Motion to Compel - Mental Examination of Plaintiff Jocelyn Maltempi October 21, 2016 (2025)

 
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 CAUSE NO. 15-09508-442JOCELYN MALTEMP! AND § IN THE DISTRICT COURT OFSTEVEN MALTEMPI §VS. § DENTON COUNTY, TEXAS §EDDIE LEASE, INDIVIDUALLY ANDD/B/A LEASE IT CARPET CLEANING § 442ND JUDICIAL DISTRICT DEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’S MOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPITO THE HONORABLE JUDGE OF THIS COURT: COME NOW, Eddie Lease, Individually and d/b/a Lease It Carpet Cleaning, Defendantin the above-styled and numbered cause and files this its Motion to Compel Mental Examinationof Plaintiff Jocelyn Maltempi, pursuant to Texas Rule of Civil Procedure 204, and in supportthereof would respectfully show the following: I BACKGROUND This case involves a motor vehicle accident which occurred on or about April 10, 2015 inThe Colony, Denton County, Texas. See Plaintiff's Original Petition on file with the Court. As aresult of said accident, the Plaintiff is alleging mental and physical injuries. Jd. Specifically, thePlaintiff testified that she sustained a “closed-head injury as a result of the accident. See Exhibit“A”, Maltempi Dep. 22:7-12. On October 10, 2016, Plaintiffs sent the Defendant a demand and produced, for the firsttime, a neuropsychological evaluation conducted by Dr. Kelley D, Beck of Plaintiff JocelynMaltempi on July 9, 2015 and a follow-up evaluation on July 21, 2015. See Exhibit “B” Reportsof Dr. Kelley D. Beck. Plaintiff underwent ten separate tests to examine her abilities, including:Wechsler Adult Intelligence Scale-IV; Trail Making Test; Controlled Oral Word AssociationDEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE [T CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGELTest; Category Fluency; Stroop Color Word Test; Wisconsin Card Sorting Test; CaliforniaVerbal Leaning Test-Il; Wechsler Memory Scale-IV, Logcal Memory subtets; Rey-O ComplexFigure; and Finger Tapping Test. See Exhibit “B”. Dr. Beck’s report indicated that the Plaintiff had persisting executive functioning deficitsthat were mild in severity, and largely limited to generative fluency and aspects of higher-levelattention and organization of visually-demanding stimuli: See Exhibit “B”. Additionally, Dr,Beck diagnosed the Plaintiff with a traumatic brain injury. Jd. Dr, Beck recommended that thePlaintiff initially limit her substitute teaching commitments to several days per week andgradually ease into more full-time commitments if desired; recommended antidepressantmedication if depressive symptoms persisted: recommended a follow-up with neurology asrecommended/needed; recommended that she report to DPS for official legal clearance fordriving in Texas; and recommended additional steps to maximize neurocognitive functioning. Id. In response to the opinions provided by Dr. Beck, Defendant has retained (withoutdesignation) Michelle L. Bengtson, Ph.D., ABPP, as a potential expert on Plaintiffs claimsconcerning neuropsychology. See Exhibit “C”, Curriculum Vitae of Michelle L, Bengtson,Ph.D., ABPP. An independent examination will allow Dr. Bengtson to evaluate the Plaintiff’scurrent cognitive strengths and weaknesses and prognoses. Jd. The Plaintiff is claiming that she sustained a “closed-head injury as a result of theaccident”. See Exhibit “A”, Maltempi Dep. 22:7-12. The Plaintiff also alleges that she sustaineda concussion. Jd. at 26:21- 28:15. Additionally, the Plaintiff is claiming that after the accident,she has had difficulty with organizing, focusing, and communicating. /d. Because the Plaintiff is claiming a traumatic brain injury and alleged residual effectsfollowing the incident, the Defendant moves the Court to require and order Plaintiff JocelynDEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPL PAGE2Maltempi to submit herself for mental examination by Dr. Bengtson, and to allow Dr, Bengtsonto conduct tests and complete examinations that she feels are necessary to render a reportconcerning the Plaintiffs claims in this lawsuit. This request is not being made by Defendant toharass