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MARCIE ISOM FITZSIMMONS (SBN: 226906)
HIEU TRAN WILLIAMS (SBN: 280585)
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
#WN
San Francisco, CA 94111 t
'
I
2'
Telephone: (415)986-5900 NOV 1 0 201G
Facsimile: (415) 986- 8054
‘
'
Misom@gordonrees. com .
,
C‘erk of me Court
LII
Hwilliams@gordonrees. com I
mun oic
Supenoy wot Santa 0'8"
. ‘
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Attorneys for Defendant .
PALO ALTO FOUNDATION MEDICAL ",GROUP INC.
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MAIKO NAKARAI—KANIVAS (SBN: 271710)
00
LITTLER MENDELSON, P.C.
1255 Treat Boulevard, Suite.600
\O
Walnut Creek, CA 94597
Telephone: (925)932-2468
10 Fax No.: (925)946-9809
MNakaraikanivas@littler.com
11
Attorney for Defendants
12 SUTTER PEALTH and PALO ALTO MEDICAL FOUNDATION
13 SUPERIOR COURT 0F CALIFORNIA
14 COUNTY OF'SANTA CLARA
15'
DIANA P. BLUM, M.D., CASE No. 11scv277582
16
Plaintiff,
‘
[SEALED] MEMORANDUM 0F POINTS
AND AUTHORITIES 1N SUPPORT 0F
l7 DEFENDANTS’ JOINT MOTION To
VS.
COMPEL INDEPENDENT PSYCHIATRIC
18 EXAMINATION 0F PLAINTIFF v
SUTTER HEALTH, a California
19 corporation; PALO. ALTO FOUNDATION CONFIDENTIAL
MEDICAL GROUP, DIG, a California
20
corporation; PALO ALTO MEDICAL
[FILED UNDER SEAL PURSUANT TO
vvvvvvvvvvvvvvvvvvv
STIPULATED PROTECTIVE ORDER]
FOUNDATION, a California corporation;
and DOES 1 thIOUg-h 20’ Accompanying Documents:
22 Notice of Joint Motion; Declaration of Dr.
Defendants. Mark Lipian; Declaration of Marcielsom
23. Fitzsimmons; [Proposed] Order
24 Date: November 22, 201 6
Time: 9: 00 a. m
25 Dept: 8 Judge. Hon. Maureen A Folan
26
THIS ENVELOPE IS SEALED PURSUANT TO ORDER 0F THE COURT,
'
27 CONTAINS CONFIDENTIAL INFORMATION AND IS NOT TO BE OPENED OR
THE CONTENTS REVEALED, EXCEPT BY ORDER 0F THE COURT OR ‘
28 AGREEMENT BY THE PARTIES.
IIOSHMOJNSWVJ
[SEALED] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’. JOINT
MOTION TO COMPEL INDEPENDENT PSYCHIATRIC EXAMINATION OF PLAINTIFF
p—A ‘
MARCIE ISOM FITZSIMMONS (SBN: 226906)
HIEU TRAN WILLIAMS (SBN: 280585)
N GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000 -
San Francisco, CA 941 11
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Telephone: (415) 986-5900
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EHWEm‘f
Facsimile: (415) 986-8054
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Ui‘h
Misom@gordonrees.com ,
.
NOV 1 0 2015
Hwilliaims@gordonrees.com
DAVlD H. YAMASAN
ON
Attorneys for Defendant .
PALO ALTO FOUNDATION MEDICAL GROUP, M.
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Wflflu 0mm D '
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MAIKO NAKARAI—KANIVAS (SBN: 27 l 71 0)
S. VeRA
.
LITTLER MENDELSON, P.C.
‘
00 1
1255 Treat Boulevard, Suite1600
\O
Walnut Creek, CA 94597
Telephone: (925)932-2468
O Fax No.2 (925)946-9809
MNakaraikanivas@1jttler.com
t—l
Attorney for Defendants
N SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION
W SUPERIOR COURT 0F CALIFGRNIA
COUNTY OF'SANTA CLARA
NHHr—‘t—tp—‘p—a—H—‘t—I
UI,A
DIANA P. BLUM, M.D., CASE No. 11501277582
O\
Plaintiff,‘
[SEALED] MEMORANDUM OF POINTS
AND AUTHORITIES 1N SUPPORT OF
\l
DEFENDANTS’ JOINT MOTION TO
VS.
COMPEL INDEPENDENT PSYCHIATRIC
00
EXAMINATION OF PLAINTIFF '
SUTTER HEALTH, a California
\O
corporation; PALO. ALTO FOUNDATION CONFIDENTIAL
MEDICAL GROUP, DIG, a California
O
PALO ALTO MEDICAL
corporation;
[FILED UNDER SEAL PURSUANT TO
VVVVVVVVVVVVVVVVVVV
STIPULATED PROTECTIVE ORDER]
N h—n
.
FOUNDATION, a California corporation;
and DOES through 20,
1
Accompanm' g Documents:
Notice of Joint Motion; Declarau‘on of Dr.
Defendants. Mark Lipian; Declaration of Marciellsom
Fitzsimmons; [Proposed] Order
Date: November 22, 2016
Time: 9. 00 a. m.
