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MARCIE ISOM FITZSIMMONS (SBN: 226906)
AMBER A. EKLOF (SBN: 305750)
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
FILED
San Francisco, CA 94111 SAN MATEO COUNTY
Telephone: (415) 986-5900 SEP 2 8.2018
Facsimile: (415) 986-8054
misom@grsm.com ie
aeklof@grsm.com
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Attorneys for Defendant P
TRUSTEES OF THE LELAND
STANFORD JUNIOR UNIVERSITY, erroneously sued as
THE LELAND STANFORD JUNIOR UNIVERSITY
SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN MATEO
1
72 12 ALI TAGHAVI, an individual CASE NO. 17CIV04570
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SHa Is THE LELAND STANFORD JUNIOR DEFENDANT STANFORD UNIVERSITY’S
aEE UNIVERSITY, a California nonprofit MOTION TO COMPEL PLAINTIFF’S
Som 16 corporation, doing business as PSYCHIATRIC INDEPENDENT
gas STANFORD UNIVERSITY; ALTICOR, MEDICAL EXAMINATION
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ga INC., a Michigan corporation; and DOES
1-10, inclusive. Accompanying Documents: Declaration of
18 Marcie Fitzsimmons; Declaration of Mark
Defendants. Strassberg; Notice of Motion; Proposed Order;
19 Notice of Lodging
20 Date: Novemberié, 2018
Time: 9:00 a.m.
21 Dept: Law and Motion
22 Trial Date: December 17, 2018
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24 —_——
—— _ —_
25 47-c1v 08870 upt
MPAS uthorities i ‘S
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
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Plaintiff ALI TAGHAVI (“Plaintiff”) claims that he is so emotionally impaired by
Defendant STANFORD UNIVERSITY’s (“Defendant” or “Stanford”) alleged discriminatory
treatment and his purported wrongful termination, that he [eae
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Defendant’s conduct had such a profound impact on him that he still suffers severe emotional
distress over two years after his termination. Because Plaintiff's claimed emotional distress is
far in excess of what one might expect as a reaction toDefendant’s alleged wrongful conduct,
10 settled law provides that Defendant is entitled to a psychological examination of Plaintiff.
11 IL RELEVANT FACTS
7S 12 A. Plaintiff's Alleged Emotional Distress
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#2r 13 Plaintiff worked as the Communications Manager for the Stanford Prevention Research
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gat Center (“SPRC”) from July 6, 2015 until his termination due to poor performance during his trial
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Be 16 Plaintiff alleges that as a result of Defendant’s conduct he has experienced severe and on-
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18 Complaint {ff 41,52, Exhibit 1 to the Declaration of Marcie Fitzsimmons [“Fitzsimmons Decl.”]
19 2; Plaintiffs Responses Form Interrogatories, Exhibit 2 to Fitzsimmons Decl.) [AE
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
10 B. The Qualifications of Mark Strassberg and the Proposed Examination
11 Dr. Strassberg is an expert in clinical and forensic psychiatry, whose credentials are
12 beyond reproach. (Declaration of Mark Strassberg [“Strassberg Decl.”].) He received his MD
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22s 13 from the State University of New York in 1977 and became certified by the American Board of
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20 14 Psychiatry and Neurology in 1984. (Strassberg Decl. at § 2.) He has his own private practice in
23
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Ba 15 San Francisco, California specializing in neurology and psychiatry. Dr. Strassberg is also a
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Bou 16 Preceptor for Residents and Interns at St. Mary’s Medical Center. (Jd.)
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gun 17 Dr. Strassberg proposes to conduct a standard, forensic psychiatric examination of
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18 Plaintiff, which consists of a four hour interview where he asks general open-ended questions
19 about Plaintiffs mental history and the possible sources of any alleged emotional trauma. (/d. at
20 {91 4-6.) The examination will not include any physically painful tests or invasive procedures.
21 (ia.)
22 DL. LEGAL ARGUMENT
23 Defendant Has Made a Reasonable and Good Faith Attempt to Arrange for
Plaintiff's Mental Examination Pursuant to Code of Civil Procedure Section
24 2032.310
25 A party seeking leave of court to compel another party to submit to a mental examination
26 must first make “a reasonable and good faith attempt to arrange for the examination by...
27 agreement.” (Code Civ. Pro. § 2032.310(b).)
