants are going to use this as a back door for

D to Barta Decl.).|
Further ofDr, Lipian‘s "opinions" assert ultimate factual conclusions that are the purview of

the factﬁnder - something, Lipian acknowledges, but then ignores. i.€., "It is. ofcourse. the purview

ofthe factﬁnder to weigh the evidence and to conclude . . . [issues of retaliation and Ierminationj",

[Exhibit F to Bana Decl. p 74.] Some ofthose factual conclusions which he labels as “opinions"

and asserts "to medical certainty" are:

llllllll
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
Di: Lipian does not stop there: he also asserts "conclusions" about plaintiff‘s motivations in

L) this case:

U-

The best evidence ol‘ Dr. Lipian‘s violation 0fthis Court's Order is set forth at pages 74-79 0

iis Report in his “Summary and Conclusions" (again. only a few 0fwhieh can be summarized here).

llll
The "opinions" in that section. clearly show that Dr. Lipian does Ln haw (my opinions about the

'extent. nature or cause ofplaintit‘t‘s emotional distress". which is \Vhat this Court ordered his exam

\‘as limited to. The words “emotional distress" do not show up even once in his "Summary and

Conclusions". (In fact. the “ords "emotional distress" only appear eight times in the entire se\ ent_\'—

nine page Report.) Dr. Lipian‘s “summary opinions" are:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
to

k»)

B. Dr. Lipian, Defendants, and Their Attorney Violated the Courtlg Order
That Lipian’s Report be Designated “Conﬁdential”

The Court's Order speciﬁcally stated that:

“ix—Hny report or other written document prepare b) Dr.
Lipian ot‘the psychiatric examination ofPlaintit‘t‘shall be
designated as “CONFIDENTIAL“ and protected pursuant
to the parties‘ Stipulated Protective Order." [Court Order p.
2:I l-I4. emphasis added (Exhibit E to Barta Decl,).]

The parties‘ Stipulated Protective Order requires that designated “Conﬁdential" materials be

‘stamped Conﬁdential” and "where the document consists ofmore than one page. the ﬁrst page

and each page on which conﬁdential information appears shall be so designated." [Stipulated

LProtective Order pl 2:6—13 (Exhibit H to Barta Decl‘).]

But. despite the Court‘s order. defendants and their attorneys produced Drl Lipian's Report

ithout designating, or keeping. it " "Confidential". Even after Plaintiff‘s counsel pointed this out‘

defense counsel (both Gordon Rees and Littler .Vlendelson) again disclosed the Report \\ ithout

designating it "Confidential”. [Barta Dec]. “11 ~13.)

8
MEMORANDUM OF POINTS AND AUTHORITIES IN Sl'I’I’ORT 0F.\IO'I'ION FOR SANCTIONS
This \\ as a blatant violation ofthe Court‘s Order. especially given the fact that the Report is

~eplete with references and quotes from not only plaintiffs private medical and psychotherapy

‘eeords. and transcriptions from the IME exam itself(see e.g., pp. 12-l4. [6-17. 22-23. 36-37. 30-3l.

55-56. 71-74 ofLipian Report (Exhibit F to Barta Deel.)). but the Report also included speciﬁc

details. and even medical records. ofone of Dr. Blum‘s family members (a third party. unimolyed

\ith this lawsuit). [Lipian Report pp. 58—62. and Appendix A (Exhibit F to Barta Deel.).j

C. Evian’s Battling] RepertAlgLViolatcd th.¢_C_0urt Qrdcr, Because He
DslVed Into, anQ.R.ep9LtEd Qnﬂlem.l)er,5.of Dr- Blum’s Eamilv

9
The Court‘s Order stated that:

"During the examination. Dr. Lipian shall not be allowed to
inquire into Dr. Blum‘s family medical and/0r psychiatric
history." [Court Order p. 225-6. emphasis added (Exhibit E to
Barta Decl.).]

During the IME exam. Dr. Lipian asked the plaintiff:

-.
Additionally. pages 58throug1162 ofLipian‘s Report goes into detail about a medical

problem and Visit to a physician by Dr. Blum‘s

exam. and the physician’s notes. assessment. plan and even his diagnosis

see p. 62

any redaction).
ofLipian Report). as well as a
It includes a description of What the

physician‘s exam consisted of. the physician's verbal comments, obsen ations during the medical

of Dr. Blum's

copy ofthe actual medical records from the exam (without
-
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SI‘I’I’ORT OFN'IOTION FOR SANCTIONS
Dr. Lipian acted with complete disregarded ofthe Court’s Order. and his actions were

certainly not a “mistake”. As shown here and above (in Sections “LA. and B.), Dr. Lipian repeatedly

violated the Court’s Order. Both he, and defendants attorneys’ who requested and intend to use the

Report, have engaged in multiple and ﬂagrant abuses ofthe litigation process.

