Compelled Vocational Examinations of Injured Plaintiffs are Not Permitted in California

Defendants litigating against personal injury claims in California cannot compel injured plaintiffs to submit to a vocational rehabilitation examination—even if the plaintiff has retained his or her own vocational expert to testify regarding plaintiff’s incapacity to return to employment.  This limitation, recently promulgated by the California Court of Appeal in Haniff v. Superior Court (Hohman), No. H043345 (Cal. Ct. App. March 1, 2017) (“Haniff”), constricts a defendant’s ability to challenge a plaintiff’s loss of earnings claims and reinforces, generally, that the only proper methods of discovery under Code of Civil Procedure section 2019.010 are 1) depositions, 2) interrogatories, 3) document requests, 4) physical and mental examinations, 5) requests for admissions, and 6) exchanges of expert witness information.  

In Haniff, following a motor vehicle accident, plaintiff sued defendants contending that he suffered severe injuries and seeking various damages, including, importantly, sizable loss of earnings claims.  After defendants obtained an independent medical examination of plaintiff wherein the doctor opined that plaintiff’s injuries did not prevent him from securing employment, defendants served plaintiff with a “Demand for Vocational Rehabilitation Examination,” which plaintiff objected to on the grounds that Section 2019.010 did not expressly authorize such types of examinations. 

Consequently, defendant filed a motion to compel arguing that under California’s extremely broad scope of discovery, vocational examinations are permitted.  Furthermore, because plaintiff had retained a vocational expert to testify at trial regarding plaintiff’s inability to return to work, defendants contended that denying defendants such an examination would violate their due process rights. 

On a writ of mandate, the California Court of Appeal, ruling in favor of plaintiff, held that proper methods of discovery, as enumerated in Section 2019.010, do not include examination of a plaintiff by a vocational rehabilitation counselor.  Relying purely on principles of statutory interpretation, the Court held that vocational rehabilitation examination was not permissible because it did not fall within the six authorized methods of discovery.  Declining to engage in judicial activism, the Court held that this is a decision better left for the legislature. 

The Court also rejected defendants’ due process argument finding that under California law, defendants would have access to the notes of plaintiff’s vocational expert and would therefore effectively have equal access to plaintiff on this issue.  

Notably, at issue in Haniff was whether the defendants could compel plaintiff to submit to a vocational examination conducted by a non-physician.  Although physicians retained to examine medical conditions are generally unable to opine as to the scope of vocational duties a plaintiff can perform, considering that Section 2019.010 expressly permits physical examinations by a licensed physician, whether a defendant may demand a physical examination wherein a licensed physician performs both a medical and vocational examination remains open to debate under Haniff