1 jayesh patel, (sbn 132939) - equality case...

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281602457.1 05764-048

JOINT STIPULATION PURSUANT TO LOCAL RULE 37-2.1 REGARDING DEFENDANT PEPPERDINE’SMOTION TO COMPEL MENTAL EXAMINATIONS OF PLAINTIFFS

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JAYESH PATEL, (SBN 132939)[email protected]

JEFFREY J. ZUBER (SBN 220830)[email protected]

ROBERT W. DICKERSON JR. (SBN 89367)[email protected]

ZUBER LAWLER & DEL DUCA LLP777 S. Figueroa Street, 37th FloorLos Angeles, CA 90017 USATELEPHONE: (213) 596-5620 FACSIMILE: (213) 596-5621

Attorneys for Plaintiffs Haley Videckis and Layana White

PAULA TRIPP VICTOR (Bar No. 113050)[email protected]

PETER B. RUSTIN (Bar No. 181734)[email protected]

ANDERSON, McPHARLIN & CONNERS LLP707 Wilshire Boulevard, Suite 4000Los Angeles, CA 90017-3623TELEPHONE: (213) 688-0080 FACSIMILE: (213) 622-7594

Attorneys for Defendant PEPPERDINE UNIVERSITY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

HALEY VIDECKIS and LAYANAWHITE, individuals,

Plaintiffs,

vs.

PEPPERDINE UNIVERSITY, acorporation doing business inCalifornia,

Defendant.

Case No. 2:15-cv-00298-DDP (JCx)

JOINT STIPULATION PURSUANTTO LOCAL RULE 37-2.1REGARDING DEFENDANTPEPPERDINE’S MOTION TOCOMPEL MENTALEXAMINATIONS OF PLAINTIFFS;EXHIBITS IN SUPPORT THEREOF

(Filed concurrently with Notice ofMotion and Proposed Order)

Date: April 25, 2017Time: 9:30 a.m.Crtrm.: 20

Trial Date: May 23, 2017

/ / /

Case 2:15-cv-00298-DDP-JC Document 61 Filed 04/07/17 of 45 Page ID #:593

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281602457.1 05764-048 2


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Pursuant to Fed. R. Civ. P. 37(a) and Local Rule 37-2.1, Plaintiffs Haley

Videckis and Layana White (“Plaintiffs”) and Defendant Pepperdine University

(“Pepperdine”) submit the following joint stipulation regarding Pepperdine’s Motion

to Compel Mental Examinations of each Plaintiff. Pursuant to Local Rule 37-1, the

parties have met and conferred and had ongoing discussions on the issue of the

mental examination, including pre-filing conference of counsel on several

occasions, including and up to April 3, 2017.

DEFENDANT’S POSITION

I. NATURE OF THE DISPUTE

Pepperdine desires to have each Plaintiff submit to a standard mental

examination as a result of having recently learned that Plaintiffs are claiming post-

traumatic stress disorder, severe anxiety and depression, and, despite having not

sought treatment for their alleged distress, they have designated a forensic

psychologist to testify regarding the nature and extent of their emotional distress.

Pepperdine sought a stipulation for Mark Levy, M.D. and Ronald Roberts,

Ph.D. to perform a mental examination/psychological testing but Plaintiffs have

refused to voluntarily submit to such an examination/testing despite Pepperdine’s

good faith efforts. (See Exhibit A, Declaration of Paula Tripp Victor (“Victor

decl.”)). The bases for Plaintiffs’ refusal are outlined below.

II. INTRODUCTION

Plaintiffs are former players on the Pepperdine University Women’s

basketball team who claim they were discriminated against based upon their sexual

orientation. Although Plaintiffs have never sought psychological counseling for any

emotional distress, have never produced any records reflecting treatment for

emotional distress or actual diagnoses, and never suggested through deposition or

written discovery, other than in their responses to discovery provided on

February 15, 2017, after fact discovery cut-off, that they had any medical basis for

their purported claims, Pepperdine just learned that Plaintiffs are designating a


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psychologist as an expert witness who will testify about Plaintiffs’ “severe”

emotional distress caused by Pepperdine. As part of its expert discovery,

Pepperdine seeks a basic psychiatric examination/psychological testing in order to

properly prepare a defense to Plaintiffs’ claims. Without this examination,

Pepperdine cannot adequately test the validity of Plaintiffs’ mental injury claims,

their cause, or their effects. Plaintiffs do not dispute that their mental state is in

controversy or that Pepperdine has the right to examine them, rather, Plaintiffs argue

Pepperdine should have done so earlier. Plaintiffs’ argument ignores that expert

discovery is just beginning and Plaintiffs just disclosed their “severe” distress after

the fact discovery cut-off in February. Since Plaintiffs have put their emotional

states in controversy, and designated an expert of their own, good cause exists to

order the mental examinations.