IV.
DR. LIPIAN, DEFENDANTS, AND THEIR ATTORNEYS CONDUCT
CONSTITUTES ABUSE OF THE LITIGATION PROCESS AND JUSTIFIES SANCTIONS

A. The Court Has the Inherent Power to Preclude Evidence

It is well established that California trial courts have inherent power to preclude evidence to

10 prevent abuses ofthe litigation process. [Peat, Mam‘ick, supra, 200 Cal.App.3d 272, 287.]

11
"Our Supreme Court has recognized that California courts have
inherent powers, independent ot‘statute, derived from two distinct
sources: the couns' ‘equitable power derived from the historic power
of equity courts‘ and ‘supervisory or administrative powers which all
courts possess to enable them to carry out their duties."’|Peat.
Marwick. supra, 200 Cal.App.3d at 287.]
14
“The court's inherent power to curb abuses and promote fair process
15 extends to the preclusion of evidence. Even without such abuses the
trial coutt enjoys broad authority of thejudge over the admission and
16 exclusion of evidence. . . ['T]rial courts regularly exercise their
.

‘basic power to insure that all parties receive a fair trial” by
17 precluding evidence." [141. at 288 (emphasis added).}

18
In Peat, Marwick, supra, an accounting malpractice action, the Court of Appeal afﬁrmed the

19 trial court’s order precluding defendant from controverting evidence on elements ofthe malpractice

20 claim against it, as a sanction for defendant’s intentional (and secret) merger with the accounting

21
firm that was the plaintiff‘s expert witness. The court held that the preclusion order was Ma

discovery sanction, but an exercise ofthe trial court’s inherent power to exclude evidence as a

23 remedy for litigation abuse. Speciﬁcally, the court ruled:

10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
“[T]he trial court may act to prevent the taking of an unfair advantage
and to preserve the integrity of the judicial system. The court may
invoke its inherent power to preclude a party‘s evidence on those
aspects of its opponent's case which would have been presented in
court by the now-compromised expert Witness." [PeaL .l/lunrick. 200
Cal.App.3d at 289.]

The court also ruled: "There is no intrinsic limitation on the court‘s inherent power of

evidence preclusion which would enable preclusion in cases of evidence destruction, but leave the

court powerless to remedy otherforms oflitigation abuse." [Peat Marwick, 200 Cal.App.3d at 289,

emphasis added]

Here. Dr. Lipian and defendants (through their attorneys) have abused the litigation process

10
by violating a Court Order. not once. not twice, but so many times that the violations are obviously

ll 'ntentional. Certainly, Dr. Lipian and defendants intended to gain an unfair advantage, or bully the

12 plaintiffinto dismissing her case, by making inﬂammatory (and untrue) statements about her
l3 character, temperament and personality.

l4
B. The Law Also Authorizes Evidentiarv Sanctions (122., Exclusion of Evidence)
l5
For Misuse of the Discovery Process
l6
In addition to the Court’s inherent power to preclude evidence. California discovery law also
l7
authorizes a range of penalties, including evidence sanctions, for "anyone engaging in conduct that is
l8
a misuse ofthe discovery process.” [C.C.P. Section 2023030.] Speciﬁcally, Section 2023.030(c)
l9
provides:

“The court may impose an evidence sanction by an order prohibiting
any party engaging in the misuse ofthe discovery process from
introducing designated matters in evidence."

I l
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
C.C.P. Section 2023.010 provides examples of"misuses ofthe discovery”. It is not, however.

an exclusive list: i.e.,“[m]isuses ofthe discovery process include, but are not limited to, the

following. . Two ofthe listed “misuses” applicable here are: “using a discovery method in a

manner that does not comport with its speciﬁc procedures“ and “[e]mploying a discovery method in

a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or

undue burden and expense.” [Section 2023.010(b) & (c).]