28 Defense counsel attempted to stipulate to Plaintiffs participation in the psychological
3+
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
examination, but Plaintiff's counsel refused. (Exhibits 4 to Fitzsimmons Decl.) On September
21, 2018, Defendant’s counsel sent Plaintiffs counsel a meet and confer letter seeking a
stipulation to the IME and requested a response back by September 25. (Id.) Having received no
response, Defendant’s followed up on September 26. (/d.) Plaintiff's counsel responded
indicating that his “conditions” for an IME “are typically”: (1) one doctor; (2) a complete plan
for the examination; (3) no defense attorneys present; (4) someone from plaintiffs attorney’s
office present and recording the discussion; (5) no questions about plaintiff’s history or
termination; and (6) a copy of the report within a reasonable time. (Jd.) Defendant’s counsel
responded that same day and agreed to Plaintiff's conditions with the exception of his conditions
10 related to his being present and the scope of questions. (Id.)
11 On September 26, 2018, Defendant’s counsel sent Plaintiff's counsel a proposed
7S 12 stipulation indicating that the exam would be conducted by Dr. Strassberg, on a mutually
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His 13 convenient date before the close of discovery, that it would be in the form of an open-ended
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Ea 14 interview lasting no more than four hours, that Plaintiff and/or Dr. Strassberg could record it, that
23
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BEB 15 no attorneys would be present, and that Defendant would provide a report. (/d.) Defendant’s
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Se 16 counsel asked for a response by the close of business on September 26, but Plaintiffs counsel
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zon 17 did not respond.! (Jd.) On September 27, 2018, Defendant’s counsel again requested a response,
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19 ! Defendant’s counsel also asked Plaintiffs counsel if he was “willing to stipulate that [plaintiff] is only asserting
garden variety emotional distress and that [he does] not plan to offer psychiatric testimony at trial,” but Plaintiff
20 never responded to that inquiry. (Exhibit 4 to Fitzsimmons Decl.) Regardless, a plaintiff's mental condition cannot
be taken out of controversy simply because, for strategic reasons, he no longer claims to be suffering from
21 continuing emotional distress. (See e.g. Lytel v. Simpson, 2006 U.S. Dist. LEXIS 53927 (N.D. Cal. July 21, 2006);
see also Reuters, supra 93 Cal.App.3d at 337 [Because section 2032 was based on Federal Rule 35, judicial
construction of the federal rule may be useful in construing section 2032].) In Ly/el, the plaintiff argued that there
22
was no “good cause” for the exam because she only alleged “garden variety” emotional distress, did not plan on
designating an expert to testify about her mental condition, and agreed to abandon her emotional distress claim. (Id.
23 at 14.) The District Court granted the defendant’s motion to compel an IME, holding that “good cause” existed,
indicating that plaintiff was denying ongoing emotional distress for “strategic” reasons. (Id.) The District Court
24 explained:
25 [W)here there is in fact continuing distress and only a strategic decision by an individual to place a
temporal limit to her claim of damages for such distress, the distress still exists and observation of
the individual by a medical examiner does provide a level of information that is not available from
26 prior medical records and the deposition testimony from the treating physician.
27 (Id.) The District Court also concluded that denying the defendant’s motion for an IME “would deprive [defendant]
of a fair opportunity to defend against [plaintiff's] claims of emotional distress in the event [plaintiff] is later
28 allowed to submit her treating physician’s testimony.” (Id. at 17.)
4.
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
but as of the time of this filing, Plaintiff's counsel has not responded further. (Id.)
B. A Mental Examination of Plaintiff Is Authorized Pursuant to Code of Civil
Procedure Section 2032.310 Because Plaintiff Claims Continued Severe Emotional
Distress as a Result of Defendant’s Conduct and There Is Good Cause for Such
Examination
A court is authorized to order a mental examination of a party to the action when (1) the
mental condition of that party is “in controversy in the action” and (2) the moving party shows
“good cause” for such examination. (Code Civ. Pro. § 2032.320) As set forth below, Defendant
has sufficiently satisfied both of these requirements and, thus, respectfully requests this Court to
order Plaintiff to submit to a mental examination.
1 Plaintiff's Mental Condition Is Currently In Controversy
10
To obtain a court ordered mental examination of Plaintiff, Defendant must first
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demonstrate that Plaintiff's mental condition is “in controversy.” (Code Civ. Pro. § 2032.020.)
72 12
gon A plaintiff's mental condition is placed “in controversy” when the complaint alleges mental
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Cal.App.3d 332, 341 [citing Schlagenhauf v. Holder, (1964) 379 U.S. 104, 119].) When a
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ba plaintiff hails a defendant into court, accusing that defendant of causing mental and
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me emotional injuries, and the defendant denies those charges, “the existence and extent of
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[the plaintiff's] mental injuries are indubitably in dispute.” (Vinson v. Superior Court (1987)
18
43 Cal.3d 833, 839-840; emphasis added.)
19
Plaintiff alleges remarkably severe emotional injuries suffered supposedly asa result of
20
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Defendant’s alleged conduct. [II
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Defendant denies the severity of Plaintiff's purported emotional distress anc disputes that
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it attributed to his emotional injuries. There are possible alternative causes for Plaintiff's
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
purported emotional distress, including pre-existing conditions for which he sought treatment
previously after he was laid off from a prior employer, and the possibility that Plaintiff's
emotional distress originates from other stressors in his life, or that he is malingering. Without
question, the existence and extent of Plaintiff's mental injuries is “indubitably in dispute,”
thereby authorizing this Court to order Plaintiff to submit to an independent mental examination
pursuant to section 2032.020. (Reuters, supra, 93 Cal.App.3d at 341.)
