Edwards v. Superior Court

549 P.2d 846, 16 Cal. 3d 905, 130 Cal. Rptr. 14, 1976 Cal. LEXIS 267

• Court: California Supreme Court
• Decided: May 20, 1976
• Docket: S.F. 23309
• Status: Published

Opinions

Opinion

RICHARDSON, J.

In this case we decide, among other issues, whether the plaintiff in a personal injury action may insist upon the presence of his counsel at an examination conducted by defendant’s psychiatrist. We conclude that such a psychiatric examination should occur in the presence of the examiner and the examinee alone.

In the present case, petitioner Cathiyn Edwards (plaintiff), through her guardian ad litem, filed a personal injury action in November 1971 against real party in interest Santa Clara Unified School District (defendant) and others for injuries sustained by her while using certain school equipment. Plaintiff alleged that, as a result of defendant’s negligence in failing to provide proper instruction and supervision, she sustained physical and emotional injuries for which she sought general damages of $500,000, together with various special damages.

Defendant, having answered the complaint as amended, pursuant to Code of Civil Procedure section 2032, sought to obtain a four-hour examination conducted by Mervyn Shoor, M.D., a psychiatrist selected by defendant. Plaintiff, however insisted that her attorney attend the examination, objected to the selection of Dr. Shoor as examiner, and also objected to the length of the proposed examination.

Defendant thereupon moved the trial court for an order compelling plaintiff to submit to the examination without the presence of her counsel. In support of its motion defendant submitted a letter from Dr. Shoor which stated that he would be unable to conduct a proper and accurate psychiatric examination in the presence of plaintiff’s counsel, since counsel’s attendance would necessarily distort and impair the clinical picture, precluding an objective examination and evaluation. Defendant also submitted a declaration by its counsel reciting that plaintiff had claimed a substantial amount of damages for emotional injuries; that she had been under the care of various psychiatrists; that she was currently seeing a psychologist, Thomas E. Parker, M.D.; that Dr. Shoor was an independent qualified psychiatrist who, in the past, had been appointed by the court to render opinions on psychiatric matters; and that Dr. Shoor refused to examine plaintiff in the presence of an attorney.

Plaintiff, while not objecting to the psychiatric examination itself, asked the trial court to rule (1) that the examination be conducted in the presence of her counsel, (2) that the examination not be conducted by Dr. Shoor (with whom she assertedly feels uncomfortable and fearful), and (3) that the examination’s length be reduced from the four-hour period sought by defendant. In support of her position plaintiff submitted the declaration of Dr. Parker who stated that plaintiff had expressed extreme anxiety regarding further contact with Dr. Shoor, and that in view of plaintiff’s history of severe depression it might be dangerous to subject her to a psychiatric examination “without the presence of somebody with whom she can identify as a supporting force,” such as her attorney.

The trial court granted defendant’s motion, staying its order temporarily to permit plaintiff, if she so elected, to withdraw her claim of damages for emotional injury. Plaintiff refused to surrender her claim and now seeks mandate to compel the trial court to vacate its order. She contends that the court abused its discretion in three separate respects. As will appear, we conclude that none of plaintiff’s contentions has merit.

1. Presence of Counsel at Psychiatric Examination

Section 2032, subdivision (a), of the Code of Civil Procedure provides in pertinent part that, “In an action in which the mental or physical condition ... of a party,... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental.. . examination by a physician... . The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” It is apparent that the section does not, expressly or impliedly, require the presence of the counsel representing the examinee. Similarly, present California authorities hold that counsel’s presence is not required. '(Whitfield v. Superior Court (1966) 246 Cal.App.2d 81, 86 [54 Cal.Rptr. 505], hg. den.; Durst v. Superior Court (1963) 222 Cal.App.2d 447, 452-453 [35 Cal.Rptr. 143, 7 A.L.R.3d 874], hg. den.; see Munoz v. Superior Court (1972) 26 Cal.App.3d 643, 645 [102 Cal.Rptr. 686].)

Plaintiff relies primarily upon our decision in Sharff v. Superior Court (1955) 44 Cal.2d 508, 510 [282 P.2d 896, 64 A.L.R.2d 494], in which we held that the plaintiff in a personal injury action may not be required to submit to a physical examination by the defendant’s doctor without the presence of her attorney. In Sharjf we reasoned that “Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril. The plaintiff, therefore, should be permitted to have the assistance and protection of an attorney during the examination. [Citation.]” (Id, at p. 510; see also Gonzi v. Superior Court (1959) 51 Cal.2d 586, 589 [335 P.2d 97], requiring the presence of a reporter during a physical examination of the plaintiff by defendant’s doctor to insure accurate reporting of the examination.)

