DEBACK vs SWIMME, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

24CV013022: DEBACK vs SWIMME, et al. 07/30/2026 Hearing on Motion to Compel Independent Medical Examination in Department 16D

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendant Jack Swimme’s and Adams Electrical Corporation’s (“Defendants”) motion for order compelling Plaintiff Ashley Deback (“Plaintiff”) to appear for an Independent Medical Examination is ruled upon as follows.

In this personal injury action, Plaintiff alleges that she was injured in an auto accident that occurred on June 11, 2023. In her complaint, Plaintiff alleges that she and Defendant Jack Swimme were driving northbound on the SR 99 at approximately 1:00 pm. (Complaint at ¶ 8.) Ismael Chavez was also driving northbound on SR 99 and was in between Plaintiff and Defendant Jack Swimme’s vehicles. (Id., at ¶ 9.). Plaintiff further contends that, due to traffic ahead, she and Ismael Chavez slowed down their vehicles when Defendants’ vehicle came into contact with the rear of Ismael Chavez’s vehicle which was thus pushed and came into contact with the rear of Plaintiff’s vehicle. (Ibid.) Plaintiff alleges that as a result of the accident, she was seriously injured. (Ibid.)

Plaintiff contends that Defendant Adams Electrical Corporation entrusted the subject commercial vehicle to Defendant Jack Swimme and that Defendant Swimme was driving the subject vehicle for commercial purposes at the time of the subject accident. (Id., at ¶ 19.)

Plaintiff further contends that, as a direct and proximate result of Defendants, Plaintiff was “injured in [her] health, strength, and activity, sustaining injuries to [her] body, and shock and injury to [her] nervous system and person, all of which have caused, and continue to cause [her] great physical, mental, and nervous pain and suffering. [Plaintiff is] further informed and believe[s], and thereupon allege[s], that said injuries will result in disability to [her] person[], and general damages in an amount which will be stated according to proof, pursuant to California Code of Civil Procedure § 425.10.” (Id., at ¶ 26.)

Plaintiff’s complaint alleges a cause of action for negligence against Defendants and a second cause of action for negligent entrustment against Defendant Adams Electrical Corporation.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013022: DEBACK vs SWIMME, et al. 07/30/2026 Hearing on Motion to Compel Independent Medical Examination in Department 16D

Trial for this matter is currently set for September 28, 2026.

Defendants move pursuant to Code of Civil procedure § 2032.220 and Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818 (“Randy’s Trucking”) for an order compelling Plaintiff to submit to a neuropsychological examination by Dr. Marc A. Norman, Ph.D., ABPP/CN. (Amended Notice of Motion at 1:22-26.) Defendants explain in their moving points and authorities that the parties have met and conferred over Defendants’ request for multiple independent medical examinations (“IME”) and that the parties have agreed that Plaintiff will undergo IMEs with two distinct experts retained by Defendants, including an IME with Dr.

Norman which is at issue here. (Moving MPA at 4:11-19.) Defendants further attach the Second Amended Notice of Independent Medical Examination (Neuropsychologist), noticing the IME of Plaintiff with Dr. Norman for June 1, 2026 (“Notice of IME”) as Exhibit A to the Declaration of Marissa L. Vandersluys in support of this motion. The Notice of IME identifies the tests to be performed at the noticed IME as follows:

Beck Anxiety Inventory (BAI), Beck Depression Inventory-2nd Edition (BDI-II), Boston Naming Test-2nd Edition (BNT-2), Brief Visuospatial Memory Test– Revised (BVMT-R), California Verbal Learning Test 3–CVLT-3, Controlled Oral Word Association Test (Letter and Category Fluency), Digit Vigilance Test, Finger Tapping Test, Grooved Pegboard Test, Grip Strength Test, Rey Complex Figure Test (RCFT), Stroop Color-Word Test, Test of Memory Malingering (TOMM), Trail Making Test, Parts A and B, Wechsler Adult Intelligence Scale – 4th Edition (WAIS-IV),Test of Premorbid Functioning, Wide Range Achievement Test – Fourth Edition (WRAT-5), Wisconsin Card Sorting Test—64 Card Version (WCST), Minnesota Multiphasic Personality Inventory-3rd edition (MMPI-3), Judgment of Line Orientation, Sensory Perceptual Exam (SPE), Frontal System Behavior Scale, Behavior Rating Inventory of Executive Function, Consonant Trigrams, Visual Form Discrimination, Facial Recognition, Category Test, Paced Auditory Serial Addition Test, Speech Sounds Perception Test, Seashore Rhythm Test, Hooper Visual Organization Test, Test of Variable Attention, Token Test, Boston Diagnostic Aphasia Examination, Delis Kaplan Executive Functioning Scale, and the Medical Symptom Validity Test.