Directly on point is Vinson v. Superior Court (1987) 43 Cal.3d 833. There, the
defendants sought to compel a mental examination and discover the sexual history of the
plaintiff, a 59-year-old woman who sued them for sexual harassment, wrongful discharge, and
10 intentional infliction of emotional distress. (Jd. at 837.) The plaintiff alleged that the
ll defendants’ actions caused “her to suffer continuing emotional distress, loss of sleep, anxiety,
7S 12 mental anguish, humiliation, reduced self-esteem, and other consequences.” (/d.) The court
gSo=
ganom 13 determined that the plaintiff's mental condition was directly in controversy despite the fact that
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20 14 the plaintiff denied that her mental condition was at issue. (Id. at 839.) The court stated that “a
23
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a 16 mental state is in controversy”—hence, the plaintiff was ordered to undergo the mental
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18 As in Vinson, Plaintiff alleges that Defendant’s actions caused him to suffer uncommon,
19 serious emotional injuries with on-going effects lasting more than two years. However, unlike in
20 Vinson, Plaintiff does not even deny that his mental condition is at issue — Plaintiff has identified
21 his emotional injuries in discovery, testified about them during his deposition, and is claiming
22 emotional damages, thereby acknowledging Plaintiff's mental condition is in controversy.
23 Settled controlling case law compels the discovery sought here by Defendant as Plaintiff
24 has placed his mental and emotional condition squarely at issue.
25 2. Good Cause Exists for a Court Ordered Mental Examination
26 Once the Court determines that Plaintiffs mental or emotional condition is in
27 controversy, the Court may grant Defendant’s motion for a mental examination “for good cause
28 shown.” (Code Civ. Pro. § 2032.320.) Good cause exists for a mental examination of a plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
where she seeks recovery for continuing severe emotional distress, his mental condition is
directly related to his emotional distress claim, and the information is necessary to a fair
resolution of the lawsuit. (Vinson, supra, 43 Cal.3d at 842 [citing Britt v. Superior Court, (1978)
20 Cal.3d 844, 859].)
In Vinson, for example, the plaintiff claimed continuing emotional distress as a result of
the defendant’s conduct. (43 Cal.3d at 837.) The court determined that the plaintiff's privacy
tights regarding her mental health were waived with respect to her mental and emotional state,
and ordered a mental examination. (Jd. at 840-841.) The sole caveat of that court’s ruling was
that the plaintiff’s sexual privacy rights were not waived -- however, inquiry into the plaintiff's
10 mental and emotional condition, including any preexisting or alternative sources for her distress,
ll was not limited. (Id. at 841-842.) The same should hold true in the present action.
72
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20 14 Decl..) He is also seeking significant damages for that emotional distress. (See Exhibit 2 to
23
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Ba 15 Fitzsimmons Decl.) Plaintiff cannot “make[] very serious allegations without affording
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gem 16 defendants an opportunity to put their truth to the test.” (Vinson, supra, 43 Cal.3d at 842.)
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ga 17 “Because the truth of these claims is relevant to plaintiff's cause of action and justifying facts
18 have been shown with specificity, good cause as to these assertions has been demonstrated.” (Jd.
19 at 840-841.) The defendant in Vinson simply pointed to plaintifP s allegations, which the court
20 deemed sufficient to constitute good cause. (Jd.) In the present action, Plaintiff's pleadings,
21 discovery responses, and deposition testimony establish without a doubt, Plaintiff's claim for
22 continuing severe emotional distress. Under these circumstances, this Court is clearly authorized
23 to grant Defendant’s request for a court ordered mental examination of Plaintiff.
24 Cc The Conditions Plaintiff is Seeking for the Exam Are Unwarranted and Not Legally
Supported
~~ 25
1. Plaintiff is Not Entitled to Have His Counsel Attend the Exam
26
The purposes of a mental examination are best served by not permitting the plaintiff's
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counsel to be present at the examination, since the examination will only be effective and lead to
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
a fair and objective evaluation of the examinee’s mental and emotional condition if conducted on
a one-to-one basis. (Vinson, supra, 43 Cal. 3d at 844-846.) As a result, in most cases, counsel is
not permitted to attend a mental examination. (Edwards v. Superior Court (1976) 16 Cal.3d 907.)