NNNMNNN ooqoxmhymm
Dept. 8 Judge. Hon MaureenA Folan
'
THIS ENVELOPE IS SEALED PURSUANT TO ORDER OF THE COURT,
CONTAINS CONFIDENTIAL INFORMATION AND IS NOT TO BE OPENED OR
THE CONTENTS REVEALED, EXCEPT BY ORDER OF THE COURT OR '
AGREEMENT BY THE PARTIES.
IIOSSIMOJHSWVJ
[SEALED] MEMORANDUM OF POH‘ITS AND AUTHORITIES m SUPPORT OF DEFENDANTS'. JOINT
MOTION TO COMPEL INDEPENDENT PSYCHIATRIC EXAMINATION OF PLAINTIFF
r
r—n
MARCIE ISOM FITZSIMMONS (SBN. 2.26906)
HIEU TRAN (SBN: 280585)
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
San Francisco, CA 941 11
Telephone: (415) 986- 5900
Facsimile: (415) 986- 8054
Misom@gordonrees. com r
Htran@gordonrces. com
oooq‘o‘m,amm
Attorneys for Defendant
PALO ALTO FOUNDATION MEDICAL GROUP, INC.
MAIKO NAKARAI-KANIVAS (SBN: 271 710)
LI'ITLER MENDELSON, P.C. t
1255 Treat Boulevard, Suite 600
Walnut Creek, CA 94597
Telephone: (925) 932-2468
Fax No.: (925) 946—9809
MNakaraikanivas@littler.com
Attorney for Defendants
BUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION
SUPERIOR COURT 0F CALIFORNIA
COUNTY 0F SANTA CLARA '
-
ED
NMN‘NHH...
mNHomeSGEGEZS
DIANA P. BLUM,
vs.
M.D.,
Plaintiff,
SUT'I‘ER HEALTH, a California corporation;
PALO ALTO FOUNDATION MEDICAL
GROUP, m0, a California comoration; PALO
ALTO MEDICAL FOUNDATION, a
California corporafion; and DOES 1 through 20,
Defend ants.
'
VVVVVVVVVVVVVV
VVVVVV‘
W
CASE NO. 115CV2775 82
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ JOINT MOTION TO
COMPEL INDEPENDENT
PSYCHIATRIC MEDICAL
EXAMINATION OF PLAINTIFF
Notice of Motion; Declaration of Dr
Lipian, Declaration of Marcie Isom
Fitzsimmons; [Proposed] Order
Date: November 22, 2016
Time: 9:00 a.m.
Deft; 84 ,
Iu ge: Hon.'Maurecn A. Folan
Mark
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' JOINT
Mn'rmN Tn r‘nMpm. mnnppNnENT nsvr‘mA Tu rr‘ Mpmr‘m pyAmATrnN (w pr ,A mTrm: .
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I. INTRODUCTION
Plaintiff D‘iana P. Blum, M.D., claims that she still sufi‘ers from “severe emotional
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disu'css” caused by Defendants’ SU'IITER HEALTH, PALO ALTO FOUNDATION MEDICAL
GROUP, INC., and PALO ALTO MEDICAL FOUNDATION (collectively ;‘Defendants")
alleged conduct leading 11p to her rcsig'nation in October 2013. She claims to suffer fiom
\IQMA
“morbid” depression, PosI-Traumatic Stress Disorder (“PTSD”), mental anguish, anxiety,
humiliation, weight gain, and insomfiia, which has-requ'ired her to takepsychotropic medication.
She contends that her emotional distress resulting fiom Defendants’ conduct is worse than that
she suffered from her miscarriages and that it has had‘ such a profound effect that she continues
10 to ekperience these symptoms today —- néarly three years afier her resignation.
11 Because Plaintiff‘s claimed emotional distress is far in excess of what one might expect
12 as a reactionto Defendahé’ alleged wrongful conduct related to her employment, Plaintiff has
13 indubitably placed her mental and emotional status at issue in this lawsuit Settled law provides
14 that Defendants are entitled to a psychiatric examination of Plaintiff.
.
15 II. FACTUAL BACKGROUND
16 A. -
?lainfiffs Claimed Emotional bistress
17 Plaintiff resigned from Palo Alto Foundation Medical Group (“PAFMG”) and lefi her'
18 employment on October 31, 2013. She claims she was retaliated against and constructively 1
i
19 discharged. Plaintiff'1s now seeking millions of dollars 1n emotional distress damages
20 Plaintiff claims that she suffers from severe emotional distress, including depression,
21 PTSD, mental anguish", anxiety,‘ shock, humiliation, and Worry as a result of Defendants’
22 conduct. (See Exhibit 1 to Declaration of Marcie Isdm Fitzsimmons [“Fitzsimmons Decl."])- _
23' and that her emotional distess was more severe
She testified that she was ‘fii’mrbidly” depressed
24 than what she experienced as a result of the multiple miscarriages she had previously. (See;
25 Exhibit 2, Confidential Portions ofPlaintifPs Deposition, pg. 206:4-10, t6 Fimsimmons Decl.) ~
26 Plaintiff claims that while she was still working 'at
PAFMG, she would sit in her car and cry and
27 that she was scarpd “ail the time.” (Id, Confidential Pdrtions of Plaintiff’s Deposition, pg. 206:7—
23 21 ,‘to Fitzsimrfions Decl.)') Plaintiff sought psychological counseling for her emotional distress
2
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MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANTS’ JOINT
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and was prgscfibed anti-depressants, which she still takes today. (Sec Exhibits 1 and Exhibit 2,
Confidential Portions of Plaintiff’s Deposition, pg. 206:4;21 to Fitzsimmons Decl.) Plaintiff
denies ever previously experiencing these typcs of syfiptoms, despité having several othelf
stressors in he; lifgsuch as the death of her grandmother (who had multiple strokes), the
husband’s‘ unemployment, and her daughter’s medical issues. (See Exhibit 2, Confidential.