(Vandersluys Decl., at Exhibit A.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013022: DEBACK vs SWIMME, et al. 07/30/2026 Hearing on Motion to Compel Independent Medical Examination in Department 16D

Defendants also explain that “[w]hile the parties agree that the IME can take place, they disagree as to the protocols and parameters of the IME. Specifically, Defendants are of the position that a standard protective order is insufficient to protect the exchange of the data materials and that there should not be any audio recording of the actual test administration. Plaintiff takes the position that a standard protective order is sufficient and that she should be able to audio record the entire examination including the administration of any test.” (Moving MPA at 4:3-8.) Accordingly, Defendants requests this Court order:

(1) Plaintiff to appear; (2) that the exchange of testing data be directly between Dr. Norman and a licensed neuropsychological expert of Plaintiff’s choice; and (3) any audio recording of the IME be limited to the clinical interview and not encompass any recording of the actual test administration phase (which will be noted by Dr. Norman as to when it begins and ends).

(Notice of Motion at 2:2-6.)

Plaintiff opposes arguing first that Plaintiff has never refused to appear for Dr. Norman’s neuropsychological examination and thus this “is not a motion to compel anything.” (Opposition at 3:3-8.) Rather, Plaintiff argues, what Defendant “actually want is an order narrowing two rights the Legislature has already given Plaintiff: the right under Code of Civil Procedure section 2032.530, subdivision (a) to audio record 'a mental examination,' and the right to have the materials generated by her own examination available to her own retained counsel rather than filtered exclusively through a psychologist intermediary before her attorneys ever see them.” (Id., at 3:9-14.) Plaintiff contends however, that the Court of Appeal “has already decided this exact dispute” in Randy’s Trucking, supra, 91 Cal.App.5th 818, against the position Defendants ask this Court to take. (Id., at 3:17-27.)

Legal Standard

Civil discovery by physical and mental examination is governed by Code of Civil Procedure sections 2032.010 through 2032.650. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249 258-59.) “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Id., citing Code Civ. Proc., §§ 2032.020, subd. (a), 2032.310.)

Code of Civil Procedure section 2032.220, subdivision (a) allows:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013022: DEBACK vs SWIMME, et al. 07/30/2026 Hearing on Motion to Compel Independent Medical Examination in Department 16D

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

Pursuant to Code of Civil Procedure section 2032.310, subdivision (a), “[i]f any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” The motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.” (Code Civ. Proc., § 2032.310, subd. (b).) The court shall grant a motion for a mental examination under section 2032.310 “only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.310, subd. (b).)

“An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc., § 2032.320, subd. (d).)

Discussion

As a threshold matter, California Rules of Court, rule 3.1345(a)(6) requires a separate statement for a “medical examination over objection.” However, the Court concludes that Defendants have sufficiently set forth the factual nature of the dispute and that Plaintiffs were able to provide a substantive opposition. The Court will exercise its discretion to consider the merits of the motion notwithstanding Defendant’s failure to include a separate statement as required by Rule 3.1345(a)(6).

With respect to the merits, it appears the parties have sufficiently met and conferred in connection with the instant motion. (Vandersluys Decl., Exhibits C, D, E, F.) The Court further notes that Plaintiff does not object to submitting to an examination by Dr. Norman, but merely argues that the raw data and audio should be provided to their counsel. Both parties extensively discuss the holding in Randy’s Trucking, supra, 91 Cal.App.5th 818.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013022: DEBACK vs SWIMME, et al. 07/30/2026 Hearing on Motion to Compel Independent Medical Examination in Department 16D

Case law has held that there is no statutory authority precluding a court from ordering disclosure of written test questions used in connection with an IME. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.) In Randy’s Trucking, the trial court granted the defendants’ motion to compel the plaintiff to undergo a mental examination, but denied its request to limit transmission of the raw test data, test materials, copyrighted publications, or documents containing proprietary information to anyone other than a licensed psychologist or neuropsychologist. Instead, it ordered defendants’ neuropsychologist to transfer the information to plaintiff’s attorney, subject to a protective order. (Randy’s Trucking, Inc., supra, 91 Cal.App.5th at p. 824.) The protective order provided:

“Plaintiff’s counsel, defense counsel and all experts, consultants and employees of the respective firms shall maintain the security of all raw data, test materials and other medically private information obtained during the examination. However, such raw data, test materials and other medically private information may be disclosed to plaintiff’s counsel, defense counsel and all experts, consultants and employees of the respective firms for use in this case. Such materials and data may also be shown to the trier of fact at the time of trial, or such other time as may be necessary for the adjudication of the above-captioned matter. These materials may be used for no other purpose, may not be disseminated to any other party and the parties shall take all reasonable steps to maintain the confidentiality of the above-identified materials.”

(Id. at p. 828.) The protective order also required the parties to “destroy the aboveidentified materials at the cessation of this case, in accordance with the provisions of the California Rules of Professional Conduct.” (Ibid.)