Unlike a physical examination, which is not focused on the plaintiff's mental processes, a mental
examination is almost solely devoted to ascertaining those processes, “for the purpose of forming
an accurate picture of his mental condition.” (Jd. at 910.) The personal interview (“the basic tool
of psychiatric study”) requires rapport between the examiner and examinee: “[s]urely the
presence and participation of counsel would hinder the establishment of the rapport that is so
necessary in a psychiatric examination.” (id.) While trial courts retain the discretion to allow
10 counsel’s presence when needed to protect the person being examined, “in most cases, counsel is
ll not be permitted to attend a mental examination.” (Golfland Entertainment Centers, Inc. v.
7S 12 Superior Court (2003) 108 Cal.App.4th 739, 747 [holding presence of counsel not permitted for
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22 13 examination of a 10 year old boy because the record lacked evidence that counsel was necessary
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sU 14 to protected the boy]; see also In Toyota Motor Sales, U.S.A., Inc. v. Superior Court (2010) 189
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aa 15 Cal.App.4th 1391 [holding that the trial court erred in permitting the plaintiffs attorney to be
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gin 16 present in an adjoining room to monitor the examination].)
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sa 17 There is no reason why Plaintiff needs to be “protected” by his attorney during his
18 examination. Plaintiff is an adult and has not demonstrated any special need to be protected by
19 his counsel. Dr. Strassberg is a well credentialed and experienced licensed psychiatrist who is
20 not going to be conducting any harmful or physical tests of Plaintiff and the entire examination
21 can be audiotaped. (Strassberg Decl. {] 2-6.)
22 2. Dr. Strassberg Should Be Permitted to Ask About Prior History and
Plaintiff's Termination
23
There is no legal authority or even sound rationale supporting Plaintiffs argument that
24
the examination should be limited “to emotional distress symptoms after termination and current
25
conditions” and that Dr. Strassberg should not be permitted to explore Plaintiffs prior history
26
and termination. To the contrary, the exploration of past experiences is crucial to a true and
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correct determination of medical causation — specifically, whether or not a subject’s claimed
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL,
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
emotional distress or condition was caused by the conduct forming the basis of the lawsuit or by
some alternate source or sources. (See Vinson, supra, 43 Cal.3d at 842 [permitting exploration
of preexisting or alternative sources for distress as part of exam]; Strassberg Decl. ¥ 5.)
Plaintiffs medical history must be examined in order to reveal not only the possible
existence of an underlying, biological psychiatric disorder, episodes of which have manifested
themselves on prior occasions, but also such indicia of personality disorders, substance abuse,
physical complaints that have psychosomatic origin, and referrals for psychiatric
treatment. (Strassberg Decl. § 5.) While Dr. Strassberg has no desire to pry unnecessarily into
Plaintiff's personal life, a valid psychiatric examination must include a review of the subject’s
10 medical and mental health history. (/d.) Among the issues a forensic examiner is called upon to
11 testify about are the factors which have affected the psychological condition of the subject. To
7S 12 do so, he must determine, for example, whether Plaintiff suffered from prior traumas that may
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495 13 bear on his current mental state. (/d.) As such, a meaningful examination necessary to establish
32
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20 14 causation requires the exploration of Plaintiff's prior history and his termination from Stanford,
23
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BPs 15 which he contends was a significant trigger for him. (Jd.) This is particularly important here
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18 Fitzsimmons Decl.)
19 IV. CONCLUSION
20 In accordance with the foregoing facts, Defendant respectfully requests that this Court
21 order Plaintiff to submit to an independent mental examination or, in the alternative, preclude