Portions of maimift‘s Deposition, pg. 206:4-21, Non-cOnfid'en'ti'al Portions of Plaintifi‘s
\OOOQQLA-bWN
Deposition, pg. 896221-24, 897: 14-19, to Fitzsimmons Decl.) PlaintifiT claims that she still has
“PTSD anxiety atfacks” as a result of Defendants’ conduct and that rhany‘of her emotional
distress symptoms recently resurfaced as a result of saeingpne of her former PAFMG
colleagues. (1d, Non-Confidential Portions of Plaintiff’s Deposition, pg. 739:23-25, attached to
Fitzsimmons Decl.)
B. Meet and Cdnfer Effohts
On October 10, 201.6, Defendants requested that Plaintiff stipulate to an independcnt
psychiatric medical exam (“I'ME”). (See Exhibit 3 to Fitzsimmons Décl.) Defendants pfovided
Plainfiff’s counsel with notice of who would conduct the examination, the expert’s CV,’ and a
‘
written proposed stipulation. (Ibid.) On October '13, 20] 6, Plaintifi’s counsel suggested that she
would likely to stipulate to the cxaminafioh, but without any éxplanaticin, on October 19, 2016;
s.
Plaintifi‘ counsel informed Defendanfs’ counsel that‘she would have to move to compel the
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examination. (Id)!
C. The Qualifications of Dr. Mark Lipian and the Proposed Evaluation
Thc'cxamination will be conducted by'Dr. Mark Liplan, an expert in clinical and forensic
psychology who is board certified by the American Bbartl of Psychiatry and Neurology. (See
Exhibit A to Declaration of Dr. Mark Lipian [“Lipian Decl.”]) He received his PhD. fi'om Yale
University in 1985 and his M.D. from Yale‘University School of Medicine in 1986. (Lipian
NNNNNNNN
Dec]. at 1] 3.) He is currently an Assistant Clinical Phofessor in the Department of Psychiauy
and Behavioral Sciences at U.C.L.A. and the Chief of Psychiatry for Forensic Outpatient
‘Normally of information would be provided in a separate Rule of Court 3.1345
this type
statement. However, because Plaintiffs counsel never provided a valid objecfion to the
examination, no statement is required. (Rule of Court 3.1345(b).)
m
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3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ JOINT
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Services for the, Orange County Health Care Agency. (Id. at 1] 2.) He has written numerofis
publications on mental and emotional disorders commonly encountered in employment
.
litigation. (Sec Exhibit A to Lipian Decl.)
Dr. Lipian proposes to conduct a sthndard, forgnsic psychiatric examination of Plaintiff,
'
which clonsists of an approximately eight hour interview wherein he asks general opcn-gnded
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questions about Plaintifi‘s mental history and the possible sources of any alleged embtional
trauma. (See Lipian Dec]. at 1] 4.) The examination will include, among 'other things, inquiries
intd Plaintiff‘s current complaints, the history and character ofprcyiqus psychological‘
n'mledical Work
complaints, history, histoi'y, family history, family medical and psychiatric history,
and social and developmental history. (Id. at fl S, 7, 9.) 'These inquin'es are important in order to
determine Plaintiff’s current level ofpsychological and ncuropsychological funcu'oning. (Id. at?
5.)
The cxaminafion will not include ariy physically painful tests or invasive procedures. (Id.
at 1] 14.) Dr. Lipian will not make any inquiries of Plaintiff thatlv‘iolate the ethical standards of
~
his profeesjon or theistandards of competent forensic psychological practice. (Id)
’
III. LEGALARGUMENT
‘
A. Defendants Have Made a Reasonable and Good Faith Attempt to Arrange
for Plaintiff’s Mental Examination Pursuant to Code of Civil'Procedure
mqmmAwNwoooo'anZSET—‘S
Section 2032.310
A party seeking leaVe of court to compel another party to submit to a mental examination I
muét first make “a reasonable and good faith attempt to arrange for the cthinafion by . . .
I
agreement." (Chde Civ. ?roc. § 2032(-d).)‘
Defendants attempted to meet and confer with Plaintiff‘s counsel several times in an
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efl'ort to obtain Plaintifl‘s agreement to'an IME. (See Exhibit 3 to Fitzsimmons Decl.)
waevcr, Plaintiff's counsel stated that Defendants would need a court order to compel
Plaintiff‘s IME. (1d)
B. Has Placed Her Mental Condition In Controversy and There
Plaintiff is
_Good Cause to‘ Order
Her Psychological Examination
A court is authorized to order a mental examination of e party to the action when (1) the
,
t
4 .
