Insurance Company of the West, a California Corporation v. Blakeslee

(TENTATIVE ISSUED BY HON. DANA B. SIMONDS)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

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Plaintiffs Casilda Vargas Flaherty and Christopher Flaherty (“Plaintiffs”) move for an order authorizing service of summons and the First Amended Complaint on defendant Peter Guy Kerston (“Kerston”) by alternative means. Subsequent to the filing of this motion, Kerston filed an answer. Accordingly, the motion is DENIED as MOOT.

8. SCV-273553, Insurance Company of the West, a California Corporation v. Blakeslee

(TENTATIVE ISSUED BY HON. OSCAR A. PARDO)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

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IF THERE ARE ANY REQUESTS TO APPEAR, THEY WILL BE HEARD ON FRIDAY, JULY 24, AT 9:00 A.M. IN DEPT.

19.

I.

Introduction

Defendant Christopher Terrell Blakeslee (“Defendant”) moves for an order granting leave to conduct an independent medical examination (“IME”) of Plaintiff Ephraim Giron Goltiao (“Plaintiff”) compelling Plaintiff to appear for and to submit to that examination, with the court setting reasonable conditions governing the examination, including conditions regarding testing materials, raw test data, and recording. The motion is GRANTED. The instant motion seeks to have Dr. Howard J. Friedman, Ph.D., ABPP, examine Plaintiff.

Defendant states that Plaintiff agreed to the IME with Dr. Friedman if Dr. Friedman provided Defendant with the raw test data from the examination. II. Motion Plaintiff does not challenge defendant’s showing that good cause exists for the requested examination. Plaintiff states he is willing to submit to the requested neuropsychological examination with Dr. Friedman provided Defendant agree: (1) Dr. Friedman shall provide all raw test data and findings directly to Plaintiff’s counsel, with the raw test data subject to a protective order and with instructions to destroy all of the data at the conclusion of this matter; and (2) that Plaintiff be permitted to video and/or audio record the entire examination.

In his supplemental declaration, Dr. Friedman states he remains willing to provide the raw test data to “plaintiffs retained neuropsychologist, treating psychologist, or other qualified psychological professional in accordance with the applicable professional and ethical standards governing neuropsychological testing materials.” (Friedman supp. decl., ¶9.) With respect to Plaintiff’s request to audio record the examination, Dr. Friedman states he does not object to Plaintiff audio recording the clinical interview portion of the examination. (Friedman supp. decl., ¶7.)

However, he states: “it is not appropriate for plaintiff to audio record the remainder of the examination because doing so would capture the proprietary test questions and comprise the security and integrity of the testing materials. Audio recording of the test 10

administration is equivalent to the release of the raw data and is an even greater violation because it captures the proprietary testing process itself.” (Id., ¶8.) Plaintiff offers no competing declaration from a licensed psychologist or neuropsychologist disputing the professional standards governing the handling of raw testing data, the need to preserve standardized neuropsychological testing, or Dr. Friedman’s explanation of why the raw testing data should be disclosed only through a qualified medial professional. III.

Conclusion

Based upon the foregoing, Defendant’s motion is GRANTED. The parties are directed to meet and confer to determine a date and time for the examination by Dr. Friedman. Plaintiff may audio record the clinical interview portion of the examination. The raw testing materials may be transmitted to Plaintiff’s qualified health professional, consistent with applicable professional and ethical standards governing psychological testing materials; Plaintiff and his counsel may review those materials with that health professional. The court will sign Defendant’s proposed order.

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