Substantial New Limitations on Conducting Mental Examinations Involving Children 15 or Younger in California
Beginning January 1, 2018, defendants will face new and rigorous obstacles to presenting a complete defense for their client in sexual misconduct lawsuits involving children 15 years of age or younger. At the behest of the plaintiff’s bar, the Legislature passed Senate Bill 755 this summer, which will become Code of Civil Procedure § 2030.020. That legislation creates new hurdles for conducting mental examinations of children under 15 years of age.
- These examinations will be limited to three hours inclusive of breaks, unless the court grants additional time, for good cause; and
- Only a licensed physician or clinical psychologist with expertise in child abuse and trauma can conduct the examination. Expertise is defined as a “doctoral degree in psychology” and five years of postgraduate experience in the diagnosis of emotional or mental health.
The rationale for such legislation is the presumption that defense-retained experts will “re-traumatize” the child. Arguably, however, a thorough, diligent plaintiff-retained forensic examination runs the same risk of “re-traumatizing” the child? (Any forensic examination, unlike clinical treatment, is not a form of treatment.) Yet the legislation contains no similar time limitations, or professional qualification requirements, on the plaintiff’s retained expert examining the child. This is yet another area in which California’s discovery statutes have been seriously tilted to the plaintiff’s advantage.
The first takeaway here is to complete any IMEs on cases involving children 15 and younger this year. But time is growing short.
The second takeaway here is that any IME will require careful discussion with the examiner to strategize over how the three hours should be spent. Currently, in our experience, such examinations may last from 5-6 hours, and will consist of both an interview of one to two hours, and psychological testing that can last 3-4 hours. These tests can take a considerable period of time to complete. For example, the MMPI-2 test, an important diagnostic tool, itself usually takes more than one hour to complete. Other diagnostic tests often take anywhere from 15-45 minutes to administer. Because these tests contain validity scales, as well as other scales to determine if the examinee has various psychological conditions, or personality traits, these tests are critical to a thorough understanding of the examinee’s mental conditions.
The third takeaway is that defense attorneys should not accept the change in law without resistance. We need to be prepared to make good faith arguments for “good cause” to extend examinations beyond three hours in appropriate situations. Defense attorneys should consult with examiners in order to prepare factually specific declarations demonstrating why additional time is necessary. They should also consider what their expert might state in testifying at deposition or trial about what other activities they wanted to conduct but could not, and why. Defense attorneys may be able to obtain stipulations for longer examinations, or horse trade other discovery rights and/or extensions of time, to lengthen the examination period without needing a court order.
The fourth takeaway is to be sure the examiner selected meets the education and experience qualifications. This requirement though is something of a paper tiger. The statute does not require five years of experience in the treatment or diagnosis of children. Nor does the statute require any experience as a clinician or forensic examiner in the specific field of sexual abuse.