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ JOINT
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mental condition of that party “in controversy in the action" and moving party shows
is (2) the
.I_.
I
“good cause" for such examinafion. (Code Civ. Proc. § 2032.320.) Defendants have sufficiently
satisfied bdrh ofthese requirements and, thus, respectfully request this Court O_rder Plaintiff to
submitlto a psychiauic examination.
1. Plaintiff’s Mefital Condition Is in Cémtroversx
koooxioi_m.pwm
A plaifitifi‘s mental condition i's placed “in controversy” when the plaintiff alleges mental
injury and the injury or extent of injury is denicd‘ (Reuters v. Superior Cour! (1979) 93
Cal~.App.3d 332, 341 [citing Schlagenhaufv. Holdelf,l(1964) 379 U.S. 104, 119].) When a
plaintiff hails a defendant into chum, accusing that defendant of causing mental and emotional
injufieé, and the defendant denies those charges, “the Existence and extent of [the~p1a1nti.fl’s]
mental injuries arc indubitably in dispute.” (Vinson v. Superior Court (1987) 43 Ca1.3d 833,
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'
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839—840.) .
In Vinson, the defehdmts sought to compel a mental examination and discover the sexual
history of the plaintiff, a 59-year-old woman suihg them for sexual haiassment, wrongful
discharge, and intentional infliction'of emotional distress. (Id at 837.) The plaintiff alleged that
the defendants’ actions caused “her to sufler continuing emotional distress, loss of sleep, anxiety,
mental anguish, humiliation, reduced self—esteem, and other conseqhences.” (Id) The cdurt
NNNNNNNNND—‘v—‘Hr—p—Av—nb—IHHH
determined that the plaintiff‘s mental condition was in controversy, stating that “a pany who
in controversy”- hence, the plaintiff
the defendants. (1d)
‘
resfilt
to
Here. Plaintiff alleges WW
chooses to allege that he has mental or emotional diffictllties ean hardly deny his mental state
was ordered
of Defendants‘ alleged conduct. Plaintiff alleges
sufier from “severe emotional
symptoms of sleep loss, PTSD,
to
distress,” including feeling
anxiety, and mental anguish.
undergo the mental examination requested by
that Defendants’ actions
‘
suffered subposedly'as a
have caused her
“morbidly depressed” and having.
(See-Exhibit 2 to Fitzsimmons
is
Decl.) Plaintifl‘s alleged emotibnal distess is so severe, she is still being tteated for it and
continuesto have “PTSD anxiety attacks," among other symptoms as a result of Defendants‘ .
alleged conduct. (Id.)
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANTS’ JOINT
Mn'r‘trw Tn (‘nMpm mnnppNnFNT
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psvr‘HrA'rmr‘ Mpnrr‘u . mm MmATmN m: m mm: .A
Defendants deny the existence and severity of Plaintiffs purported emotional distress and
N dispute that they caused her emotional injuries. In addition; there a're possible alternative cau.ses~
for Plaintifi‘s purported emotional distress, including pre—existing condigions and the possibility -
that Plaintifi’s symptoms érise fiom other strcssors in her life. For instance, Plaintiff testified
that during this same time she also experienced the death of her grandmother, the unemployment
Ito
of her husbahd, and the illness of her daughter. (See Exhibit 2 Fituimmons Decl.) Without
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question, the existence and extent of Plaintiff‘s mental injuries is "indubitably in dispute.”
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(Vinson v. Superior Court, supra, 43 Cal.3d at 840.)
i
2. Good Cause Exists for a Mental Examination
10 Good cause exists for a mental examinatiort where the plaintifl seeks recovery for
ll continuing severe emotional distress, her mental condition is directly related to her emotional
12 distress claim, and the ihformation is necessary to a fair resolution of the'lawsuit. (Vinson,
13 supra, 43 Cal.3d at 842 [citing Britt v. Superior Cqurt, (1978) 20iCal.3d 844, 859].)
14 , Pléintiff contends that she sufiers fiom remarkably severe emotional distress attributable
15 to Defehdants’ conduct. (See Exhibit 1 to Fitzsimmons Decl.) She Claims that she suffers fijom
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16 severe depression, PTSD, mental anguish, anxiety, shock, humiliation, sleep deprivation, and
17' won'y as a result of Defendants’ condu'ct. (See Exhibits l and 2 to Fitzsimmohs Decl.)'
