Silvia Contreras et al vs Costco Wholesale Corporation et al

Case Number

23CV02771

Case Type

Hearing Date / Time

Mon, 03/24/2025 - 10:00

Nature of Proceedings

Motion: Compel Production of Defense Expert's Raw Data

Tentative Ruling

Silvia Contreras, et al. v. Costco Wholesale                      

Case No. 23CV02771

           

Hearing Date: March 24, 2025                                               

HEARING:              Plaintiffs’ Motion To Compel The Production Of Defense Expert Dr. Delia M. Silva’s Raw Data Related To Neuropsychological Testing Of Plaintiff Silvia Contreras Or, Alternatively, Striking Dr. Silva As Defense Expert

ATTORNEYS:        For Plaintiffs Silvia Contreras, Mariano Contreras, and Adalberto Contreras: Harout Greg Keosian, Natalie H. Suri, Keosian Law LLP

                                    For Defendant Costco Wholesale Corporation: Sean R. Burnett, Jessica Farley, Snyder Burnett Egerer, LLP

                                   

TENTATIVE RULING:

(1) The motion of plaintiffs to compel the production of defense expert Dr. Delia M. Silva’s raw data related to the neuropsychological testing of plaintiff Silvia Contreras is granted in part subject to the terms of the stipulated protective order filed in this action and approved by the Court on March 18, 2025. Except as herein granted, the motion is otherwise denied.

(2) Counsel for defendant Costco Wholesale Corporation, Jessica Farley, shall appear at the hearing and explain why counsel did not disclose Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, in defendant’s opposition to plaintiffs’ motion.

Background:

On June 28, 2023, plaintiffs Silvia Contreras (Silvia), Mariano Contreras (Mariano), and Adalberto Contreras (Adalberto) (collectively, plaintiffs) filed a complaint against Costco Wholesale Corporation (Costco), alleging four causes of action: (1) negligence - premises liability; (2) negligent hiring; (3) loss of consortium; and (4) negligent infliction of emotional distress. (Note: Due to common familial surnames and to avoid confusion, the Court will refer to plaintiffs by their first names. No disrespect is intended.)

The claims alleged in the complaint arise from an incident which occurred on October 3, 2022, at a Costco location in Goleta, California, when Silvia was struck by shopping carts pushed by a Costco employee, causing Silvia to fall and sustain a head injury, among other things. (Compl., ¶ 9.)

Costco answered the complaint on August 4, 2023, generally denying its allegations and asserting twelve affirmative defenses.

On January 14, 2025, plaintiffs filed a motion for an order (the motion to compel) compelling the production of materials, including raw data and test results (collectively, the Raw Data), related to or generated during a neuropsychological examination (the examination) of Silvia performed by Costco’s retained neuropsychology expert, Dr. Delia M. Silva (Dr. Silva) pursuant to a “Stipulation For Defense Mental Examination” (the Stipulation) executed by the parties. (See Jan. 14, 2025, Declaration of Natali H. Suri, Exh. A.)

The motion to compel was opposed by Costco.

On January 21, 2025, the Court granted plaintiffs’ ex parte application for an order shortening the time to hear the motion to compel, and advancing the hearing to February 24, 2025.

On February 24, 2025, the Court entered a minute order (the Minute Order) adopting the Court’s tentative ruling on the motion to compel as set forth in pertinent part below:

“(1) For all reasons discussed herein, the motion of plaintiffs to compel the production of defense expert Dr. Delia M. Silva’s raw data related to the neuropsychological testing of plaintiff Silvia Contreras is continued to March 24, 2025. The parties shall meet and confer in good faith regarding the terms of an appropriate protective order consistent with the discussion in Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, and this ruling, and shall, on or before March 12, 2025, submit one or more proposed protective orders.

(2) In addition, the parties shall, on or before March 12, 2025, submit in accordance with this ruling joint or individual status reports setting forth their efforts to meet and confer regarding the terms of an appropriate protective order as required herein, and what, if any, issues remain to be determined.

(3) For all reasons discussed herein, counsel for defendant Costco Wholesale Corporation, Jessica Farley, shall appear at the hearing on the present motion and explain why counsel did not disclose Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, in defendant’s opposition to plaintiffs’ motion.