22 Plaintiff from making any claim for emotional distress damages.
23 Dated: September 28, 2018 GORDON REES SCULLY MANSUKHANI, LLP
24
B / lL
25 Marcie Isom Fitzsimmons
Amber A. Eklof
26 Attomeys for Defendant
TRUSTEES OF THE LELAND STANFORD
27 JUNIOR UNIVERSITY, erroneously sued as THE
LELAND STANFORD JUNIOR UNIVERSITY
28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
Preview
» MARCIE ISOM FITZSIMMONS (SBN: 226906) AMBER A. EKLOF (SBN: 305750) GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 FILED San Francisco, CA 94111 SAN MATEO COUNTY Telephone: (415) 986-5900 SEP 2 8.2018 Facsimile: (415) 986-8054 misom@grsm.com ie aeklof@grsm.com Sor Attorneys for Defendant P TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, erroneously sued as THE LELAND STANFORD JUNIOR UNIVERSITY SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 1 72 12 ALI TAGHAVI, an individual CASE NO. 17CIV04570 gESu gan #2rz 13 Plaintiff, REDACTED, PUBLIC VERSION BEA aa Zed 14 VS. MEMORANDUM OF POINTS AND 23 >s AUTHORITIES IN SUPPORT OF 2s SHa Is THE LELAND STANFORD JUNIOR DEFENDANT STANFORD UNIVERSITY’S aEE UNIVERSITY, a California nonprofit MOTION TO COMPEL PLAINTIFF’S Som 16 corporation, doing business as PSYCHIATRIC INDEPENDENT gas STANFORD UNIVERSITY; ALTICOR, MEDICAL EXAMINATION gown 17 ga INC., a Michigan corporation; and DOES 1-10, inclusive. Accompanying Documents: Declaration of 18 Marcie Fitzsimmons; Declaration of Mark Defendants. Strassberg; Notice of Motion; Proposed Order; 19 Notice of Lodging 20 Date: Novemberié, 2018 Time: 9:00 a.m. 21 Dept: Law and Motion 22 Trial Date: December 17, 2018 23 24 —_—— —— _ —_ 25 47-c1v 08870 upt MPAS uthorities i ‘S ernorandum of Points and ‘A 26 \ MMMwu 4415801 27 28 -1- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION pee we PRL eth ete 1On ‘= c* SO S L INTRODUCTION Plaintiff ALI TAGHAVI (“Plaintiff”) claims that he is so emotionally impaired by Defendant STANFORD UNIVERSITY’s (“Defendant” or “Stanford”) alleged discriminatory treatment and his purported wrongful termination, that he [eae ee eS | 2intis contends that Defendant’s conduct had such a profound impact on him that he still suffers severe emotional distress over two years after his termination. Because Plaintiff's claimed emotional distress is far in excess of what one might expect as a reaction toDefendant’s alleged wrongful conduct, 10 settled law provides that Defendant is entitled to a psychological examination of Plaintiff. 11 IL RELEVANT FACTS 7S 12 A. Plaintiff's Alleged Emotional Distress Sa gan 305 #2r 13 Plaintiff worked as the Communications Manager for the Stanford Prevention Research BEA 33 gat Center (“SPRC”) from July 6, 2015 until his termination due to poor performance during his trial Ed 14 Zz3e pe 2s period on May 6, 2016. Ba 15 Be 16 Plaintiff alleges that as a result of Defendant’s conduct he has experienced severe and on- ae gO going “mental and emotional distress,” which continues to this day. (See First Amended sa 17 18 Complaint {ff 41,52, Exhibit 1 to the Declaration of Marcie Fitzsimmons [“Fitzsimmons Decl.”] 19 2; Plaintiffs Responses Form Interrogatories, Exhibit 2 to Fitzsimmons Decl.) [AE 20 21 22 23 24 25 26 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION 10 B. The Qualifications of Mark Strassberg and the Proposed Examination 11 Dr. Strassberg is an expert in clinical and forensic psychiatry, whose credentials are 12 beyond reproach. (Declaration of Mark Strassberg [“Strassberg Decl.”].) He received his MD gSn san 22s 13 from the State University of New York in 1977 and became certified by the American Board of 5 =a aaA< 20 14 Psychiatry and Neurology in 1984. (Strassberg Decl. at § 2.) He has his own private practice in 23 > 2s Ba 15 San Francisco, California specializing in neurology and psychiatry. Dr. Strassberg is also a oe Bou 16 Preceptor for Residents and Interns at St. Mary’s Medical Center. (Jd.) 28 gun 17 Dr. Strassberg proposes to conduct a standard, forensic psychiatric examination of ga 18 Plaintiff, which consists of a four hour interview where he asks general open-ended questions 19 about Plaintiffs mental history and the possible sources of any alleged emotional trauma. (/d. at 20 {91 4-6.) The examination will not include any physically painful tests or invasive procedures. 21 (ia.) 22 DL. LEGAL ARGUMENT 23 Defendant Has Made a Reasonable and Good Faith Attempt to Arrange for Plaintiff's Mental Examination Pursuant to Code of Civil Procedure Section 24 2032.310 25 A party seeking leave of court to compel another party to submit to a mental examination 26 must first make “a reasonable and good faith attempt to arrange for the examination by... 27 agreement.” (Code Civ. Pro. § 2032.310(b).) 