18 Plaintiff cannot “makefl very serious allegations withoht affording defendants an
19 opportunity to put their truth to the test.” (Vinson v. Superior’ Court, supra, 42 Cal.3d at 842,
20 emphasis added.) “Becau_se the truth of these claims is relevant to plaintiff‘s causes of action
21 and justifying facts have been shown with specificity; good cause as to these assertions has been
22' 840-841 The defendant Vinaian siinply pointed to plaintiffs
demonstiated.” (1d. -at .) ir1
23 Allegations, vhhich the court deemed sufficient to constitute goodieause. (Id)
.24
Preview
fl - MARCIE ISOM FITZSIMMONS (SBN: 226906) HIEU TRAN WILLIAMS (SBN: 280585) GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 #WN San Francisco, CA 94111 t ' I 2' Telephone: (415)986-5900 NOV 1 0 201G Facsimile: (415) 986- 8054 ‘ ' Misom@gordonrees. com . , C‘erk of me Court LII Hwilliams@gordonrees. com I mun oic Supenoy wot Santa 0'8" . ‘ O\ Attorneys for Defendant . PALO ALTO FOUNDATION MEDICAL ",GROUP INC. fl MAIKO NAKARAI—KANIVAS (SBN: 271710) 00 LITTLER MENDELSON, P.C. 1255 Treat Boulevard, Suite.600 \O Walnut Creek, CA 94597 Telephone: (925)932-2468 10 Fax No.: (925)946-9809 MNakaraikanivas@littler.com 11 Attorney for Defendants 12 SUTTER PEALTH and PALO ALTO MEDICAL FOUNDATION 13 SUPERIOR COURT 0F CALIFORNIA 14 COUNTY OF'SANTA CLARA 15' DIANA P. BLUM, M.D., CASE No. 11scv277582 16 Plaintiff, ‘ [SEALED] MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F l7 DEFENDANTS’ JOINT MOTION To VS. COMPEL INDEPENDENT PSYCHIATRIC 18 EXAMINATION 0F PLAINTIFF v SUTTER HEALTH, a California 19 corporation; PALO. ALTO FOUNDATION CONFIDENTIAL MEDICAL GROUP, DIG, a California 20 corporation; PALO ALTO MEDICAL [FILED UNDER SEAL PURSUANT TO vvvvvvvvvvvvvvvvvvv STIPULATED PROTECTIVE ORDER] FOUNDATION, a California corporation; and DOES 1 thIOUg-h 20’ Accompanying Documents: 22 Notice of Joint Motion; Declaration of Dr. Defendants. Mark Lipian; Declaration of Marcielsom 23. Fitzsimmons; [Proposed] Order 24 Date: November 22, 201 6 Time: 9: 00 a. m 25 Dept: 8 Judge. Hon. Maureen A Folan 26 THIS ENVELOPE IS SEALED PURSUANT TO ORDER 0F THE COURT, ' 27 CONTAINS CONFIDENTIAL INFORMATION AND IS NOT TO BE OPENED OR THE CONTENTS REVEALED, EXCEPT BY ORDER 0F THE COURT OR ‘ 28 AGREEMENT BY THE PARTIES. IIOSHMOJNSWVJ [SEALED] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’. JOINT MOTION TO COMPEL INDEPENDENT PSYCHIATRIC EXAMINATION OF PLAINTIFF p—A ‘ MARCIE ISOM FITZSIMMONS (SBN: 226906) HIEU TRAN WILLIAMS (SBN: 280585) N GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 - San Francisco, CA 941 11 U) Telephone: (415) 986-5900 r EHWEm‘f Facsimile: (415) 986-8054 ' Ui‘h Misom@gordonrees.com , . NOV 1 0 2015 Hwilliaims@gordonrees.com DAVlD H. YAMASAN ON Attorneys for Defendant . PALO ALTO FOUNDATION MEDICAL GROUP, M. “gwm Wflflu 0mm D ' \l MAIKO NAKARAI—KANIVAS (SBN: 27 l 71 0) S. VeRA . LITTLER MENDELSON, P.C. ‘ 00 1 1255 Treat Boulevard, Suite1600 \O Walnut Creek, CA 94597 Telephone: (925)932-2468 O Fax No.2 (925)946-9809 MNakaraikanivas@1jttler.com t—l Attorney for Defendants N SUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION W SUPERIOR COURT 0F CALIFGRNIA COUNTY OF'SANTA CLARA NHHr—‘t—tp—‘p—a—H—‘t—I UI,A DIANA P. BLUM, M.D., CASE No. 11501277582 O\ Plaintiff,‘ [SEALED] MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF \l DEFENDANTS’ JOINT MOTION TO VS. COMPEL INDEPENDENT PSYCHIATRIC 00 EXAMINATION OF PLAINTIFF ' SUTTER HEALTH, a California \O corporation; PALO. ALTO FOUNDATION CONFIDENTIAL MEDICAL GROUP, DIG, a California O PALO ALTO MEDICAL corporation; [FILED UNDER SEAL PURSUANT TO VVVVVVVVVVVVVVVVVVV STIPULATED PROTECTIVE ORDER] N h—n . FOUNDATION, a California corporation; and DOES through 20, 1 Accompanm' g Documents: Notice of Joint Motion; Declarau‘on of Dr. Defendants. Mark Lipian; Declaration of Marciellsom Fitzsimmons; [Proposed] Order Date: November 22, 2016 Time: 9. 