In selecting discovery sanctions, the trial court has broad discretion, “subject to reversal only

for abuse.” [Dappes v. Bentley Motors, Inc. (2009) 174 Ca1.App.4(h 967, 992.] The Doppes court

instructed:

“The trial court should consider both the conduct being sanctioned
and its effect on the party seeking discovery and. in choosing a
11 sanction. should ‘attempt to tailor the sanction to the hann caused by
the withheld discovery.m [174 Cal.App.4"‘ at 992.]
12
Here, the Court speciﬁcally ordered that the IME exam be “limited to determining the nature,
13
extent and cause of plaintiff’s alleged emotional distress, if any.” [Court Order p. 2:4-5, emphasis
14
added (Exhibit E to Barta Decl.).] The Court also ordered Dr. Lipian Lot to inquire into Plaintiff‘s

family’s medical history [1d p. 2:5-6], and that the Report be designated “Conﬁdential”. [Id. p.
16
2:12.] The entirety of Dr. Lipian’s Report and any testimony he may offer, violates these Court
17
orders. Thus, to “tailor the sanction to the harm caused”, plaintiff submits that the evidentiary
18
sanction should be the preclusion of Dr. Lipian and his Report from this case, as well as reference to
19
the matters contained in the Report.

Other cases support this sanction as well. Cottini v. Enlae Medical Center (2014) 226

Cal.App.4”‘ 401, 425 and Castaline v. City ofLos Angeles (1975) 47 Cal.App.3d 580 are both cases

'n which the court excluded expert witnesses. In Coltini, supra. the court afﬁrmed the trial court‘s

exclusion of an expert witness because ofa failure to timely disclose the expert. [226 Cal.App.4"‘ at

12
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
423.] In Castaline, supra. a personal injury case, the trial court excluded the testimony ofa doctor

who examined the plaintiffjust three days before trial, and the Court of Appeal afﬁrmed stating:

“Under all ofthese circumstances we cannot say that the court’s
exclusion of [the doctor’s] testimony was not within its basic power to
insure that all parties receive a fair trial.” [Castaline 47 Cal.App.3d at
592.]

V.
DR. LIPIAN’S CONDUCT WAS NOT FORTUITOUS,
IT IS HIS MODUS OPERANDI

Dr. Lipian is not just a purported “psychiatric IME expert", he is known far and wide for

offering evidence (on behalf of defendants in civil employment cases) that portrays plaintiffs as

10 having a “personality disorder", which he then uses to impeach their credibility and claim that their

ll perception ofthe events at issue in the trial are “distorted”.

12 Dr. Lipian has testiﬁed in just this way in numerous cases, including as recently as October

13 20l6. He also was cited as “authority” for this type of “trial tactic” in an article written eight years

14 ago entitled, “The Disordered ana’ Discredited Plaintiff: Psychiatric Evidence in Civil Litigation“.

l5 That article examined and analyzed:

l6 “[C]ivil defendant’s use of evidence ofa plaintiff‘s alleged current or
prior psychiatric diagnosis or treatment. [and] rationales offered in
. .

17 support ofthe relevancy of such evidence: . . [one rationale being] to
impeach the plaintiffs credibility by asserting that a mental illness
interferes with the plaintiff‘s ability to recount or perceive events
accurately.” [Disordered and Discredited Plaintiff: “Abstract” p. 749.
emphasis added (Exhibit G to Hana Decl.)_]

It also stated that:

"[E]vidence ofa plaintiff‘s psychiatric history poses a signiﬁcant
risk of unfair prejudice to the plaintiff in light ofthe persistent
and pervasive stigmatizing effects of psychiatric diagnoses.
Regardless ofthe relevancy theory advanced by defendants in
23 support of admissibility, fact ﬁnders likely use such evidence
impropermto discount 3 plaintiffs credibility and to conclude
24 that the plaintiff possesses certain behavioral propensities that weigh

l3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
in favor ofa ﬁnding for the defendants.” [Exhibit G to Barta Decl.:
“Abstract" p. 749, emphasis added]

Dr. Lipian was cited in the “Disordered and Discrediled Plaintiff for the proposition that:

"In addition to offering evidence ofa plaintiff’s mental illness to
support a theory of alternative causation, some civil defendants
attempt to introduce such evidenced on the issue of credibility,
either to suggest that the plaintiffs trial testimony is not to be
believed or that the plaintiff’s original perception of events was

—
inaccurate and the product of such illness.” [[d. p. 788 (Exhibit G
to Barta Decl.).]

Dr. Lipian’s actions in this case (i.€., rending ALL of his “opinions and conclusions" about a

purported diagnosis and then proffering that plaintiff is "not to be

believed”) are his modus operandi. This is further evidence that Dr. Lipian (and defendants) failure

to follow this Court’s Order was not “inadvertent” — it was intentional.
ll
VI.
[2 CONCLUSION

13
The only emotional distress damages that Plaintiff asserts in this case are attendant to he

other causes of action. She is not asserting a separate claim for intentional or negligent infliction of

emotional distress. As was pointed out (and offered as a stipulation) when Plaintiff opposed the

motion to compel the IME, the only evidence that Plaintiff will be presented relating to he

emotional distress will deal with the time frame while she worked for the defendants and the six

months following the last day she worked for them; that evidence will be solely Plaintiffs own

testimony. Plaintiff has never intended to put on expert evidence or medical testimony related to he

20
emotional distress (other than by herself) and will not do so unless the Court does not preclude Dr.