28 Defense counsel attempted to stipulate to Plaintiffs participation in the psychological 3+ MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION examination, but Plaintiff's counsel refused. (Exhibits 4 to Fitzsimmons Decl.) On September 21, 2018, Defendant’s counsel sent Plaintiffs counsel a meet and confer letter seeking a stipulation to the IME and requested a response back by September 25. (Id.) Having received no response, Defendant’s followed up on September 26. (/d.) Plaintiff's counsel responded indicating that his “conditions” for an IME “are typically”: (1) one doctor; (2) a complete plan for the examination; (3) no defense attorneys present; (4) someone from plaintiffs attorney’s office present and recording the discussion; (5) no questions about plaintiff’s history or termination; and (6) a copy of the report within a reasonable time. (Jd.) Defendant’s counsel responded that same day and agreed to Plaintiff's conditions with the exception of his conditions 10 related to his being present and the scope of questions. (Id.) 11 On September 26, 2018, Defendant’s counsel sent Plaintiff's counsel a proposed 7S 12 stipulation indicating that the exam would be conducted by Dr. Strassberg, on a mutually eeox sanom His 13 convenient date before the close of discovery, that it would be in the form of an open-ended ea ga Ea 14 interview lasting no more than four hours, that Plaintiff and/or Dr. Strassberg could record it, that 23 ne 2s BEB 15 no attorneys would be present, and that Defendant would provide a report. (/d.) Defendant’s Pe se Se 16 counsel asked for a response by the close of business on September 26, but Plaintiffs counsel mm zon 17 did not respond.! (Jd.) On September 27, 2018, Defendant’s counsel again requested a response, ga 18 19 ! Defendant’s counsel also asked Plaintiffs counsel if he was “willing to stipulate that [plaintiff] is only asserting garden variety emotional distress and that [he does] not plan to offer psychiatric testimony at trial,” but Plaintiff 20 never responded to that inquiry. (Exhibit 4 to Fitzsimmons Decl.) Regardless, a plaintiff's mental condition cannot be taken out of controversy simply because, for strategic reasons, he no longer claims to be suffering from 21 continuing emotional distress. (See e.g. Lytel v. Simpson, 2006 U.S. Dist. LEXIS 53927 (N.D. Cal. July 21, 2006); see also Reuters, supra 93 Cal.App.3d at 337 [Because section 2032 was based on Federal Rule 35, judicial construction of the federal rule may be useful in construing section 2032].) In Ly/el, the plaintiff argued that there 22 was no “good cause” for the exam because she only alleged “garden variety” emotional distress, did not plan on designating an expert to testify about her mental condition, and agreed to abandon her emotional distress claim. (Id. 23 at 14.) The District Court granted the defendant’s motion to compel an IME, holding that “good cause” existed, indicating that plaintiff was denying ongoing emotional distress for “strategic” reasons. (Id.) The District Court 24 explained: 25 [W)here there is in fact continuing distress and only a strategic decision by an individual to place a temporal limit to her claim of damages for such distress, the distress still exists and observation of the individual by a medical examiner does provide a level of information that is not available from 26 prior medical records and the deposition testimony from the treating physician. 27 (Id.) The District Court also concluded that denying the defendant’s motion for an IME “would deprive [defendant] of a fair opportunity to defend against [plaintiff's] claims of emotional distress in the event [plaintiff] is later 28 allowed to submit her treating physician’s testimony.” (Id. at 17.) 4. MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION but as of the time of this filing, Plaintiff's counsel has not responded further. (Id.) B. A Mental Examination of Plaintiff Is Authorized Pursuant to Code of Civil Procedure Section 2032.310 Because Plaintiff Claims Continued Severe Emotional Distress as a Result of Defendant’s Conduct and There Is Good Cause for Such Examination A court is authorized to order a mental examination of a party to the action when (1) the mental condition of that party is “in controversy in the action” and (2) the moving party shows “good cause” for such examination. (Code Civ. Pro. § 2032.320) As set forth below, Defendant has sufficiently satisfied both of these requirements and, thus, respectfully requests this Court to order Plaintiff to submit to a mental examination. 1 Plaintiff's Mental Condition Is Currently In Controversy 10 To obtain a court ordered mental examination of Plaintiff, Defendant must first jl demonstrate that Plaintiff's mental condition is “in controversy.” (Code Civ. Pro. § 2032.020.) 72 12 gon A plaintiff's mental condition is placed “in controversy” when the complaint alleges mental gan Zar 13 sea ae injury and the injury or extent of injury is denied. (Reuters v. Superior Court (1979) 93 ga< Bed 14 23 pe Cal.App.3d 332, 341 [citing Schlagenhauf v. Holder, (1964) 379 U.S. 104, 119].) When a 2s Ba 15 ba plaintiff hails a defendant into court, accusing that defendant of causing mental and ee gia 16 me emotional injuries, and the defendant denies those charges, “the existence and extent of gon ga 17 [the plaintiff's] mental injuries are indubitably in dispute.” (Vinson v. Superior Court (1987) 18 43 Cal.3d 833, 839-840; emphasis added.) 