00 a. m. NNNMNNN ooqoxmhymm Dept. 8 Judge. Hon MaureenA Folan ' THIS ENVELOPE IS SEALED PURSUANT TO ORDER OF THE COURT, CONTAINS CONFIDENTIAL INFORMATION AND IS NOT TO BE OPENED OR THE CONTENTS REVEALED, EXCEPT BY ORDER OF THE COURT OR ' AGREEMENT BY THE PARTIES. IIOSSIMOJHSWVJ [SEALED] MEMORANDUM OF POH‘ITS AND AUTHORITIES m SUPPORT OF DEFENDANTS'. JOINT MOTION TO COMPEL INDEPENDENT PSYCHIATRIC EXAMINATION OF PLAINTIFF r r—n MARCIE ISOM FITZSIMMONS (SBN. 2.26906) HIEU TRAN (SBN: 280585) GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 San Francisco, CA 941 11 Telephone: (415) 986- 5900 Facsimile: (415) 986- 8054 Misom@gordonrees. com r Htran@gordonrces. com oooq‘o‘m,amm Attorneys for Defendant PALO ALTO FOUNDATION MEDICAL GROUP, INC. MAIKO NAKARAI-KANIVAS (SBN: 271 710) LI'ITLER MENDELSON, P.C. t 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Telephone: (925) 932-2468 Fax No.: (925) 946—9809 MNakaraikanivas@littler.com Attorney for Defendants BUTTER HEALTH and PALO ALTO MEDICAL FOUNDATION SUPERIOR COURT 0F CALIFORNIA COUNTY 0F SANTA CLARA ' - ED NMN‘NHH... mNHomeSGEGEZS DIANA P. BLUM, vs. M.D., Plaintiff, SUT'I‘ER HEALTH, a California corporation; PALO ALTO FOUNDATION MEDICAL GROUP, m0, a California comoration; PALO ALTO MEDICAL FOUNDATION, a California corporafion; and DOES 1 through 20, Defend ants. ' VVVVVVVVVVVVVV VVVVVV‘ W CASE NO. 115CV2775 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ JOINT MOTION TO COMPEL INDEPENDENT PSYCHIATRIC MEDICAL EXAMINATION OF PLAINTIFF Notice of Motion; Declaration of Dr Lipian, Declaration of Marcie Isom Fitzsimmons; [Proposed] Order Date: November 22, 2016 Time: 9:00 a.m. Deft; 84 , Iu ge: Hon.'Maurecn A. Folan Mark 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' JOINT Mn'rmN Tn r‘nMpm. mnnppNnENT nsvr‘mA Tu rr‘ Mpmr‘m pyAmATrnN (w pr ,A mTrm: . I I. INTRODUCTION Plaintiff D‘iana P. Blum, M.D., claims that she still sufi‘ers from “severe emotional UJ“N disu'css” caused by Defendants’ SU'IITER HEALTH, PALO ALTO FOUNDATION MEDICAL GROUP, INC., and PALO ALTO MEDICAL FOUNDATION (collectively ;‘Defendants") alleged conduct leading 11p to her rcsig'nation in October 2013. She claims to suffer fiom \IQMA “morbid” depression, PosI-Traumatic Stress Disorder (“PTSD”), mental anguish, anxiety, humiliation, weight gain, and insomfiia, which has-requ'ired her to takepsychotropic medication. She contends that her emotional distress resulting fiom Defendants’ conduct is worse than that she suffered from her miscarriages and that it has had‘ such a profound effect that she continues 10 to ekperience these symptoms today —- néarly three years afier her resignation. 11 Because Plaintiff‘s claimed emotional distress is far in excess of what one might expect 12 as a reactionto Defendahé’ alleged wrongful conduct related to her employment, Plaintiff has 13 indubitably placed her mental and emotional status at issue in this lawsuit Settled law provides 14 that Defendants are entitled to a psychiatric examination of Plaintiff. . 15 II. FACTUAL BACKGROUND 16 A. - ?lainfiffs Claimed Emotional bistress 17 Plaintiff resigned from Palo Alto Foundation Medical Group (“PAFMG”) and lefi her' 18 employment on October 31, 2013. She claims she was retaliated against and constructively 1 i 19 discharged. Plaintiff'1s now seeking millions of dollars 1n emotional distress damages 20 Plaintiff claims that she suffers from severe emotional distress, including depression, 21 PTSD, mental anguish", anxiety,‘ shock, humiliation, and Worry as a result of Defendants’ 22 conduct. (See Exhibit 1 to Declaration of Marcie Isdm Fitzsimmons [“Fitzsimmons Decl."])- _ 23' and that her emotional distess was more severe She testified that she was ‘fii’mrbidly” depressed 24 than what she experienced as a result of the multiple miscarriages she had previously. (See; 25 Exhibit 2, Confidential Portions ofPlaintifPs Deposition, pg. 206:4-10, t6 Fimsimmons Decl.) ~ 26 Plaintiff claims that while she was still working 'at PAFMG, she would sit in her car and cry and 27 that she was scarpd “ail the time.” (Id, Confidential Pdrtions of Plaintiff’s Deposition, pg. 206:7— 23 21 ,‘to Fitzsimrfions Decl.)') Plaintiff sought psychological counseling for her emotional distress 2 MfiTInN "m a MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANTS’ JOINT npm mnppnnnm'r psvr‘mATmr‘ MRmI‘AI PYAMWATmN m: p1 .A mTrpi: _ . ._. and was prgscfibed anti-depressants, which she still takes today. (Sec Exhibits 1 and Exhibit 2, Confidential Portions of Plaintiff’s Deposition, pg. 206:4;21 to Fitzsimmons Decl.) Plaintiff denies ever previously experiencing these typcs of syfiptoms, despité having several othelf stressors in he; lifgsuch as the death of her grandmother (who had multiple strokes), the husband’s‘ unemployment, and her daughter’s medical issues. (See Exhibit 2, Confidential. Portions of maimift‘s Deposition, pg. 206:4-21, Non-cOnfid'en'ti'al Portions of Plaintifi‘s \OOOQQLA-bWN Deposition, pg. 896221-24, 897: 14-19, to