DEFENDANT’S MOTION TO COMPEL NEUROPSYCHOLOGICAL EXAMINATION OF PLAINTIFF ROBERT M. KEARNS
August 12, 2026 Law and Motion, Complex Law and Motion, and UD Law and Motion Calendars Judge Nicole S. Healy Department 28 ________________________________________________________________________ 2:00 PM LINE 4 24-CIV-03850 ROBERT M. KEARNS VS. ROBERT LAWRENCE ROSENBERG, ET AL
ROBERT M. KEARNS CARTER M. ZINN ROBERT LAWRENCE ROSENBERG
DEFENDANT’S MOTION TO COMPEL NEUROPSYCHOLOGICAL EXAMINATION OF PLAINTIFF ROBERT M. KEARNS
TENTATIVE RULING:
Defendant Estate of Robert Lawrence Rosenberg (deceased)’s unopposed motion for an order compelling plaintiff Robert M. Kearns to attend and complete a neuropsychological examination with Dr. William McMullen, a clinical neuropsychologist, and to permit the exchange of raw data and audio recording of the examination only between defendant’s expert and a neuropsychologist or other similar expert retained by plaintiff, and not to plaintiff’s counsel, is GRANTED.
Defendant’s request for judicial notice of seven exhibits is GRANTED. (Evid. Code §§ 452, subd. (c); 453.)
A.
Background
This case arises from an injury accident between plaintiff, a cyclist, and defendant who was driving a motor vehicle. The complaint alleges complex injuries including orthopedic injuries and a brain injury, allegedly involving cognitive and behavioral impairments. Plaintiff also alleges ongoing orthopedic, neurological, and psychological complaints and the need for future treatment regarding these complaints.
Plaintiff has agreed to attend a defense neuropsychological exam, however a dispute remains as to the parameters of the exam, giving rise to the instant motion. Pursuant to Code of Civil Procedure, section 2032.320, subdivision (a), defendant asserts good cause exists for plaintiff to submit to the neuropsychological exam but seeks to protect the integrity of test materials, audio files, and disseminate raw data and audio recording of the testing part of the examination only to an expert retained by plaintiff, and not to plaintiff’s counsel.
B.
Legal Standard
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A defendant generally may obtain a mental examination of a plaintiff if the plaintiff has placed his or her mental condition in controversy. (Code Civ. Proc. § 2032.020, subd. (a).) To do so, a defendant must seek leave of court by motion pursuant to Code of Civil Procedure section 2032.310, subdivisions (a) & (b), as defendant has done here.
August 12, 2026 Law and Motion, Complex Law and Motion, and UD Law and Motion Calendars Judge Nicole S. Healy Department 28 ________________________________________________________________________ C.
Discussion
It is undisputed that plaintiff has placed his cognitive functions and abilities at issue and that defendant therefore is entitled to ask plaintiff to submit to an appropriate medical examination. (Code Civ. Proc. § 2032.020 subd. (a).) Under Code of Civil Procedure, section 2032.530, subdivision (a), both the examiner and examinee have the right to an audio recording of the testing part of the examination. The primary issue before the court is whether the test materials and test data will be released to plaintiff’s counsel or only to an expert retained by plaintiff who may then review the data with plaintiff’s counsel.
As noted above, this motion is unopposed. Defendant’s position is that the disclosure of the requested documents is, at the least, oppressive and burdensome on Dr. McMullen as a licensed professional with a longstanding ethical duty to maintain test materials in confidence to preserve the validity of the results of such tests. Defendant also argues that releasing test procedures to non-psychologists can threaten test security.
Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, the leading authority on this question, recognizes that trial courts have discretion to grant such motions. Here, plaintiff has not filed an opposition nor proposed a protective order. There is no reason to believe that issuing an order directing that the data should be provided only to plaintiff’s expert, once that person is retained, and not to counsel, will negatively affect plaintiff’s trial preparation. Accordingly, the court finds there is good cause to grant the motion because plaintiff has placed his current and future cognitive functions and abilities at issue.
Further, the parameters placed on sharing of the data acknowledge the sensitivity of the materials and audio recording, while giving plaintiff appropriate access to the information. Moreover, this order does not preclude plaintiff from requesting a written summary of the results of Dr. McMullen’s examination of plaintiff, and any opinions he formed as a result of that examination.
If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendants’ counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.