21
Lipian, his IME, and his Report as evidence at trial.

22
Thus, no prejudice will befall the defendants by precluding Dr. Lipian, his IME (and all

23
statements made by Plaintiff during the exam), and his Report from evidence at trial — especially

l4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
because defendants did not intend to present such evidence to begin with (as shown by the fact that

Dr. Lipian did not opine at all on the nature or extent of Plaintiff’s emotional distress).

For all ofthese reasons, Plaintiffrespectfully requests that the Court issue an order ]) ﬁnding

that Dr. Lipian and defendants violated this Court’s Order Compelling the IME, and 2) sanctioning

defendants by precluding Dr. Lipian, his IME (and all statements made by Plaintiff during the

exam), and Dr. Lipian’s Report (and all matters contained therein) from evidence in this case.

Dated: January 4, 2018

Attorney for Plaintiff, Dr. Diana Blum

15
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS
\
PROOF OF SERVICE
STATE OF CALIFORNIA COUNTY OF ORANGE Clark 6L1
BIC
Lama Clara
v“parlor Court __DEPUTY

party to the within action; my business address is 5160 Campus Drive, Newport Beach, Calif ,nia
‘
92660. .
3 VIZ/m
On January 5, 2018, served the foregoing document(s) described as: REDACTED
1

MATERIALS (PUBLIC) MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF SUPPORT OF PLAINTIFF’S MOTION FOR SANCTIONS AND THE
PRECLUSION OF EVIDENCE PREPARED, 0R SUBMITTED, BY MARK LIPIAN, MD.
on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope
addressed as follows:

Attorneys for Sutter Health and Palo Alto Attorneys for Palo Alto Foundation Medical
Medical Foundation: Group. Inc.:

Lindbergh Porter, Esq. Marcie Ison Fitzsimmons, Esq,
Maiko Nakarai-Kanivas, Esq. Gordon Rees LLP
Littler Mendelson, PC. 275 Battery SL, #2000
333 Bush Street, 34''1 Floor San Francisco, CA 941 l 1

San Francisco, CA 94104 Tel: (415) 986-5900
Tel: (415) 433—1940 Fax: (415)986-8054
Fax: (415) 399-8490 Email: Mlsom@gord0nrees.c0m
Email: mnakaraikanivas@littlercom

X (BY PERSONAL SERVICE)
A By personally delivering copies to the person served.
1 caused to be delivered such envelope by hand to the ofﬁces of the addressee pursuant t
C. C. P. § 101 1.
(BY MAIL) l deposited such envelope in the mail at Newport Beach, California. The
—

envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with the ﬁrm’s
practice of collection and processing correspondence for mailing. Under that practice it would be
deposited with US. Postal Service on that same day with postage thereon fully prepaid at Newport
18 Beach, California in the ordinary course of business. I am aware that on motion ofthe party served,
service is presumed invalid if postal cancellation date or postage meter date is or than one (1) day
19

20
_
after date of deposit for mailing in affidavit.
(BY ELECTRONIC TRANSMISSION) — l transmitted a PDF version ofthis document b
electronic mail on wag 5, 2018 to the party(s) identiﬁed on the attached service list using the e-
mail address(es) indicated.
21
declare under penalty of perjury under the laws the alifornia that the above true and
I
correct.
WStajg
0/
IS

illllll
23 l‘HEREflA J. BARTA

[6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR SANCTIONS

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

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Document Filed Date

January 05, 2018

Case Filing Date

March 04, 2015

County

Parties

Christine A. Lawler Attorney For The Defendant
Diana P. Blum Plaintiff
Lindbergh Porter Attorney For The Defendant
Palo Alto Foundation Medical Group, Inc. Defendant
Palo Alto Medical Foundation Defendant
Sutter Health Defendant
Maiko Nakarai-Kanivas Attorneys for Defendants
Theresa Barta-Vavrock Attorney
James Barber Attorney
Jeffrey Wertheimer Attorney
Charles Louderback Attorneys for Plaintiffs
Hieu Tran Attorney
Stacey Pratt Attorneys for Plaintiffs
Marcie Fitzsimmons Attorneys for Defendants
Sean Piers Attorneys for Defendants
Hieu Williams Attorney
Nicole Williams Attorneys for Defendants
Theresa Barta Attorney

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Motion-Secondary: Diana Blum, MD vs Sutter Health et al

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