Fitzsimmons Decl.) PlaintifiT claims that she still has “PTSD anxiety atfacks” as a result of Defendants’ conduct and that rhany‘of her emotional distress symptoms recently resurfaced as a result of saeingpne of her former PAFMG colleagues. (1d, Non-Confidential Portions of Plaintiff’s Deposition, pg. 739:23-25, attached to Fitzsimmons Decl.) B. Meet and Cdnfer Effohts On October 10, 201.6, Defendants requested that Plaintiff stipulate to an independcnt psychiatric medical exam (“I'ME”). (See Exhibit 3 to Fitzsimmons Décl.) Defendants pfovided Plainfiff’s counsel with notice of who would conduct the examination, the expert’s CV,’ and a ‘ written proposed stipulation. (Ibid.) On October '13, 20] 6, Plaintifi’s counsel suggested that she would likely to stipulate to the cxaminafioh, but without any éxplanaticin, on October 19, 2016; s. Plaintifi‘ counsel informed Defendanfs’ counsel that‘she would have to move to compel the mqmmhuwwgsgza;3;§:5 examination. (Id)! C. The Qualifications of Dr. Mark Lipian and the Proposed Evaluation Thc'cxamination will be conducted by'Dr. Mark Liplan, an expert in clinical and forensic psychology who is board certified by the American Bbartl of Psychiatry and Neurology. (See Exhibit A to Declaration of Dr. Mark Lipian [“Lipian Decl.”]) He received his PhD. fi'om Yale University in 1985 and his M.D. from Yale‘University School of Medicine in 1986. (Lipian NNNNNNNN Dec]. at 1] 3.) He is currently an Assistant Clinical Phofessor in the Department of Psychiauy and Behavioral Sciences at U.C.L.A. and the Chief of Psychiatry for Forensic Outpatient ‘Normally of information would be provided in a separate Rule of Court 3.1345 this type statement. However, because Plaintiffs counsel never provided a valid objecfion to the examination, no statement is required. (Rule of Court 3.1345(b).) m ' 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ JOINT mn'rmN Tn r‘nMpm mnnmmnRNT Psvm-nATR Ir‘ MRmr‘AI PYA MTNATmN m: m .A t . e: Services for the, Orange County Health Care Agency. (Id. at 1] 2.) He has written numerofis publications on mental and emotional disorders commonly encountered in employment . litigation. (Sec Exhibit A to Lipian Decl.) Dr. Lipian proposes to conduct a sthndard, forgnsic psychiatric examination of Plaintiff, ' which clonsists of an approximately eight hour interview wherein he asks general opcn-gnded \oooqoxmAuNH questions about Plaintifi‘s mental history and the possible sources of any alleged embtional trauma. (See Lipian Dec]. at 1] 4.) The examination will include, among 'other things, inquiries intd Plaintiff‘s current complaints, the history and character ofprcyiqus psychological‘ n'mledical Work complaints, history, histoi'y, family history, family medical and psychiatric history, and social and developmental history. (Id. at fl S, 7, 9.) 'These inquin'es are important in order to determine Plaintiff’s current level ofpsychological and ncuropsychological funcu'oning. (Id. at? 5.) The cxaminafion will not include ariy physically painful tests or invasive procedures. (Id. at 1] 14.) Dr. Lipian will not make any inquiries of Plaintiff thatlv‘iolate the ethical standards of ~ his profeesjon or theistandards of competent forensic psychological practice. (Id) ’ III. LEGALARGUMENT ‘ A. Defendants Have Made a Reasonable and Good Faith Attempt to Arrange for Plaintiff’s Mental Examination Pursuant to Code of Civil'Procedure mqmmAwNwoooo'anZSET—‘S Section 2032.310 A party seeking leaVe of court to compel another party to submit to a mental examination I muét first make “a reasonable and good faith attempt to arrange for the cthinafion by . . . I agreement." (Chde Civ. ?roc. § 2032(-d).)‘ Defendants attempted to meet and confer with Plaintiff‘s counsel several times in an NNNNNMNMNH-~ efl'ort to obtain Plaintifl‘s agreement to'an IME. (See Exhibit 3 to Fitzsimmons Decl.) waevcr, Plaintiff's counsel stated that Defendants would need a court order to compel Plaintiff‘s IME. (1d) B. Has Placed Her Mental Condition In Controversy and There Plaintiff is _Good Cause to‘ Order Her Psychological Examination A court is authorized to order a mental examination of e party to the action when (1) the , t 4 . MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ JOINT Mn'rmw "m r‘nMpm mnppnnnFNT psvrmATn Ir‘ MRnIFA RYAMrNAT'rnN m: m .Am'rm: . I . mental condition of that party “in controversy in the action" and moving party shows is (2) the .I_. I “good cause" for such examinafion. (Code Civ. Proc. § 2032.320.) Defendants have sufficiently satisfied bdrh ofthese requirements and, thus, respectfully request this Court O_rder Plaintiff to submitlto a psychiauic examination. 