III. THERE IS GOOD CAUSE TO ORDER THE MENTAL

EXAMINATIONS AND TESTING

A. Plaintiffs’ Mental Condition Is In Controversy

Rule 35 of the Federal Rules of Civil Procedure gives the Court authority to

order Plaintiffs to submit to a mental examination where two requirements are met:

(1) the mental condition of the party is “in controversy;” and (2) there is good cause

to conduct the examination. See Ragge v. MCA/Universal Studios, 165 F.R.D. 605,

608 (C.D. Cal. 1995); Fed. R. Civ. Proc. 35(a). Both elements are now present in

the case at hand.

To establish that a plaintiff’s mental condition is “in controversy” a defendant

must show more than that the party in question has claimed emotional distress.

Turner v. Imperial Stores, 161 F.R.D. 89, 97 (S.D. Cal. 1995). Rather, the case law

suggests “that courts will order plaintiffs to undergo mental examinations where the

cases involve, in addition to a claim of emotional distress, one or more of the

following: 1) a cause of action for intentional or negligent infliction of emotional

distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a


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claim of unusually severe emotional distress; [and/or] 4) plaintiff's offer of expert

testimony to support a claim of emotional distress.” Id. at 95.

Plaintiffs do not dispute that they have placed their mental state in

controversy, and it clearly is at this time. Although Plaintiffs never sought medical

treatment for their recently claimed emotional injuries and downplayed any such

distress during deposition, on February 15, 2017, nine days after fact discovery

closed, Plaintiffs provided responses to Pepperdine’s Interrogatories stating that they

“had experienced anxiety, panic attacks, severe depression and PTSD.” (Victor

Decl. ¶¶ 3-8.).

It was not until this time that Pepperdine learned Plaintiffs might be

vigorously pursuing damages for severe emotional distress. Based on the deposition

testimony of Plaintiffs, as well as the absence of any medical documentation as to

diagnoses, treatment or counseling for emotional distress, Pepperdine had no reason

to believe claims of severe emotional distress more than garden variety were being

pursued, and certainly not medically supported. (Victor Decl. ¶¶3-8)

Importantly, however, Plaintiffs have now recently indicated that they intend

to introduce expert testimony from a psychologist to support their claims. (Victor

Decl. ¶9). This, combined with Plaintiffs’ claims for emotional distress, places their

mental states in controversy. See Turner, 161 F.R.D. at 95; Tomlin v. Holecek, 150

F.R.D. 628, 633 (D. Minn. 1993)(there are other indicia of good cause present in

this case. The plaintiff intends to prove his claim at trial through the testimony of his

own expert witnesses, which also constitutes good cause for permitting the

defendant to conduct its own psychiatric examination of the plaintiff.); Lowe v.

Philadelphia Newspapers, Inc., 101 F.R.D. 296 (E.D.Pa.1983)(same).

B. There Is Good Cause to conduct the Mental Examinations

There is also good cause to compel the mental examinations. ‘“Good cause”

for a mental examination requires a showing that the examination could adduce

specific facts relevant to the cause of action and necessary to the defendant's case”


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that could not be discovered through less intrusive means. Ragge v. MCA/Universal

Studios, 165 F.R.D. 605, 609 (C.D. Cal. 1995). Pepperdine has conducted written

discovery, taken Plaintiffs’ depositions, and attempted to collect Plaintiffs’ medical

records that reflect any diagnosis, treatment and counseling for mental injury and

emotional distress, but Plaintiffs never received such treatment and counseling

(Victor Decl. ¶¶3-8). Plaintiffs’ belated presentation of more severe distress through

their own expert requires Pepperdine have the same opportunity to examine them to

fairly oppose their claims and rebut Plaintiffs’ expert.

Indeed, “[o]nly if no additional relevant information could be gained by an

examination of [plaintiff] should the motion for a psychiatric examination be

denied.” Duncan v. Upjohn Co., 155 F.R.D. 23, 25 (D.Conn.1994). This is a rule of

fundamental fairness to defendants. As explained by the Court in Ragge v. MCA,

One of the purposes of Rule 35 is to ‘level the playing field’ between

parties in cases in which a party's physical or mental condition is in

issue. Granting a request for a psychiatric examination pursuant to Rule

35 is to preserve the equal footing of the parties to evaluate the

plaintiff's mental state.” A plaintiff has ample opportunity for

psychiatric or mental examination by his/her own practitioner or

forensic expert.