… [¶]

The parties here do not dispute that Silvia has placed her mental condition in controversy, or that Costco is authorized to obtain discovery of Silvia’s condition by means of the examination conducted by Dr. Silva. (See Code Civ. Proc., § 2032.020, subd. (a); Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887.) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise stated.) Though the Stipulation effectively eliminated the need for Costco to obtain leave of court to conduct the examination pursuant to Code of Civil Procedure section 2032.310, the parties also do not appear to dispute, for present purposes, that Dr. Silva conducted the examination of Silvia in compliance with sections 2032.020 or 2032.220, or that the report otherwise complies with section 2032.610. Based on the respective positions advanced by the parties, it is the Court’s understanding that the present dispute relates only to whether or not Dr. Silva may be compelled to produce the Raw Data at issue directly to Silvia’s counsel.

Silvia contends that if the Raw Data is not produced to her counsel, her counsel will be unable to conduct a proper or meaningful cross-examination of Dr. Silva, or to determine if the Raw Data is sufficient to support Dr. Silva’s opinions. Silvia further asserts that she is willing to enter into a protective order to safeguard the Raw Data. For these reasons, Silvia argues, the Court should compel the production of the Raw Data to her counsel.

Costco contends that that the Raw Data is confidential, that Dr. Silva is prohibited from releasing the Raw Data to anyone other than a licensed psychologist, and that a protective order would not resolve the ethical and legal concerns asserted by Dr. Silva. Costco further contends that Silvia’s counsel does not have the requisite expertise or qualifications to interpret the Raw Data, and that Silva can retain an expert to interpret the Raw Data and convey necessary information to Silvia’s counsel. For these reasons, Costco argues, there exists sufficient good cause to limit the disclosure of the Raw Data to any expert that may be retained by Silvia.

The parties do not address in their respective papers an identical if not substantively similar dispute addressed by the Fifth District Court of Appeal in Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, 834 (Randy’s Trucking). Randy’s Trucking involved a suit filed by a school bus driver and passenger against the driver of a tractor-trailer and his employer. (Id. at p. 824.) The school bus driver plaintiff claimed that she suffered a traumatic brain injury when the tractor-trailer driven by the defendant employee rear-ended the school bus that plaintiff was driving. (Ibid.) Consequently, defendants sought to compel the plaintiff school bus driver to submit to a mental examination by defendants’ neuropsychologist. (Id. at p. 825.)

Similar to the parties in this action, the parties in Randy’s Trucking could not agree to the “ground rules” for the school bus driver’s mental examination. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 825.) Plaintiffs would not agree to the examination “unless the examining neuropsychologist provided them with all testing materials [and] raw test data”, while defendants maintained that their neuropsychologist “was unwilling to transfer those items to plaintiffs’ counsel, although she would provide them to a similarly situated expert who was subject to the same professional and ethical duties to which she was subject.” (Ibid.) The dispute prompted the filing of a motion by defendants for an order granting leave to conduct the neuropsychological examination of the school bus driver plaintiff “without having to provide raw data and copyrighted examination questions to plaintiffs’ counsel.” (Ibid.)

To support their motion, defendants in Randy’s Trucking submitted a declaration of their neuropsychologist which advanced the same if not a substantively similar position as that advanced by Dr. Silva in this proceeding, as further detailed above. (See Randy’s Trucking, supra, 91 Cal.App.5th at p. 826.) Similar to the arguments advanced by Costco in this action, defendants in Randy’s Trucking argued that the disclosure of raw data and other materials relating to plaintiff’s examination would cause defendants’ neuropsychologist “to violate her ethical and professional duties”, and that “the raw data and examination questions were of no use to plaintiffs’ counsel ‘other than to utilize it improperly to corrupt the process by preparing future clients using the copyrighted questions.’ ” (Id. at pp. 825-826.) Defendants, like Costco in this proceeding, requested that the court instead “order the transfer of data to plaintiffs’ retained neuropsychologist, ‘whoever that is ….’ ” (Id. at p. 826.)

