Court errs in allowing presence of plaintiff’s counsel in adjoining room to monitor psychiatric examination where such measures were not needed. Toyota Motor Sales, U.S.A., et al. v. The Superior Court of Los Angeles County, (No. B226902 California Courts of Appeal, Second Appellate District, Division Four, November 9, 2010).
Defendant moved the court to compel the plaintiff to submit to an independent psychiatric examination. In opposition to the motion, plaintiff’s counsel demanded that he be present at the examination to listen to and monitor the examination. Defendant objected to the demand, arguing that defendant’s experts believed that counsel’s presence would interfere with the exam’s validity. The trial court agreed to make an order prohibiting communication about questioning, but permitted plaintiff’s attorneys’ presence in an adjoining room and his contemporaneous monitoring of the monitoring of the examination. Defendant filed a motion to modify the order claiming that the plaintiff’s attorney presence should not be permitted. The trial court denied the motion and the defendant’s petitioned to the appeals court for review.
The appeals court granted the petition. A plaintiff cannot insist on attorney’s presence at the psychiatric examination. Thus, the presence of an attorney is not required during an examination. Trial courts do retain the power to allow counsel’s presence “or to take other prophylactic measures when needed”. There is no showing of a need for plaintiff’s attorney to be present or monitor the examination. Also, defendant produced evidence that such monitoring could compromise the exam’s integrity.
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