Plaintiff maintains that Sharjf’s rationale is equally applicable to a psychiatric examination. But as we have previously observed, the cases have rejected this contention. Whitfield v. Superior Court, supra, 246 Cal.App.2d 81, expressly held that the trial court did not abuse its discretion in denying the plaintiff’s request that her attorney and a court reporter be present during a psychiatric examination ordered under section 2032. The Whitfield court distinguished Sharjff and Gonzi, supra, on the ground that neither case involved a psychiatric examination which might have been impaired by the presence of third parties during the examination. Whitfield relied upon Durst v. Superior Court, supra, 222 Cal.App.2d 447, which had also similarly distinguished Sharff and Gonzi. Whitfield and Durst emphasized an important distinction. Unlike a physical examination, which consists of little or no analysis of the examinee’s mental processes, a psychiatric examination is almost wholly devoted to a careful probing of the examinee’s psyche for the purpose of forming an accurate picture of his mental condition.

In In re Spencer (1965) 63 Cal.2d 400 [46 Cal.Rptr. 753, 406 P.2d 33], decided subsequent to both Sharff and Gonzi, we held that so long as certain safeguards were imposed, a criminal defendant who voluntarily submits to an examination conducted by a court-appointed psychiatrist has no legal right to the presence of counsel at the examination. While we note the different factual context in which Spencer arose, our rationale in that case in our view is fully dispositive of plaintiff’s contention herein. In Spencer we quoted with approval Judge David Bazelon’s language in Rollerson v. United States (1964) 343 F.2d 269, 274 [119 App.D.C. 400]: “ ‘The basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject.’” (In re Spencer, supra, at p. 411.) In referring to the presence of counsel we summarized the controlling considerations in our own clear and unambiguous language: “. . . we recognize that such presence may largely negate the value of the examination. Surely the presence and participation of counsel would hinder the establishment of the japport that is so necessary in a psychiatric examination.. (Durst v. Superior Court [supra] 222 Cal.App.2d 447, 452-454 . . . .)” (Ibid.)

Our holding in Spencer was set forth in the context of our review of the penalty phase of a trial in which the death penalty had been imposed and affirmed. Logic suggests, a fortiori, that a psychiatric examination of a party in a civil case should ordinarily be conducted without counsel if the examination is to remain an effective and meaningful device for ascertaining the truth.

Plaintiff argues that her counsel’s presence should be required in order to protect her from improper questioning, to assure accurate reporting, and to make the examination a more comfortable experience for her. We consider these contentions and will conclude that, neither singly nor together, are they of sufficient validity to overcome defendant’s statutory right to an effective psychiatric examination conducted under circumstances best calculated to assure that the trier may acquire a fair and objective evaluation of the impact, if any, of the accident in question on plaintiff’s mental and emotional condition.

We are unable to accept the thesis that counsel’s presence is necessary to protect the examinee from “improper” questions. The analyst in a psychiatric examination seeks by careful direction of areas of inquiry to probe, possibly very deeply, into the psyche, measuring stress, seeking origins, tracing aberrations, and attempting to form a professional judgment or interpretation of the examinee’s mental condition. Given such techniques and purposes we do not think that an attorney, no matter how well intentioned, can fairly and objectively monitor such an examination. Psychiatry is a discipline requiring highly specialized skills. Further, while properly objecting to a question on legal grounds, counsel does not necessarily possess the ability to define the psychiatric relevance of elicited answers. Many questions which would be legally objectionable, if posed in a courtroom, might be very relevant in the formulation of a sound psychiatric judgment. Rather than encourage a procedure which would permit counsel to interject his own arguments and objections into the examination, we believe other procedural safeguards adequately protect plaintiff’s legitimate interests.

Plaintiff suggests further that counsel’s presence will give the examinee comfort, assurance and emotional support when facing a hostile examination. Depending on the examinee’s mental condition, every psychiatric examination, including that of the examinee’s own expert, may be viewed by the examinee as hostile. To permit the presence of others at a psychiatric examination for purposes of comfort and support presents difficult questions of limitation. Perhaps a family member or religious advisor or the examinee’s psychiatric counselor would furnish the best “comfort” and “emotional support.” We are convinced that the larger the number of persons attending the examination the lesser the prospect of the necessary rapport stressed by us in Spencer. We do not suggest that trial courts lack discretion to issue protective orders where necessary to safeguard the physical or mental condition of the examinee. However, we are satisfied that to require the addition of other persons in the examining room would be distracting, if not disrupting. As Spencer, Whitfield, and Durst explain, of paramount importance is the concern that the examination be valid and have meaning, free from outside influences which might disrupt it.