Ragge, 165 F.R.D. at 608.

Thus, while Plaintiffs may attempt to argue that Pepperdine should have

sought the mental examination sooner (which contention is without merit as outlined

above and in the Victor declaration), there can be no doubt that, based on

developments that have occurred since the fact discovery cut-off date, good cause

exists for the examination and testing. Pepperdine would be unfairly prejudiced if it

were not allowed to obtain this information in order to test and rebut Plaintiffs’

expert testimony.

Moreover, Defendant is entitled to conduct the exam as expert discovery is


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just beginning. The parties stipulated to disclose experts on Monday, April 4, 2017

with depositions to occur shortly thereafter. (Victor Decl. ¶13). Although Plaintiffs

contend the exams should have been performed during fact discovery, this same

argument has been rejected by other courts. In Lester v. Mineta, the Northern

District court was faced with a similar situation. There, the plaintiff argued that the

defendant’s motion was untimely because “the proposed Rule 35 exams should be

considered non-expert discovery.” 2006 WL 3741949, at *1 (N.D. Cal. Dec. 19,

2006). The court disagreed, finding that the local rules (similar to the rules in this

district) do not categorize Rule 35 examinations as non-expert or expert. Id. The

court allowed the defendants to conduct the mental examination. The same should

occur here. Plaintiffs’ have placed their mental condition in controversy and hired

an expert to testify on their behalf despite any non-expert medical support.

Pepperdine would be severely prejudiced if it is unable to explore Plaintiffs’ claimed

distress with an expert of its own.

C. There Will Be no Prejudice to Plaintiffs

While Pepperdine will be severely prejudiced if not allowed to conduct a

mental examination/testing of its own, Plaintiffs will not be unduly burdened by the

examination. Pepperdine has attempted to make the examination as accommodating

as possible for Plaintiffs. As set forth in the declaration of Mark Levy, M.D.

(“Levy Decl.”) filed as Exhibit B herewith, the testing will be local to Plaintiffs,

will not take more than a day, is non-intrusive, in a format routinely given by

medical professionals, and may be scheduled at a date and time convenient to

Plaintiffs and the doctors.

Moreover, the examination/testing will be performed by licensed medical

experts. (Levy Decl. ¶¶1, 7, 9). The examination/testing will be conducted for

purposes of determining the nature and extent of Plaintiffs’ alleged emotional

distress which Plaintiffs claim were caused and/or exacerbated by Pepperdine.

(Levy Decl. ¶¶ 2, 7, 9).


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The mental examination and psychological testing together will last between

6 and 8 hours and will consist of a question and answer session, which will be

conducted under standard office conditions and will consist of the taking of

Plaintiffs’ pertinent history and present status, followed by the administration of a

written psychological examination to be conducted on either the same day or the

following day. Pepperdine’s experts will strive to work with Plaintiffs’ schedule in

determining the order and dates and times of these examinations. (Levy Decl. ¶¶5-

8). The psychological tests are known in the industry as Minnesota Multiphasic

Personality Inventory-2 (MMPI-2) and the Personality Assessment Inventory (PAI).

(Levy Decl. ¶8). Dr. Roberts will also conduct the Rorschach Inkblot Test. (Id.).

IV. CONCLUSION

Pepperdine’s Motion to Compel the Mental Examinations of both Plaintiffs

should be granted. Plaintiffs have placed their mental conditions in controversy by

recently claiming severe emotional distress and seeking to support such claims

through expert testimony despite never seeking medical treatment before.

Pepperdine merely wishes to level the playing field prior to trial by conducting

standard examinations of its own. There will be no prejudice to Plaintiffs.

PLAINTIFFS’ POSITION

Plaintiffs’ claims for emotional distress and the underlying facts have been

known to Defendant from the outset, including: 1) Ms. White’s attempted suicide

while she was a student at Pepperdine, and 2) that Ms. Videckis was taking

psychotropic medication for a preexisting condition while she was a basketball

player at Pepperdine. These are not and have never been secrets. There is no good

cause to bend the rules of discovery to make up for Defendant’s negligence in

pursuing this issue.

The only reason why Defendant feels the need to compel the mental

examination of Plaintiffs is because it dropped the ball on obtaining discovery

related to Plaintiffs’ mental status. Defendant has been on notice since day one of


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this case that Plaintiffs’ mental health was at issue, and in more than just in a

‘garden variety’ manner, as Defendant alleges. Defendant cannot say that it did not

know Plaintiffs’ mental status was an issue in the case, since it has requested and

received production of Plaintiffs’ medical records (including psychology/psychiatry

records) from as far back as when they were playing basketball in Arizona, before

they got to Pepperdine.