The defendants in Randy’s Trucking moved for reconsideration on the ground that their retained expert had recused herself from the case, and they had spoken with two experts who refused to do the exam under the court’s existing order. (Id. at pp. 828-829.) The trial court denied the motion for reconsideration. Defendants filed a petition for writ of mandate. The Court of Appeal denied defendants’ petition for writ of mandate, finding that the trial court did not abuse its discretion. (Id. at p. 825.)

In its analysis, the court noted that “[t]here is no statutory authority, . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination” and “given the trial court’s broad discretion in discovery matters, it retains the discretion to order the production of such materials.” (Id. at pp. 834, 837 [citing Carpenter, supra, 141 Cal.App.4th at 249].) It also found that the defendants had not demonstrated that the need to protect the doctor from violating her ethical and professional obligations outweighed plaintiffs’ need for the

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materials. (Id. at p. 837.) The doctor explained the problems with allowing a third-party observer (“TPO”) and the recording of the examination, including:

(1) compromising the validity of future neuropsychological test results; (2) potential misuse and misinterpretation of tests by untrained TPOs “who have no compelling interest in protection of copyrighted test content”; (3) potential conflicts with the APA Ethical Standards and “several key principles in the Specialty Guidelines for Forensic Psychology of the American Psychological Association (2013)”; (4) the increased likelihood test content and instructions would be disseminated which “raises the risk that motivated parties will coach and prepare examinees for testing in advance, specifically to influence test results”; and (5) “ ‘[l]awyers involved in brain injury litigation routinely coach their clients how to approach neuropsychological testing to their advantage.’ “

(Id.)

The court found this insufficient because:

[The doctor] did not explain why a protective order would not ameliorate those dangers. She also did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs’ attorney subject to a protective order. Dr. Victor identified numerous standards in the APA Ethical Standards by number which she claimed could be violated if TPO were allowed, but Dr. Victor did not explain the potential violations and the APA Ethical Standards were not submitted to the trial court.

(Id. at 837-838.)

On the other hand, the court explained that “[w]ithout the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion.” (Id. at p. 838.) It added that “while defendants assert plaintiffs’ attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.” (Ibid.)

The court also agreed with plaintiffs that it was insufficient to submit the raw data and audio recordings to plaintiffs’ retained expert because “[plaintiffs] should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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examination, ‘the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.’” (Ibid.)

Here, the Court is not persuaded that a protective order is insufficient to guarantee test security and preserve Dr. Norman’s ethical obligations and concerns. The court in Carpenter, supra, 141 Cal.App.4th at 274, determined that a protective order was adequate to protect against copyright concerns in relation to providing copies of neuropsychological tests, and the Court concludes the same reasoning applies here. Defendants also suggest that attorneys that have knowledge of the tests will coach their next clients for evaluation.

The Court, however, does not presume that its orders, including protective orders, will be violated nor is the Court persuaded by Defendants’ speculation, even if such incidents involving different attorneys and different clients have previously been documented. In fact, the most sensitive materials imaginable in all varieties of ligation in all courts throughout this state are secured by court-imposed protective orders. There is no exception to be made here.

Further, while Dr. Norman has identified certain standards pursuant to the California Board of Psychology, and the Standards for Educational and Psychological Testing, Dr. Norman failed to specifically identify how his professional or ethical obligations will be violated if he is ordered to release the raw data/testing materials to counsel subject to a protective order. The Court in Randy’s Trucking, upon reviewing APA standard 9.11, which states, “Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code[,]” noted that Section 9.11 “does not require a psychologist to defy court order for the purposes of guarding test materials.” (Randy’s Trucking, supra, 91 Cal.App.5th at 839, fn. 11.)

Similarly, nothing citied by Dr. Norman indicates he would be in violation of his obligations by producing the testing materials/raw data to Plaintiff’s counsel under a protective order.

The Court has weighed Defendants’ concerns against Plaintiff’s need to prepare for and effectively conduct expert cross-examination. The Court concludes that Plaintiff has a legitimate need for the raw data and the grounds for Defendants’ concerns about maintaining test security can be satisfied with a protective order. The Court exercises its discretion and orders release of any testing materials and raw data to Plaintiff’s attorney as well as audio recording of the exam, subject to a protective order akin to that approved in Randy’s Trucking.

Disposition

Accordingly, Defendants’ motion is GRANTED as set forth above.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013022: DEBACK vs SWIMME, et al. 07/30/2026 Hearing on Motion to Compel Independent Medical Examination in Department 16D

The partes are ordered to meet and confer on a protective order consistent with Randy’s Trucking prior to August 7, 2026. Although the Court cannot direct the parties to stipulate to a protective order it would appear that a protective order regarding the raw data and audio of the IME would be in the best interests of the parties. Dr. Norman shall provide the raw data from the testing to Plaintiff's counsel within a reasonable time after the examination. However, the raw data and testing material shall be subject to the protective order.

The parties are ordered to meet and confer on a mutually agreeable date for the neuropsychological examination to take place, but they shall take place no later than September 1, 2026.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)