1. Plaintiff’s Mefital Condition Is in Cémtroversx koooxioi_m.pwm A plaifitifi‘s mental condition i's placed “in controversy” when the plaintiff alleges mental injury and the injury or extent of injury is denicd‘ (Reuters v. Superior Cour! (1979) 93 Cal~.App.3d 332, 341 [citing Schlagenhaufv. Holdelf,l(1964) 379 U.S. 104, 119].) When a plaintiff hails a defendant into chum, accusing that defendant of causing mental and emotional injufieé, and the defendant denies those charges, “the Existence and extent of [the~p1a1nti.fl’s] mental injuries arc indubitably in dispute.” (Vinson v. Superior Court (1987) 43 Ca1.3d 833, ' ' ' 839—840.) . In Vinson, the defehdmts sought to compel a mental examination and discover the sexual history of the plaintiff, a 59-year-old woman suihg them for sexual haiassment, wrongful discharge, and intentional infliction'of emotional distress. (Id at 837.) The plaintiff alleged that the defendants’ actions caused “her to sufler continuing emotional distress, loss of sleep, anxiety, mental anguish, humiliation, reduced self—esteem, and other conseqhences.” (Id) The cdurt NNNNNNNNND—‘v—‘Hr—p—Av—nb—IHHH determined that the plaintiff‘s mental condition was in controversy, stating that “a pany who in controversy”- hence, the plaintiff the defendants. (1d) ‘ resfilt to Here. Plaintiff alleges WW chooses to allege that he has mental or emotional diffictllties ean hardly deny his mental state was ordered of Defendants‘ alleged conduct. Plaintiff alleges sufier from “severe emotional symptoms of sleep loss, PTSD, to distress,” including feeling anxiety, and mental anguish. undergo the mental examination requested by that Defendants’ actions ‘ suffered subposedly'as a have caused her “morbidly depressed” and having. (See-Exhibit 2 to Fitzsimmons is Decl.) Plaintifl‘s alleged emotibnal distess is so severe, she is still being tteated for it and continuesto have “PTSD anxiety attacks," among other symptoms as a result of Defendants‘ . alleged conduct. (Id.) 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANTS’ JOINT Mn'r‘trw Tn (‘nMpm mnnppNnFNT , psvr‘HrA'rmr‘ Mpnrr‘u . mm MmATmN m: m mm: .A Defendants deny the existence and severity of Plaintiffs purported emotional distress and N dispute that they caused her emotional injuries. In addition; there a're possible alternative cau.ses~ for Plaintifi‘s purported emotional distress, including pre—existing condigions and the possibility - that Plaintifi’s symptoms érise fiom other strcssors in her life. For instance, Plaintiff testified that during this same time she also experienced the death of her grandmother, the unemployment Ito of her husbahd, and the illness of her daughter. (See Exhibit 2 Fituimmons Decl.) Without \Owflmmkw question, the existence and extent of Plaintiff‘s mental injuries is "indubitably in dispute.” - ‘ (Vinson v. Superior Court, supra, 43 Cal.3d at 840.) i 2. Good Cause Exists for a Mental Examination 10 Good cause exists for a mental examinatiort where the plaintifl seeks recovery for ll continuing severe emotional distress, her mental condition is directly related to her emotional 12 distress claim, and the ihformation is necessary to a fair resolution of the'lawsuit. (Vinson, 13 supra, 43 Cal.3d at 842 [citing Britt v. Superior Cqurt, (1978) 20iCal.3d 844, 859].) 14 , Pléintiff contends that she sufiers fiom remarkably severe emotional distress attributable 15 to Defehdants’ conduct. (See Exhibit 1 to Fitzsimmons Decl.) She Claims that she suffers fijom ' 16 severe depression, PTSD, mental anguish, anxiety, shock, humiliation, sleep deprivation, and 17' won'y as a result of Defendants’ condu'ct. (See Exhibits l and 2 to Fitzsimmohs Decl.)' 18 Plaintiff cannot “makefl very serious allegations withoht affording defendants an 19 opportunity to put their truth to the test.” (Vinson v. Superior’ Court, supra, 42 Cal.3d at 842, 20 emphasis added.) “Becau_se the truth of these claims is relevant to plaintiff‘s causes of action 21 and justifying facts have been shown with specificity; good cause as to these assertions has been 22' 840-841 The defendant Vinaian siinply pointed to plaintiffs demonstiated.” (1d. -at .) ir1 23 Allegations, vhhich the court deemed sufficient to constitute goodieause. (Id) .24