Federal Rule of Civil Procedure 16(b) requires the Court to issue a scheduling

order that limits the time of, among other things, the completion of discovery. Fed.

R. Civ. P. 16(b)(3). The schedule is not to be modified except “upon a showing of

good cause” and by leave of the court. Id. The Court’s scheduling order in the

present case requires fact discovery to be completed by February 6, 2017.

The parties have a Joint Stipulation to Extend the Fact Discovery Cut-Off

Date and Dates to Disclose Expert Witnesses (“Discovery Stipulation”) that is

currently pending before the Court. (See Exhibit C, Declaration of Jayesh Patel

(“Patel Decl.”)). The Discovery Stipulation requests an order granting an extension

of certain fact discovery cutoff dates as well as dates to disclose expert witnesses.

The Discovery Stipulation was not filed until recently because the parties

were engaged in extensive negotiations over the contents and scope of the Discovery

Stipulation. Plaintiffs’ mental examinations by Defendant were not included in the

Discovery Stipulation, and thus should have been requested before the original

discovery cutoff date, which was February 6, 2017. It is too late and frankly

improper for Defendant to make a motion to compel mental examination now.

In fact, the only reason Defendant made the sudden decision to seek a

stipulation allowing Plaintiffs to be examined was because the parties disclosed

which experts each of them would be relying on at trial. (Victor Decl. ¶9).

Plaintiffs disclosed that they had retained Dr. Anthony Reading, a psychologist, as

an expert in this action. (Victor Decl. ¶9). That was when Defendant began to

scramble, and as a result filed the present motion to compel. But for the sheer


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fortuitousness of the parties exchanging the names of expert witnesses when they

did, Defendant would not have considered examining Plaintiffs.

Moreover, Defendant misrepresented the facts when it claimed it offered the

name of two different experts to examine Plaintiffs. (Patel Decl. ¶6). Defendant

never mentioned Dr. Levy to Plaintiffs until two days ago, when Defendant

disclosed Dr. Levy as one of its experts. Id. This means that Plaintiffs never got the

opportunity to weigh the pros and cons of being examined by Dr. Levy. Plaintiffs

were surprised to see Dr. Levy’s name in this motion to compel.

Plaintiffs alleged a cause of action for emotional distress, and did absolutely

nothing that would indicate to Defendant that this claim was somehow less serious

or of less importance than their other causes of action. In Ms. Victor’s declaration,

she brings up the fact that Ms. Videckis never brought up her emotional distress

during Ms. Videckis’ deposition. (Victor Decl. ¶5). Yet, it was Ms. Victor who

chose not to ask Ms. Videckis about her emotional struggles stemming from her

time at Pepperdine. Ms. Videckis was the deponent and merely responding to

questions she was asked by counsel. How can it be Ms. Videckis’ fault that Ms.

Victor chose not to ask her these questions?

In the complaint, Ms. White describes how she tried to take her own life

while she was a student at Pepperdine. In fact, Defendant knew about Ms. White’s

attempted suicide at the time the lawsuit was filed, and asked Ms. White questions

about it during her deposition. (Patel Decl. ¶2). If knowledge of an attempted

suicide does not put a party on notice of the importance of a person’s mental issues

in a case, it is hard to imagine what would. A party to the lawsuit tried to take her

own life, and is alleging emotional distress; yet the Defendant made the decision to

ignore all of it until it was too late.

/ / /

/ / /

/ / /


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That Defendant initially chose to minimize the severity of the psychological

impact the events at Pepperdine had on Plaintiffs does not now give Pepperdine the

right to compel a mental exam because it is suddenly worried that it did not do

enough discovery into Plaintiffs’ claims of emotional distress.

DATED: April 7, 2017 ZUBER LAWLER & DEL DUCA LLP

By: /s/ Jayesh PatelJayesh PatelJeffrey J. ZuberRobert W. Dickerson Jr.

Attorneys for Plaintiffs HALEY VIDECKISAND LAYANA WHITE

DATED: April 7, 2017 ANDERSON, McPHARLIN & CONNERS LLP

By: /s/ Paula Tripp VictorPaula Tripp VictorPeter B. Rustin

Attorneys for Defendant PEPPERDINEUNIVERSITY

Attestation of Concurrence

I, Paula Tripp Victor, as the ECF user and filer of this document, attest that

concurrence in the filing of this document has been obtained from Jayesh Patel.

