Stay Informed

In the recent case of Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal. App. 5th 818, the California Court of Appeal held that a neuro/psych expert retained by a defendant must produce raw testing data directly to plaintiff’s counsel if such data is requested. The ruling effectively upends the longstanding practice of transmitting raw testing data, testing materials, and audio recordings of exams directly to a licensed expert retained by the plaintiff, as opposed to the plaintiff’s counsel, because such information is subject to strict regulatory and copyright regulations. As noted below, critics of the ruling believe that it effectively prevents the defense from obtaining the mental examinations they are entitled to as a matter of law.

Specifically, in Randy’s Trucking, a plaintiff who operated a school bus alleged that she was rear-ended by a truck driven by a Randy’s Trucking employee in the course and scope of his employment. Plaintiff further alleged that she sustained a brain injury and related cognitive deficits. The defense sought a mental examination by a neuro/psych expert pursuant to Code of Civil Procedure section 2032.310. However, the parties could not agree to the exam parameters, as plaintiff’s counsel wished to receive the test information directly from the defendants’ expert. The impasse resulted in a motion to compel the exam without the conditions suggested by plaintiff’s counsel due to the concerns of the defendants’ neuro/psych expert that the test information was subject to strict regulatory protection and is largely copyright-protected, such that the information should only be shared with a licensed neuro/psych expert. The trial court ruled in favor of the plaintiff.

On appeal, the court affirmed the trial court’s decision, reasoning that Code of Civil Procedure section 2032.320 affords a trial court broad discretion to require an opposing party to provide an examined party with an audio tape of the examination as well as the raw test data and questions, subject to a protective order regarding the security of the test. In so doing, the Court of Appeal also noted that Code of Civil Procedure section 2032.610 requires an examining party to produce, at the request of the examined party, a written report of the exam and copies of reports from any prior exams of the same condition conducted by the same or any other examiner. The court did not view this statute as prohibiting broader disclosures, including raw data, and other testing information. As a result, the defendants’ neuro/psych expert recused herself from the case on the basis that providing the information as ordered would compromise the security of the tests and her professional and ethical duties as a practitioner.

The Randy’s Trucking decision highlights a significant gap in legislation regarding the disclosure of sensitive neuro/psych exam materials. To that end, critics of the decision believe that the order to produce materials in the absence of specific legislation conflicts with existing precedent, which provides that “…courts lack the power to order discovery beyond that permitted by the statutes.” (Haniff v. Superior Court (2017) 9 Cal.App.5th 191, 199.) Critics also believe that the decision creates significant hurdles for the defense community and neuro/psych experts due to the potential ethical ramifications and copyright liability exposure related to the disclosure of testing materials to non-experts. These hurdles, in turn, will affect the manner in which a brain injury case is litigated.

For more information on this issue and how it can affect the defense of pending and future trials, please contact Michelle Watkins.