19 Plaintiff alleges remarkably severe emotional injuries suffered supposedly asa result of 20 21 Defendant’s alleged conduct. [II a 22 23 24 ee 25 a 26 Defendant denies the severity of Plaintiff's purported emotional distress anc disputes that 27 it attributed to his emotional injuries. There are possible alternative causes for Plaintiff's 28 5- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION purported emotional distress, including pre-existing conditions for which he sought treatment previously after he was laid off from a prior employer, and the possibility that Plaintiff's emotional distress originates from other stressors in his life, or that he is malingering. Without question, the existence and extent of Plaintiff's mental injuries is “indubitably in dispute,” thereby authorizing this Court to order Plaintiff to submit to an independent mental examination pursuant to section 2032.020. (Reuters, supra, 93 Cal.App.3d at 341.) Directly on point is Vinson v. Superior Court (1987) 43 Cal.3d 833. There, the defendants sought to compel a mental examination and discover the sexual history of the plaintiff, a 59-year-old woman who sued them for sexual harassment, wrongful discharge, and 10 intentional infliction of emotional distress. (Jd. at 837.) The plaintiff alleged that the ll defendants’ actions caused “her to suffer continuing emotional distress, loss of sleep, anxiety, 7S 12 mental anguish, humiliation, reduced self-esteem, and other consequences.” (/d.) The court gSo= ganom 13 determined that the plaintiff's mental condition was directly in controversy despite the fact that #2 Sa gad 20 14 the plaintiff denied that her mental condition was at issue. (Id. at 839.) The court stated that “a 23 2s 2s ga 15 party who chooses to allege that he has mental or emotional difficulties can hardly deny his a 16 mental state is in controversy”—hence, the plaintiff was ordered to undergo the mental me gw sa 17 examination requested by the defendants. (Id.) 18 As in Vinson, Plaintiff alleges that Defendant’s actions caused him to suffer uncommon, 19 serious emotional injuries with on-going effects lasting more than two years. However, unlike in 20 Vinson, Plaintiff does not even deny that his mental condition is at issue — Plaintiff has identified 21 his emotional injuries in discovery, testified about them during his deposition, and is claiming 22 emotional damages, thereby acknowledging Plaintiff's mental condition is in controversy. 23 Settled controlling case law compels the discovery sought here by Defendant as Plaintiff 24 has placed his mental and emotional condition squarely at issue. 25 2. Good Cause Exists for a Court Ordered Mental Examination 26 Once the Court determines that Plaintiffs mental or emotional condition is in 27 controversy, the Court may grant Defendant’s motion for a mental examination “for good cause 28 shown.” (Code Civ. Pro. § 2032.320.) Good cause exists for a mental examination of a plaintiff -6- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION where she seeks recovery for continuing severe emotional distress, his mental condition is directly related to his emotional distress claim, and the information is necessary to a fair resolution of the lawsuit. (Vinson, supra, 43 Cal.3d at 842 [citing Britt v. Superior Court, (1978) 20 Cal.3d 844, 859].) In Vinson, for example, the plaintiff claimed continuing emotional distress as a result of the defendant’s conduct. (43 Cal.3d at 837.) The court determined that the plaintiff's privacy tights regarding her mental health were waived with respect to her mental and emotional state, and ordered a mental examination. (Jd. at 840-841.) The sole caveat of that court’s ruling was that the plaintiff’s sexual privacy rights were not waived -- however, inquiry into the plaintiff's 10 mental and emotional condition, including any preexisting or alternative sources for her distress, ll was not limited. (Id. at 841-842.) The same should hold true in the present action. 72 §Sou 12 Plaintiff cir ta gan son #2 a 13 (22x bibit 3 to Fitzsimmons ga 20 14 Decl..) He is also seeking significant damages for that emotional distress. (See Exhibit 2 to 23 ps 2s Ba 15 Fitzsimmons Decl.) Plaintiff cannot “make[] very serious allegations without affording Pe sé gem 16 defendants an opportunity to put their truth to the test.” (Vinson, supra, 43 Cal.3d at 842.) mR gD ga 17 “Because the truth of these claims is relevant to plaintiff's cause of action and justifying facts 18 have been shown with specificity, good cause as to these assertions has been demonstrated.” (Jd. 19 at 840-841.) The defendant in Vinson simply pointed to plaintifP s allegations, which the court 20 deemed sufficient to constitute good cause. (Jd.) In the present action, Plaintiff's pleadings, 21 discovery responses, and deposition testimony establish without a doubt, Plaintiff's claim for 22 continuing severe emotional distress. Under these circumstances, this Court is clearly authorized 23 to grant Defendant’s request for a court ordered mental examination of Plaintiff. 