Dated: April 7, 2017 /s/ Paula Tripp VictorPaula Tripp Victor


EXHIBIT A11


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DECLARATION OF PAULA TRIPP VICTOR

I, Paula Tripp Victor, declare as follows:

1. I am an attorney-at-law duly licensed to practice before all courts in the

State of California and the United States District Courts in California, and am a

partner with the law firm of Anderson, McPharlin & Conners LLP, attorneys of

record for Defendant, Pepperdine University in the above-entitled action.

2. I have personal knowledge of the matters set forth herein, and if called

upon as a witness to testify thereto, I could and would competently do so.

3. On April 29, 2016, I caused to be served notices of taking the

depositions of Plaintiffs Haley Videckis and of Layana White, both of which

included a request for production of documents. Request nos. 74-77 (Videckis) and

78-81 (White) specifically seek documents which reflect any consultations and

treatment and the costs thereof for medical and mental health services resulting from

the alleged wrongful conduct of Pepperdine. No documents responsive to these

requests were then or have ever been produced.

4. I took the deposition of Layana White on May 23 and 24, 2016.

During the deposition, I inquired about her claim of emotional distress, and

specifically about her alleged attempt to commit suicide as it was alleged in the

complaint. She stated she took 7 or 8 pills (hydroxyzine) that had been prescribed

for rashes due to anxiety in 2012 (before attending Pepperdine) and in the summer

of 2014. When Haley realized Layana had taken some pills, she made her vomit

and then Layana was okay. Haley was the only person who Layana told about the

alleged attempt and she never saw a doctor or sought counseling. The medical

records we later obtained by subpoenaing Kaiser, for instance, do not indicate

anything about suicide, anxiety, or any other emotional distress until over a year

later when she made one visit complaining of headaches and mentioned stress due to

this lawsuit. Plaintiff did not testify in deposition about any other alleged severe

distress.

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5. On June 6 and 7, 2016, I took the deposition of Haley Videckis. She

testified that since summer of 2015, she and Layana have been employed as

independent contractors at a start-up company where they have each earned over

$100,000. She did not testify regarding severe emotional distress.

6. On December 30, 2016, I caused to be propounded Requests for

Production of Documents, Set Two to both Plaintiffs. Request nos. 74-77

(Videckis) and 79-82 (White) specifically seek documents which reflect any

consultations and treatment and the costs thereof for medical and mental health

services resulting from the alleged wrongful conduct of Pepperdine. Plaintiffs

responded on February 13, 2017, by stating that all responsive documents have been

produced, yet no documents responsive to these requests have ever been produced.

7. On December 30, 2016, I caused to be propounded Interrogatories to

both Plaintiffs. Interrogatory nos. 1-14 seek information as to consultations,

treatment, costs of services, etc. from healthcare providers as a result of injuries they

claim in this action. On February 15, 2017 (nine days after fact discovery ended

and many months after their depositions), Plaintiffs, for the first time, identified

specific conditions and symptoms of emotional distress they attribute to the conduct

of Pepperdine employees. Specifically, Haley Videckis responded:

“Plaintiff’s injuries include, but are not limited to the following:Plaintiff has experienced severe depression. Plaintiff has alsoexperienced severe anxiety, often accompanied by physical shaking.Plaintiff often wakes up not knowing where she is due to her anxiety.Plaintiff’s anxiety and depression have been getting progressivelyworse since the incident at Pepperdine.

Plaintiff also feels stress due to the fact that she feels as if she is notliving a life that is her own. Compared to going from playing basketballevery day, and being on scholarship at Pepperdine, she feels like adifferent person, since the entire life she had known since she was achild is no more. Plaintiff has experienced disorientation in her lifepath.”

Layana White responded to the same interrogatory as follows:

“Plaintiff’s injuries include, but are not limited to the following:Plaintiff has experienced anxiety, panic attacks, severe depression andpost-traumatic stress disorder (“PTSD”). Plaintiff has also experienced

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insomnia, high blood pressure, and intense headaches.

Plaintiff also feels stress due to the fact that she feels as if she is not thesame person she used to be. Plaintiff is depressed over the fact that sheis now living a completely different life than she used to live. Plaintifffeels she has lost a central part of her identity, and is often at a loss forwhat to do during the day, since the entire life she had known since,including playing basketball since she was six years old, is no more.

Due to her anxiety, panic attacks, depression and PTSD, Plaintiffcannot watch, play, or speak about basketball. If Plaintiff tries to, heranxiety, panic attacks, depression and PTSD are triggered. It isextremely difficult for Plaintiff to get out of bed in the mornings and tofeel motivated throughout the day.”