In their opposition to defendants’ motion, plaintiffs in Randy’s Trucking “asserted they only were seeking to have the raw data from the examination provided to their counsel in addition to plaintiffs’ expert”, and offered to sign a protective order “making the data available for use only in this case and only for review by counsel’s team and experts, with the data to be destroyed at the conclusion of the case ….” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 826.) To support their position plaintiffs in Randy’s Trucking, as Silvia has in this proceeding, relied on Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, in which the court concluded, among other things, that copyright law did not preclude plaintiff in that case from obtaining a copy of written test materials. (Ibid.; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 253.)

After a hearing, the trial court entered a written order granting the defendants’ motion, and requiring, among other things, that “’all raw data’ be provided to [plaintiffs’] counsel … subject to a protective order.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 828.) Defendants sought review of the trial court’s order by writ of mandate, arguing that the trial court erred in ordering the transmission of the raw data to anyone other than a licensed psychologist or neuropsychologist. (Id. at p. 834.)

In conducting its review, the appellate court noted the absence of “statutory authority … precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 834.) The appellate court also recognized “the trial court’s broad discretion in discovery matters” and its “power to order disclosure of test materials and data to the plaintiff’s attorney.” (Id. at p. 835.)

The only evidence addressing whether the trial court in Randy’s Trucking had abused its discretion in ordering the transmission of raw examination data to plaintiffs’ counsel was the declaration of defendants’ neuropsychologist. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 837.) The appellate court acknowledged issues or “dangers” which, according to defendants’ neuropsychologist, may result from the exposure of test materials and raw data, which the court found may include “compromising the validity of future neuropsychological test results”, the potential for “misuse and misinterpretation of tests” by untrained persons, “potential conflicts with the APA Ethical Standards” including “ ‘several key principles in the Specialty Guidelines for Forensic Psychology of the American Psychological Association (2013)’ ”, “an 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 that “ ‘ “[l]awyers involved in brain injury litigation routinely coach their clients how to approach neuropsychological testing to their advantage.” ’ ” (Ibid.)

 

Notwithstanding the “dangers” cited by defendants’ neuropsychologist, the court in Randy’s Trucking found that defendants had failed to show why a protective order would not ameliorate the dangers or risks which may result from the disclosure of raw examination data or the risk of any potential for violating the neuropsychologist’s ethical obligations. (Randy’s Trucking, supra, 91 Cal.App.5th at pp. 837-838.) The court further noted that, while defendants’ neuropsychologist had identified various standards which the neuropsychologist claimed could be violated by a disclosure of raw examination data, the neuropsychologist had failed to explain these potential violations or submit copies of the standards to the trial court. (Id. at p. 838.)

When weighing the evidence submitted by defendants against “plaintiffs’ right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion …”, the court determined that “[w]ithout the raw data …, 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.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) The court concluded that “[b]ased on the record before it, the trial court reasonably could find plaintiffs had a legitimate need for the raw data … and the concerns about maintaining test security would be satisfied with a protective order.” (Id. at p. 848.) For these, and other reasons more fully discussed in Randy’s Trucking, the court found that writ relief was not warranted. (Id. at pp. 838 & 848.)

As the dispute at issue in Randy’s Trucking is substantively similar if not identical to the dispute at issue in the present proceeding, that decision is persuasive and on point.

While Dr. Silva describes various “formal requirements”, statements, and standards including those issued by the APA, Dr. Silva quotes only select portions of these materials which Dr. Silva contends could be violated if the Raw Data is transmitted to Silvia’s counsel. Wholly absent from the motion is a sufficiently complete copy of these requirements, statements, or standards. Dr. Silva also fails to identify which “laws and regulations” promulgated by the State of California prohibit Dr. Silva from transmitting the Raw Data to Silvia’s counsel, and fails to provide a sufficient explanation showing why transmission of the Raw Data to Silvia’s counsel would violate these laws or regulations, or why any violation of these laws or regulations could not be alleviated by an appropriate protective order.

In addition, the conclusory contentions offered by Dr. Silva regarding potential violations which purportedly could occur if the Raw Data is provided to Silvia’s counsel are themselves insufficient to explain these violations, or to show why a protective order could not alleviate any potential violations or resolve any risks relating to the “security” of the Raw Data or its dissemination to the general public.

The select language set forth in the Silva declaration and in the memorandum also suggests that the standards or restrictions referenced by Dr. Silva are intended to address the reproduction of test materials to the general public, or to persons who may not safeguard their use. (See, e.g., Silva Decl., ¶ 12.) For example, the language cited by Dr. Silva suggests that the Raw Data may be disclosed in litigation involving the type of claims asserted by Silvia in this action, provided there exist appropriate and sufficient safeguards regarding its use. Dr. Silva and Costco fail to explain why a protective order could not provide appropriate safeguards regarding the use of the Raw Data outside of this litigation.

In addition, the language of the APA’s Code of Conduct standards 9.04, 9.07, 9.11, set forth in Costco’s opposing memorandum, does not on its face show that Dr. Silva is prohibited from releasing the Raw Data under the circumstances present here. For example, Code of Conduct standard 9.04 states that a psychologist “may” refrain from releasing test data to protect a client from harm, or from misuse or misrepresentation of that data. (Memorandum at p. 4.) Code of Conduct standard 9.07 refers only to the “use” of assessment techniques by unqualified persons, and does not refer to their release or disclosure for the purpose cited by Silvia and her counsel. (Ibid.) Though Code of Conduct standard 9.11 requires that a psychologist undertake reasonable efforts to maintain the integrity and security of test materials consistent with the “law” (ibid.), this language suggests to the Court that, to the extent there exists an appropriate protective order sufficient to maintain the integrity and security of the Raw Data, such as by prohibiting use of the Raw Data outside of this litigation, Dr. Silva would not be prohibited from releasing the Raw Data to Silvia’s counsel. Dr. Silva and Costco fail to explain why an appropriate protective order could not satisfy any requirements imposed under these standards.

Regarding Costco’s argument that Silvia’s counsel is not qualified to interpret the Raw Data, counsel “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 ….” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) Moreover, available information suggests that Silvia has not retained an expert to whom the Raw Data could be transmitted. Under these circumstances, Silvia “should not be forced to retain an expert to gain access to these materials and even if [she does] retain one, that expert can only assist [Silvia’s counsel] in preparing for cross-examination; to prepare and conduct an effective cross-examination, ‘the attorney must themselves possess more than a secondhand understanding of the information being scrutinized.’ ” (Ibid.) For these reasons, any purported inability of Silvia’s counsel to interpret the Raw Data does not, alone, justify a denial of the motion.

Though Costco also asserts that, generally, attorneys can use test information to coach future clients, “that risk is not unique to psychological testing.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 841.) Further, Costco has failed to “show testing integrity is meaningfully compromised by the potential for some attorney recall.” (Ibid.)

The remaining arguments advanced by Costco are themselves insufficient to show that “attorneys regularly violate protective orders, including those concerning psychological or neuropsychological testing materials” or the existence of “a substantial risk of abusive intentional dissemination or an unacceptable risk of inadvertent disclosure” such that no protective order would be adequate to address Dr. Silva’s concerns about the security of the Raw Data or its release outside of this litigation. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 842.)

Silvia has made a sufficient showing of the need for her counsel to obtain the Raw Data at issue in the present proceeding in order to permit her counsel to understand the information at issue with respect to the examination conducted by Dr. Silva. There is nothing to suggest, or which would permit the Court to conclude, that no protective order could sufficiently address any concerns regarding the security, integrity, or potential for misuse of the Raw Data, or prevent its release to persons not a party to or otherwise involved in this litigation. Therefore, for the foregoing reasons, the Court intends to grant the motion subject to an appropriate protective order consistent with the discussion in Randy’s Trucking.

The Court infers from the moving and opposing papers that the parties have not engaged in efforts to discuss or agree to the terms of a protective order with respect to the Raw Data. Therefore, though the Court intends to grant Silvia’s motion, the Court will continue the hearing to permit the parties sufficient time to meet and confer regarding the terms of an appropriate protective order. The Court will order the parties to submit one or more proposed protective orders consistent with the discussion in Randy’s Trucking and this ruling. In addition, the Court will order the parties to submit individual or joint status reports describing the parties’ meet and confer efforts and what, if any, issues remain to be resolved. If the parties fail to reach an agreement as to an appropriate protective order, the Court will resolve the dispute at the continued hearing.

The Court further notes that Rule 3.3 of the Rules of Professional Conduct provides that a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel … [¶].” (Rules Prof. Conduct, rule 3.3(a)(2).) The Fifth District Court of Appeal’s decision in Randy’s Trucking is, for reasons further discussed above, directly on point and adverse to the position advanced by Costco in this proceeding. Silvia’s counsel did not disclose Randy’s Trucking. The Court questions why counsel for Costco did not disclose this legal authority in its opposition to Silvia’s motion. Therefore, the Court will require Costco’s counsel, Jessica Farley, to appear at the present hearing on the motion, and explain to the Court why counsel did not disclose Randy’s Trucking in its opposition to Silvia’s motion.”

(See Minute Order.)

In the Minute Order, the Court noted that there were no appearances made by the parties at the February 24, 2025, hearing on the motion to compel, and ordered Costco’s counsel “to appear without exception on March 24, 2025[.]”

On March 18, 2025, plaintiffs filed a “Stipulated Protective Order Re: Disclosure Of Neuropsychological Test Materials And Raw Data” (the Protective Order), which is executed by the parties’ counsel and which, under its terms, “applies to the neuropsychological raw data, test materials, scoring sheets, audio recordings, and interpretive reports” prepared by Dr. Silva. (Mar. 18, 2025, Protective Order at p. 1, ll. 22-25 & ¶ 1.)

The Court approved the Protective Order on March 18, 2025.

The Court’s records reflect that the parties have not submitted either joint or individual status reports setting forth any issues which remain to be determined with respect to the motion to compel, as required by the Minute Order.

Analysis:

As further discussed in the Minute Order and above, the Court has determined that Silvia made a sufficient showing of the need for her counsel to obtain the Raw Data at issue in the motion to compel. The Court also determined, for reasons further set forth above and in the Minute Order, that there was insufficient information to suggest, or from which the Court could conclude, that a protective order would not sufficiently address any concerns asserted by Costco or Dr. Silva regarding the security, integrity, or potential for misuse of the Raw Data, or be effective to prevent the release or disclosure of the Raw Data to persons outside of this litigation. Therefore, and for all reasons set forth above, the Court stated its intention in the Minute Order to grant the motion to compel subject to an appropriate protective order consistent with the discussion in Randy’s Trucking.

Considering the terms of the Protective Order executed by the parties’ counsel and described above, it is the Court’s understanding that, with respect to the production of the materials sought by Silvia in the motion to compel, the parties have agreed that the terms of the Protective Order appropriate, sufficient, and consistent with the decision in Randy’s Trucking which, for reasons noted in the Minute Order set forth above, is directly on point, persuasive, and adverse to the position advanced by Costco in its opposition to the motion to compel. (See Protective Order at p. 1, ll. 25-27.) Though the Protective Order also includes a statement that Costco requests oral argument on the motion to compel before the Protective Order becomes effective, Costco has failed to submit a status report setting forth any issues which remain to be resolved, as required by the Minute Order.

The Court construes the absence of any joint or individual status reports describing any issues which remain to be resolved as a concession by the parties that the issues and points raised in the motion to compel, and Costco’s opposition to that motion, have been resolved consistent with the discussion in Randy’s Trucking. For these and all reasons further discussed above, the Court will grant the motion to compel as to plaintiffs’ request for an order requiring Costco to produce all materials relating to Dr. Silva’s examination of Silvia, subject to the Protective Order. To the extent plaintiffs request in the motion to compel an order striking Dr. Silva as Costco’s expert, the motion will be denied.

The Court has reviewed and does not intend to sign the proposed order submitted by plaintiffs with the motion to compel. The Court will direct plaintiffs to submit a corrected proposed order which conforms to the Court’s ruling herein.

In addition, as further discussed above and in the Minute Order, the Court questions why counsel for Costco did not disclose in its opposition to the motion to compel, the Fifth District Court of Appeal’s decision in Randy’s Trucking which is, as further discussed above, directly on point and adverse to the position advanced by Costco in this proceeding. (See Rules Prof. Conduct, rule 3.3(a)(2).) The Court has ordered Costco’s counsel to appear without exception at the March 24, 2025, hearing on the motion to compel. (See Minute Order.) For all reasons further discussed above and in the Minute Order, the Court will require Costco’s counsel, Jessica Farley, to, at the hearing, explain to the Court why counsel did not disclose Randy’s Trucking in its opposition to Silvia’s motion.