California Court of Appeals May Have Made it Harder to Obtain Neuropsychological Examinations

A recent published California Court of Appeal decision has made it easier for plaintiffs to frustrate, and possibly thwart, defendants’ ability to investigate cognitive complaints associated with traumatic brain injury cases. In Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, the Fifth District Court of Appeal ruled that a trial court has discretion to order transmission of neuropsychological testing data to opposing counsel directly. Customarily, such data would only be transmitted to an opposing party’s retained neuropsychologists.

This ruling is problematic because most neuropsychologists (in our experience) believe it would be an ethical violation to transmit raw data to anyone other than another licensed neuropsychologist. Notwithstanding, the Court reasoned that the America Psychological Association Ethical Standards appears to allow the transmittal of raw data when required by “court order.” This rule, however, was argued by the American Academy of Clinical Neuropsychology (AACN) to be in conflict with HIPPA requirements.

In upholding the trial court’s discretion to require the production of raw data to opposing counsel, the Court of Appeal reasoned that the opposing side’s right to take discovery and cross-examine defense experts outweighed the ethical and potential copyright issues of disclosure.

The Court of Appeal, however, noted that an abuse of discretion could be found if the requesting party could show that the test security was undermined “through canvassing of other local neuropsychologists, that the broader neuropsychology community refuses to conduct exams under invasive parameters that threaten the validity of the assessment process.”

This ruling could have a profound chilling effect on defendants’ ability to retain neuropsychological experts of their choosing. It is not hard to imagine that at least some reputable neuropsychologists will refuse to conduct forensic litigation examinations out of an abundance of caution to avoid stepping on any ethical or legal landmines.

An appeal has been made, and is pending, to the California Supreme Court for depublication of this Court of Appeal ruling.