These interrogatory responses, served after the fact discovery cut-off date,

were the first time Plaintiffs specified any type of emotional distress that might be

considered beyond the norm in this type of harassment case.

8. Even so, despite the responses quoted above, Plaintiffs’ own deposition

testimony and/or interrogatory responses establish that they never received

counseling or other medical treatment that would support their claims. Layana

White claimed she tried to get some at Kaiser but they did not have therapists

specializing in LGBT issues. She also claims she was prescribed an anti-depressant

but she only took one pill one time. Haley Videckis stated she saw Dr. Mitchell

Halper, a psychiatrist in Illinois for the first time in May, 2014 and that she speaks

to him on the phone once a month and gets her prescription of Valium refilled,

which prescription is picked up and paid for by her mother. Dr. Halper is the doctor

who, in May 2014, diagnosed Videckis with ADD and prescribed her medication for

that condition while a student at Pepperdine.

9. Sometime around the middle of March, 2017, my client informed me

that he had learned that a psychologist, Anthony Reading, had been retained by

Plaintiffs in this action. At that time, we realized that Plaintiffs would not only be

vigorously pursuing a claim that, up until mid-February, and after the discovery cut-

off, appeared insignificant due to the lack of any substantiating documentation

despite several requests for supporting documents, but would be attempting to

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support the claims with medical professionals. As a result, my client and I decided

we too needed to retain an expert to address these issues.

10. Upon retaining and speaking to our expert, Mark Levy, M.D., on

March 23, 2017, he recommended that he and his colleague conduct a mental

examination and standard psychological testing of Plaintiffs. I then contacted

Plaintiffs’ counsel, Jayesh Patel, on March 24, 2017, to inquire if he would stipulate

to allowing a mental examination of his clients. He stated he would consider it but

that he was not inclined to grant a request if the testing was going to be prolonged

testing that lasted for three or four days. I told him I did not expect that degree of

testing but I would find out how long it would take and get back to him. On March

27, 2017, I let him know the testing portion would last only about 3.5 hours for each

of his clients. On March 28, 2017, he wrote to me and stated, “I am checking on the

Psych expert testing questions. I suspect we will be fine, but I’m still awaiting a

response.”

11. After further inquiry from me and after providing him with the specific

tests to be taken, on March 29, 2017, Mr. Patel wrote: “One final question: who is

the person you contemplate doing the examination? I am waiting to hear back from

[Dr.]Reading on the tests but do not anticipate any issue on that front.” I provided

the information to him, but on March 30, 2017, Mr. Patel sent me an e-mail

informing me that he could not agree to the examination. He stated: “We have

thought it through and determined that we cannot agree to allowing this discovery at

this point in time, given the discovery cut-off and the clarity of claims asserted in

the case… Finally, at least one of the proposed tests is problematic for us,

regardless of our overarching position. It looks like the court will need to resolve

both your issue and ours on the remaining points of discovery.”

12. Despite discussing the merits of the motion with Mr. Patel at least two

times since this last correspondence, we have not been able to reach agreement other

than a stipulation that he does not object to the timing of the filing of the motion to

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compel the examination, only that he thinks we should have sought the discovery

sooner.

13. The parties stipulated that expert designations would occur on Tuesday,

April 4, 2017 with depositions to occur shortly thereafter.

I declare under penalty of perjury under the laws of United States of America

that the foregoing is true and correct and that this declaration was executed on

April 6, 2017.

/s/ Paula Tripp VictorPaula Tripp Victor

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EXHIBIT B17


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1601523.1PEP01-38:1601523_1.docx:4-7-17 - 1 -

DECLARATION OF MARK I. LEVY, M.D. IN SUPPORT OF MOTION TO COMPEL MENTAL EXAMINATION OFPLAINTIFFS

PAULA TRIPP VICTOR (SBN 113050)[email protected]

PETER B. RUSTIN (SBN 181734)[email protected]

ANDERSON MCPHARLIN & CONNERS LLP707 Wilshire Boulevard, Suite 4000Los Angeles, California 90017 USATelephone: (213) 688-0080Facsimile: (213) 622-7594

Attorneys for Defendant PEPPERDINE UNIVERSITY


CENTRAL DISTRICT OF CALIFORNIA


Plaintiffs,

vs.

PEPPERDINE UNIVERSITY, acorporation doing business in California,

Defendant.

Case No. 2:15-CV-00298-DDP (JCx)

DECLARATION OF MARK I. LEVY,M.D. IN SUPPORT OF MOTION TOCOMPEL MENTAL EXAMINATIONOF PLAINTIFFS

Trial Date: May 23, 2017

I, Mark I. Levy, M.D., do hereby declare as follows:

1. I have been licensed as a physician and surgeon by the State of California

since 1972 and am Board Certified as a Diplomate of the National Board of Medical

Examiners (1971); Diplomate of the American Board of Psychiatry and Neurology in

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1601523.1PEP01-38:1601523_1.docx:4-7-17 - 2 -

Psychiatry (1981); and, Diplomate of the American Board of Psychiatry and Neurology

with Added Qualification in Forensic Psychiatry (1999, 2009). I hold a designation as a

Distinguished Life Fellow with the American Psychiatric Association and I am an

Assistant Clinical Professor of Psychiatry at the University of California, San Francisco

where I teach in the forensic psychiatry fellowship program.

2. I have been retained by defense counsel for Pepperdine University to

review the records and files pertaining to this matter, to examine the Plaintiffs Haley

Videckis and Layana White, and to thereafter render opinions as to the existence,

nature, extent and causation of the damages claimed by the Plaintiffs in connection with

the issues giving rise to this litigation.

3. In the performance of my duties in this case, I intend to read the operative

complaint, various medical records pertaining to the Plaintiffs, their responses to

interrogatories, and will be reviewing depositions of the Plaintiffs and any other

depositions that may prove to be important. If provided, I will also review any reports

and/or transcripts from Plaintiffs’ medical expert as well.

4. Plaintiffs’ Psychological Complaints: It is my understanding that

Plaintiffs claim to have experienced symptoms of severe emotional distress as a result

of alleged discrimination and harassment. Furthermore, I understand that Plaintiff

Videckis claims her emotional distress is manifested through numerous psycho-

physiological symptoms and disorders including the following: anxiety, often

accompanied by physical shaking and that the anxiety and depression is worsening. I

understand Plaintiff White contends her distress is manifested through anxiety, panic

attacks, severe depression and PTSD, and that she has experienced insomnia, high-

blood pressure, and intense headaches.

5. Given Plaintiffs’ claims, in order to fully and fairly evaluate the Plaintiffs’

alleged mental conditions and damages, I recommend that they each undergo standard

forensic psychiatric diagnostic examinations. The examinations of each Plaintiff will be

broken into two-parts: (1) written psychological tests that will be administered, scored19


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and interpreted by forensic neuropsychologist Ronald H. Roberts, Ph.D., and (2) a

question/answer psychiatric interview examination administered by me.

6. The duration and conditions of the examination: Given the complexity

of the psycho-physiological symptoms alleged by the Plaintiffs in this case, it is my

professional opinion that the psychiatric interview portion of the IME examination of

each Plaintiff shall require approximately 4.0 to 6.0 hours to complete, including

appropriate rest breaks, the actual duration of which will depending upon each of the

examinees individual narrative style. In order to evaluate each Plaintiff’s current

psycho-physiological claims, it is essential to evaluate their condition prior to the

alleged events. Therefore the evaluation must include the taking of a complete personal

history (including family, social, and environmental history), work/educational history,

a medical and psychiatric history including substance abuse history, if any, a history of

relationships and traumas, a legal history including any conflicts with the civil

authorities and a detailed account of the events which Plaintiffs claim have caused their

alleged emotional damages. The interview must also include a mental status

examination to evaluate their mood, speech, thought processes, and other mental

functions. The interview will be conducted under standard office conditions.

7. Written testing. In addition to my clinical interview, the examination will

also include psychological testing of the Plaintiff to be performed by a highly

experienced clinical and forensic psychologist and neuropsychologist, Ronald H.

Roberts, Ph.D., who is specifically trained in the administration, scoring and

interpretation of psychological test data derived from both clinical and forensic

populations. The psychological examination will be necessary to assess the

psychological complaints of each plaintiff. The testing will consist of a comprehensive

examination of the Plaintiffs’ psychological symptoms, mental disorders and

personality traits - all of which have a direct bearing upon obtaining accurate

psychiatric diagnoses Plaintiffs as well as facilitating an estimate of the degree of

current functional impairment and/or subjective distress, if any. The utilization of3020


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several tests and methods is the most accurate and widely accepted professional

approach to arriving at reliable and valid inferences from psychological test data

regarding diagnosis, functional impairment and subjective distress.

8. The tests to be administered, scored and analyzed by Dr. Roberts are

common in the industry. They include selective “endorsement tests” including the

Minnesota Multiphasic Personality Inventory – 2 (MMPI-2), the Personality

Assessment Inventory (PAI), and a “projective” test, the Rorschach Inkblot Test scored

using the R-PAS method. This approach is most likely to yield reliable and valid

clinical evidence to be presented to the trier of fact. The duration of the written

psychological testing will take approximately four (4) hours excluding appropriate

breaks; additional time will be required if needed by the examinees to complete their

testing. The written testing needs to be done before the interview examination in order

to achieve the most fair and objective examination of the examinees during their

interview. Based upon my 40 years of experience, it is best to conduct the two portions

of the examination on separate days in order to not unduly tire the examinees and in

order to allow them to produce their best effort in both portions of their psychiatric

IME. This protocol is most likely to produce the most accurate diagnostic information

for the trier of fact.

9. I am, as well as my colleague, Dr. Roberts, is, qualified to perform and

routinely do perform the above described examinations. It is my belief and professional

opinion that a thorough psychological testing assessment and psychiatric examination

of the Plaintiff by Dr. Roberts and me are necessary in this action in order to carefully

arrive at a true and accurate diagnoses of the Plaintiffs’ psychiatric disorder(s), if any,

and to reach conclusions concerning causation, prognosis and recommended treatment.

10. Nothing in the psychiatric examination or psychological testing portion of

the IME shall be protracted, intrusive, unduly burdensome or painful. Although it may

be necessary to ask the plaintiffs questions about issues and events that can be

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I disturbing to recall, I shall use my best clinical expertise to be sensitive to and minimize

any emotional discomfort to the examinee.

I declare under penalty of perjury that allegations and statements in the foregoing

Declaration are true and correct, except as to those matters stated on info ~tion and

belief and as to those matters, I believe them to be true. Executed on April j~ 2017, in

~lnl ~ (rk,) ,California.

~ w~pMark I. Levy, .D., D.L.F.A.P.A.

I601523.IYF,P01-38:tinal declaration of Mark 1,evy.DOCX:4-5-17 - 5 -

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EXHIBIT C23


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2079-1002 / 659929.1Case No. 2:15-CV-00298-DDP (JCx)

DECLARATION OF JAYESH PATEL

JAYESH PATEL, (SBN 132939)[email protected]

JEFFREY J. ZUBER (SBN 220830)[email protected]

ROBERT W. DICKERSON JR. (SBN 89367)[email protected]

ZUBER LAWLER & DEL DUCA LLP777 S. Figueroa Street, 37th FloorLos Angeles, California 90017 USATelephone: (213) 596-5620Facsimile: (213) 596-5621

Attorneys for PlaintiffsHaley Videckis and Layana White


CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION


Plaintiffs,

v.

PEPPERDINE UNIVERSITY, acorporation doing business inCalifornia,

Defendant.

CASE NO. 2:15-CV-00298-DDP (JCx)

DECLARATION OF JAYESHPATEL

I, Jayesh Patel, declare as follows:

1. I am an attorney duly admitted to practice before this Court. I am a

partner with Zuber Lawler & Del Duca LLP, attorneys of record for Plaintiffs Haley

Videckis and Layana White. I have personal knowledge of the facts stated herein,

and if called to testify, I could competently do so.

2. Attached as Exhibit 1 are excerpts from Volume II of the deposition of

Layana White.

3. On April 6, 2017, I caused to be filed a Joint Stipulation to Extend the

Fact Discovery Cut-Off Date and Dates to Disclose Expert Witnesses (“Discovery

Stipulation”) on Thursday, April 6, 2017, requesting an Order from the Court

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2079-1002 / 659929.12 Case No. 2:15-CV-00298-DDP (JCx)

DECLARATION OF JAYESH PATEL

granting an extension of the fact discovery cutoff date as well as dates to disclose

expert witnesses. Attached as Exhibit 2 is the Discovery Stipulation.

4. Prior to causing the Discovery Stipulation to be filed, I negotiated with

Defendant’s counsel, Paula Victor, what discovery would be included in the push-

back of the cutoff date, and what would not.

5. Plaintiffs’ mental examination by Defendant was not included in the

Discovery Stipulation, and therefore not subject to an extended cutoff date.

6. On March 29, 2017, I received an email from Ms. Victor with the name

of the expert she wanted to let examine Plaintiffs. The name of this expert was Dr.

Ronald Roberts. This is the only expert Ms. Victor disclosed when she was asking

permission to examine Plaintiffs. Ms. Victor never asked if Dr. Mark Levy could

examine the Plaintiffs. Attached as Exhibit 3 is an email chain between myself and

Ms. Victor, the top email sent March 29, 2017 at 12:38 pm.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on this 7th day of April, 2017, at Los Angeles, California.

/s/ Jayesh PatelJayesh Patel

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