24 Cc The Conditions Plaintiff is Seeking for the Exam Are Unwarranted and Not Legally Supported ~~ 25 1. Plaintiff is Not Entitled to Have His Counsel Attend the Exam 26 The purposes of a mental examination are best served by not permitting the plaintiff's 27 counsel to be present at the examination, since the examination will only be effective and lead to 28 -7- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION a fair and objective evaluation of the examinee’s mental and emotional condition if conducted on a one-to-one basis. (Vinson, supra, 43 Cal. 3d at 844-846.) As a result, in most cases, counsel is not permitted to attend a mental examination. (Edwards v. Superior Court (1976) 16 Cal.3d 907.) Unlike a physical examination, which is not focused on the plaintiff's mental processes, a mental examination is almost solely devoted to ascertaining those processes, “for the purpose of forming an accurate picture of his mental condition.” (Jd. at 910.) The personal interview (“the basic tool of psychiatric study”) requires rapport between the examiner and examinee: “[s]urely the presence and participation of counsel would hinder the establishment of the rapport that is so necessary in a psychiatric examination.” (id.) While trial courts retain the discretion to allow 10 counsel’s presence when needed to protect the person being examined, “in most cases, counsel is ll not be permitted to attend a mental examination.” (Golfland Entertainment Centers, Inc. v. 7S 12 Superior Court (2003) 108 Cal.App.4th 739, 747 [holding presence of counsel not permitted for gSe gan 22 13 examination of a 10 year old boy because the record lacked evidence that counsel was necessary =a gna sU 14 to protected the boy]; see also In Toyota Motor Sales, U.S.A., Inc. v. Superior Court (2010) 189 =3 >S 2s aa 15 Cal.App.4th 1391 [holding that the trial court erred in permitting the plaintiffs attorney to be ef oe gin 16 present in an adjoining room to monitor the examination].) za enn sa 17 There is no reason why Plaintiff needs to be “protected” by his attorney during his 18 examination. Plaintiff is an adult and has not demonstrated any special need to be protected by 19 his counsel. Dr. Strassberg is a well credentialed and experienced licensed psychiatrist who is 20 not going to be conducting any harmful or physical tests of Plaintiff and the entire examination 21 can be audiotaped. (Strassberg Decl. {] 2-6.) 22 2. Dr. Strassberg Should Be Permitted to Ask About Prior History and Plaintiff's Termination 23 There is no legal authority or even sound rationale supporting Plaintiffs argument that 24 the examination should be limited “to emotional distress symptoms after termination and current 25 conditions” and that Dr. Strassberg should not be permitted to explore Plaintiffs prior history 26 and termination. To the contrary, the exploration of past experiences is crucial to a true and 27 correct determination of medical causation — specifically, whether or not a subject’s claimed 28 -8- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL, PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION emotional distress or condition was caused by the conduct forming the basis of the lawsuit or by some alternate source or sources. (See Vinson, supra, 43 Cal.3d at 842 [permitting exploration of preexisting or alternative sources for distress as part of exam]; Strassberg Decl. ¥ 5.) Plaintiffs medical history must be examined in order to reveal not only the possible existence of an underlying, biological psychiatric disorder, episodes of which have manifested themselves on prior occasions, but also such indicia of personality disorders, substance abuse, physical complaints that have psychosomatic origin, and referrals for psychiatric treatment. (Strassberg Decl. § 5.) While Dr. Strassberg has no desire to pry unnecessarily into Plaintiff's personal life, a valid psychiatric examination must include a review of the subject’s 10 medical and mental health history. (/d.) Among the issues a forensic examiner is called upon to 11 testify about are the factors which have affected the psychological condition of the subject. To 7S 12 do so, he must determine, for example, whether Plaintiff suffered from prior traumas that may gS gan 495 13 bear on his current mental state. (/d.) As such, a meaningful examination necessary to establish 32 BES gat 20 14 causation requires the exploration of Plaintiff's prior history and his termination from Stanford, 23 pe BPs 15 which he contends was a significant trigger for him. (Jd.) This is particularly important here aa os Se mame 16 eco se A a Bw ga 17 eee (Exhibit 3 to 18 Fitzsimmons Decl.) 19 IV. CONCLUSION 20 In accordance with the foregoing facts, Defendant respectfully requests that this Court 21 order Plaintiff to submit to an independent mental examination or, in the alternative, preclude 22 Plaintiff from making any claim for emotional distress damages. 23 Dated: September 28, 2018 GORDON REES SCULLY MANSUKHANI, LLP 24 B / lL 25 Marcie Isom Fitzsimmons Amber A. Eklof 26 Attomeys for Defendant TRUSTEES OF THE LELAND STANFORD 27 JUNIOR UNIVERSITY, erroneously sued as THE LELAND STANFORD JUNIOR UNIVERSITY 28 -9- MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION