Parker v. Kalish

Kalish, Mark : Defendant and
Respondent represented by:

David Percy Hall
Neil Dymott Frank McFall &
1010 2nd Ave #2500
San Diego, CA 92101

James Anthony Creason
Creason & Aarvig, LLP
32 Executive Park, Suite 105
Irvine, CA 92614
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Forensic psychiatrist Mark Kalish
From Parker v. Mark Kalish Appellant's brief:

...Second, independently, plaintiff contended that during the mental
examination itself, defendant [Mark Kalish] committed malpractice and
violated the relevant standard of care  through consistent displays of abuse,
disparagement inattention, and hostility towards plaintiff.
 See, e.g., CT 2 at ¶ 6
(swearing that defendant was “abusive and unprofessional”); CT 3 at ¶ 12 (defendant
sought to obtain “sadistic pleasure” from the abuse of plaintiff during the examination;
(stating that defendant laughed at plaintiff during the mental examination and failed to
treat him with the  dignity, compassion and respect required by the standard of care of
others  in the  profession for a mental examination).  

This deliberate  conduct --  especially towards a vulnerable
person with the mental conditions that defendant knew plaintiff possessed –
again caused substantial financial as well as emotional distress to plaintiff.  

Significantly,  in connection with  the  anti-SLAPP
 motion to strike,
defendant denied none of these contentions.   

Rather than defend his actions, defendant instead filed his anti-SLAPP motion
exclusively on the ground that the conduct identified by plaintiff was, as a
matter of law, absolutely privileged
pursuant to the litigation privilege in Civil Code
§ 47(b)...

The sole authority cited by the trial court in granting the motion to strike
(apart from the mere text of Section 47(b)) was Drum v. Bleau, Fox & Assocs.
(2003) 107 Cal.App.4th 1009.  See CT 101.  Drum, however, (1) had nothing
to do with liability for a mental examination, and instead dealt with liability for
a wrongful levy on property,
id. at 1027-28; (2) reversed the grant of a motion
to strike, id. at 1028; and (3) was disapproved of by the California Supreme
Court two years prior to the trial court’s exclusive reliance upon this authority
below.  Rusheen, 37 Cal.4th at 1065.  

In short, the trial court’s order provides no support for the grant of defendant’s anti-
SLAPP motion in the present case.

Defendant’s memorandum of points and authorities below, by contrast,
relied solely on two cases: Silberg v. Anderson (1990) 50 Cal.3d 205 and
Gootee v. Lightner
(1990) 224 Cal.App.3d 587.  CT 11-22.  

Both Silberg and Gootee involved mental examinations, but both the facts and holdings
in these two cases are worlds apart from the contentions made by the plaintiff herein.
Silberg and Gootee were both marital dissolution actions in which all
parties stipulated to an evaluation conducted by a neutral psychologist in order
to make a recommendation to the trial court regarding the entry of appropriate
visitation and custody arrangements.  Silberg, 50 Cal.3d at 210; Gootee, 224
Cal.App.3d at 589.

In both Silberg and Gootee, the psychologist conducted the
evaluation and submitted a report that was adverse to the husband and that
recommended the court grant custody to the wife, and the husband in both
cases responded to  this recommendation by filing a lawsuit in  which  he
claimed that the report was inaccurate and defamatory.  Silberg, 50 Cal.3d at
210-11; Gootee, 224 Cal.App.3d at 589-90.  In both cases, the husband argued
that the erroneous report and recommendation by the psychologist had resulted
in the court awarding custody of the children to the wife, and on that basis
sought damagesfor loss of visitation with and custody of his children.  Silberg,
50 Cal.3d at 211; Gootee, 224 Cal.App.3d at 590.

In Silberg, the California Supreme Court (entirely correctly) held that the
husband could not sue based upon the recommendations of the neutral
psychologist to the  court –  even if these recommendations were allegedly
biased or erroneous – because such a report was protected by the litigation
privilege.  Silberg, 50 Cal.3d at 211-20.  Less than seven months after the
holding in Silberg, the Court of Appeal in Gootee followed that recentlydecided
authority and similarly held that, pursuant to Silberg, the litigation
privilege precluded the husband from filing an action against the psychologist
for making an allegedly erroneous custody recommendation to the trial court.
Gootee, 224 Cal.App.3d at 591-93.

Both Silberg and Gootee based its holding on what is indisputably the
case: that to allow a litigant to file a lawsuit based upon the report and
recommendations of a neutral psychologist to the court would fly directly in
the face of the testimonial litigation privilege, and would deter the willingness
of such witnesses to provide honest recommendations adverse to one of the
litigants for fear of a lawsuit based upon this testimony.  Silberg, 50 Cal.3d at
214 (holding that the litigation privilege extended to cover such testimonial
conduct because witnesses might otherwise “distort their testimony” for fear
of “protracted and costly lawsuits” from disappointed litigants unhappy with
the psychologist’s recommendation to the court).  It was for this principal
reason that the California Supreme Court, as well as shortly thereafter the
Court of Appeal, held that witnesses could not be dissuaded from testifying
truthfully by the threat of litigation filed by parties adversely affected by the
recommendation to the court made  by the  psychologist.  

As the Court of Appeal explained in Gootee:

Freedom of access to the courts and encouragement of witnesses
to testify truthfully will be harmed if neutral experts must fear
retaliatory lawsuits from litigants whose disagreement with an
expert’s opinions perforce convinces them that the expert must
have been negligent in forming such opinions. . . . Accordingly,
we conclude the privilege applies to bar appellant’s tort claims
against respondents.
Gootee, 224 Cal.App.3d at 593.

Plaintiff herein does not disagree in the slightest with these two
holdings.  They are, however, wholly inapplicable to the present action, in
which plaintiff does not seek to recover damages based upon the testimony or
recommendation made to the  court by defendant, and in which no such
recommendation or testimony was even made.  Defendant is not being sued
based upon his adverse conclusions; rather, he is being held accountable for
activities wholly apart from any testimony, conclusions, or recommendation
to the court.

Defendant was not a neutral psychologist appointed by a tribunal nor,
in the present case, did defendant even offer a report or any other testimony
at trial.

Moreover, even if he had done so, plaintiff would not have filed suit
against defendant based upon any such adverse conclusion ortestimony, as the
testimonial privilege would properly bar such an action.

Plaintiff contends herein that wholly apart from whatever testimony –
good, bad, or indifferent – defendant might potentially have submitted at any
future trial,
defendant should be held accountable not for any such hypothetical
testimony, but rather for the abusive, sadistic, and professionally negligent
misconduct that occurred at the examination itself.

As the authorities discussed at length infra amply reflect, whereas a disappointed
litigant may not permissibly file an action  based upon the adverse  testimony or
recommendation of a psychologist (or any other medical professional) derived
from a physical or mental examination, such
individuals may sue, as here, for
either physical or emotional injuries sustained as a result of the examination
itself (if performed below the relevant standard of care). It is for these injuries,
not any hypothetical and nonexistent testimony before a tribunal, for which
plaintiff seeks recovery herein.

It bears repeating that nowhere  below did defendant deny the
misconduct  identified by the plaintiff  during the performance of the
examination itself: the abuse, the false and injurious claim that defendant had
been retained by Behrouzi, the unprofessional violation of the standard of care
for  individuals with the mental conditions possessed by plaintiff, and the
sadistic and deliberate infliction of emotional  distress upon plaintiff  by
defendant were all undisputed.  Such conduct is actionable even if defendant’s ultimate
testimony would have been entirely favorable to the plaintiff, and it
is this conduct– not any recommendation at trial – for which plaintiff may and
does properly seek relief...

In Greenberg, the plaintiff subsequently filed a lawsuit against the
examiner, Dr. Greenberg, seeking relief (as here) not for the contents of the
report,  but rather based upon injuries that allegedly resulted from Dr.
Greenberg’s statements during the independent medical examination; e.g., his
requests and referral during the exam.  Id. at 532.  The trial court granted
summary judgment to  the examiner, and the Colorado Supreme Court
unanimously reversed.  Id. at 530-31

The Colorado Supreme Court cited and
relied upon multiple cases from California, as well as (secondarily) elsewhere,
and noted that “all courts that have considered the issue agree, under one
form of analysis or another, that a physician owes a duty of care to a nonpatient
examinee to conduct the examination in a manner not to cause harm to the
person being examined. . .

[These authorities] uniformly recognize that . . .
a physician owes a duty to the
person being examined to exercise professional skill so as not to cause harm
to that person by negligently performing the examination.”  

The Colorado Supreme Court accordingly held that when, as in this case, the
examiner allegedly performed the examination or made statements therein
negligently, or below the standard of care, there is a valid cause of action in
favor of the examinee.

After the underlying litigation had concluded (favorably to the plaintiff),
plaintiff filed a lawsuit against Dr. Kreutzer based upon his conduct during the
underlying court-ordered mental examination.  The allegations asserted in
Harris are strikingly similar  to those at issue  in the present action and
involved core  claims of medical malpractice  and intentional infliction of
emotional distress.  Id. at 194.  The plaintiff in Harris, as here, alleged not that
the adverse report and testimony submitted by defendant caused her harm, but rather that the court-
ordered mental examination by defendant was
unprofessional, substandard, harassing, and caused her physical and emotional harm.  

The plaintiff in Harris, as here, alleged that the examiner “knew of
her pre-existing mental and emotional conditions and knew that she would be
susceptible to  further  harm if treated in an abusive manner  during the
examination,” but that the examiner nonetheless “verbally abused [her], raised
his voice to her, caused her to break down into tears in his office, stated she
was ‘putting on a show,’ and accused her of being a faker and malingerer.”  Id.
The trial court dismissed the plaintiff’s action, but the Virginia Supreme
Court unanimously reversed, holding not only that an examiner in a courtordered mental examination
has a “duty [] to do no harm in the conduct of the examination,” but also that the claims raised by
plaintiff, if believed, could establish a violation of that duty and support a judgment for plaintiff at trial.

The  Virginia Supreme Court held, yet again, that while a
psychologist who conducts a court-ordered mental examination “is not liable
to the examinee for damages resulting from the  conclusions the physician
reaches or reports,”  and  hence  “no liability may arise from his report or
testimony regarding the examination,” a cause of action nonetheless lies
against a psychologist for professionally negligent performance during the
exam.  Id. at 200-02 (emphases added).  Both that holding, as well as the
conclusion that the allegations in Harris were sufficient to go to a jury, is
dispositive of the present case, which involves substantively identical
Simply put, every relevant authority to have considered the issue has
held that while  an examinee may not permissibly sue an examiner for the
testimonial contents of his or her  report, the examinee  may nonetheless
permissibly file an action based upon statements made or conduct negligently
performed during the examination itself that cause injury to the examinee.
When, as in this case, the injury arises not from the examiner’s testimony or
recommendation, but rather from the substandard and unprofessional conduct
of the examination, the privilege does not apply...

Dated:   November 17, 2008
Shaun P. Martin
Counsel for Appellant

Dr. Kalish's Response:

"...First, the above-described conduct allegedly undertaken
by Dr. KALISH can in no sense be described as outrageous.  

"Even if the conduct could be characterized as rude, it certainly was not
outrageous to a point necessary to establish an IIED claim.

"Secondly, the injuries and damages which Appellant allegedly
sustained cannot reasonably be characterized as so severe that no
reasonable person could be expected to endure them..."