Finally, counsel’s presence is not required to assure accuracy in reporting the examination. As pointed out in Whitfield v. Superior Court, supra, 246 Cal.App.2d 81, 85-86, a trial court might reasonably conclude that if the examinee knows his statements are being recorded verbatim, he will react defensively, thereby preventing the free, open and objective communication essential to an effective psychiatric examination. Conflicts regarding the questions and answers elicited at the examination can be resolved through existing procedural methods.

We emphasize the availability of numerous alternative procedural devices for plaintiff’s protection. Examinee’s counsel, by way of pretrial discovery, has complete access to all of the notes and records of the examiner. The examiner may be deposed. Counsel may exhaustively test and challenge the examiner’s conclusions, carefully exploring the reasons-therefor, including the specific questions and answers exchanged between examiner and examinee. During the deposition counsel may have the benefit of his own psychiatric expert at his side to prompt him into every conceivable area of legitimate inquiry. At trial, counsel may by appropriate voir dire and motions exclude or limit statements made by his client. He may introduce contrary expert evidence. By cross-examination he may subject the examiner to a searching and probing inquiry, again with the help of counsel’s professional advis.or. Plaintiff neither lacks, nor should lack, procedural safeguards. However, at the sensitive point of the psychiatric examination itself, given the need for a special and private rapport between examiner and examinee, we think the purposes of the examination are best served by its conduct on a one-to-one basis.

Our conclusions are fortified by the element of fairness inhering in the procedural posture of the case. Plaintiff’s own psychiatrist has had months, if not years, of unlimited access to plaintiff for psychoanalysis and treatment. This professional relationship has been, as it should be, unfettered. Fundamental fairness requires that a similar unrestricted professional exposure for a brief period be allowed the other side. This will assist the trier in obtaining a balanced and even-handed professional evaluation of the relationship of trauma to plaintiff’s mental condition.

2. Examination by Dr. Shoor

Plaintiff also has contended that the trial court abused its discretion in requiring plaintiff to be examined by Dr. Shoor in spite of her expressed fear and dislike of him. We have impliedly recognized that ordinarily the examining party may choose the person to conduct a physical examination taken under Code of Civil Procedure section 2032. (See Gonzi v. Superior Court, supra, 51 Cal.2d 586, 589-590; Sharff v. Superior Court, supra, 44 Cal.2d 508, 510; see also Annot., Personal Injury-Examination-Doctor, 33 A.L.R.3d § 4[c], pp. 1012, 1020-1023.) Of course, the trial court has broad discretion to determine whether good cause exists for refusing to accept the examining party’s choice of a physician. (See Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378-380 [15 Cal.Rptr. 90, 364 P.2d 266]; Sanden v. Mayo Clinic (8th Cir. 1974) 495 F.2d 221, 225; 8 Wright & Miller, Federal Practice and Procedure (1970) Physical and Mental Examination, § 2234, pp. 674-675.) The authorities suggest that a party’s unsupported objections to a particular doctor conducting the examination should be given little weight. (Louisell & Wally, Modern Cal. Discovery (2d ed. 1972) Physical and Mental Examinations, § 7.09, p. 493; Gale v. National Transp. Co. (S.D.N.Y. 1946) 7 F.R.D. 237, 238.)

As noted above, plaintiff has not attempted to disprove defendant’s assertion that Dr. Shoor is an independent qualified psychiatrist who has conducted numerous psychiatric examinations by court appointment. The rather general objections of plaintiff and her own psychologist regarding plaintiff’s negative reaction to Dr. Shoor were insufficient to disqualify Dr. Shoor as a matter of law, and we cannot say the trial court abused its discretion in denying this aspect of plaintiff’s request.

3. Length of Examination

Plaintiff has objected to the length of the proposed examination and asks us to select a period less than the four-hour confrontation sought by defendant. Yet section 2032 contemplates that the trial court shall specify in its order the conditions under which the examination is to be conducted, and the fixing of these conditions is a matter entrusted to the sound discretion of the trial court. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 378-380, 383; Sanden v. Mayo Clinic, supra, 495 F.2d 221, 225; Louisell & Wally, Modem Cal. Discovery, supra, Physical and Mental Examinations, § 7.06, p. 483; 3 DeMeo, Cal. Deposition and Discovery Practice (1971) Physical, Mental, and Blood Examination of Persons, ¶ 11.01(8), p. 11.01-14, etseq.)

In the present case, Dr. Shoor requested a series of four fifty-minute interviews; at plaintiff’s urging, defendant agreed to a single examination. Plaintiff has not shown that an effective examination could be performed in less than four hours, and we believe the trial court had discretion to require her to undergo an examination of this length.

The alternative writ heretofore issued is discharged and the peremptoiy writ is denied.

Wright, C. J., McComb, J., Tobriner, J., and Clark, J., concurred.