Plaintiff, but to assess the opinions offered by Dr. Beck, and to determine the extent andseverity of Plaintiff's injuries, if any. IL. ARGUMENTS AND AUTHORITYA. Mental Examination of Plaintiff Jocelyn Maltempi: Rule 204 of the Texas Rules of Civil Procedure set forth the requirements of compellinga physical or mental examination of a party. The Supreme Court of Texas, in interpreting Rule204.1's predecessor, Rule 167a, held that before a trial court may order a party to submit to amental examination, the movant must show (1) that the party's mental condition is in controversyand (2) that there is good cause for a compulsory mental examination. Coates v. Whittington, 758S.W.2d 749, 751 (Tex. 1988) (interpreting Tex. R. Civ. Proc, 167a(a) (Vernon 1976, repealed1998, now Tex. R. Civ. Proc. 204.1)); see also In re Doe, 22 S.W.3d 601, 605 (Tex. App.—Austin 2000, orig. proceeding), If the party to be examined has designated a psychologist totestify as an expert, then the party moving for the examination must meet only the “good cause”element of Rule 204.1(c). Coates, 758 S.W.2d at 751. Good cause requires a balancing of the competing interests of the party's right of privacyand the movant's right to a fair trial. Coates, 758 §.W.2d at 753. This requirement is met onlywhen the movant satisfies the following three elements: (1) the examination must be relevant toissues that are genuinely in controversy in the case; (2) there must be a reasonable nexus betweenthe condition in controversy and the examination sought; and (3) there must be no less intrusivemeans to obtaining the desired information than through a compelled examination. Id.DEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGE 3In the present case, Plaintiff has treated with a neuropsychologist. See Exhibit B.Therefore, the Defendant must show only “good cause” for the examination. 1, The Requested Examination Is Relevant And Will Lead to Relevant Evidence. Plaintiff seeks damages for past and future medical expenses and mental care expenses,past and future mental anguish and pain and suffering. See Plaintiffs Original Petition on filewith the Court. Plaintiff also seeks compensatory damages against the Defendant. /d. Plaintiffhas received a neuropsychological examination by Dr. Beck. See Exhibit “B’*. The Plaintiff alsoclaims that she sustained a “closed-head injury as a result of the accident”. See Exhibit “A”,Maltempi Dep. 22:7-12. The Plaintiff further alleges that she sustained a concussion and haddifficulty focusing, communicating and organizing after the accident. Id, at 26:21- 28:15 Due to these allegations and issues, the requested examination by Dr. Bengtson isrelevant to this matter. An independent examination by Dr. Bengtson will allow Defendant tofully evaluate Plaintiff's claims regarding the nature and extent of her alleged injuries, the basesfor her claimed injuries, and the likelihood that she will suffer these alleged injuries in the future, 2, A Reasonable Nexus Exists Between Plaintiff's Mental Conditions And The Requested Examination. Plaintiff has treated with Dr. Beck, a neuropsychologist, as a result of the underlyingcollision, Dr. Beck has offered opinions regarding Plaintiff's diagnoses, ability to continueworking, and future medical conditions. See Exhibit “B”. The requested examination would besimilar to that administered by Dr. Beck, and would address the same mental impairments asalleged by the Plaintiff. Because the mental examination is intended to explore Plaintiffsallegations of mental anguish and cognitive impairment as they relate to the underlying incident,a reasonable nexus exists between her mental condition and the examination sought,DEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGE 43. Defendants Cannot Obtain The Desired Information Through Less Intrusive Means. Finally, the information that Defendant would obtain from an independent examinationperformed by Dr. Bengtson is not likely to be acquired by other means. Deposing Dr, Beckwould only allow Dr. Bengtson to base her opinions on the information obtained in thedeposition. Further, Plaintiff's deposition is insufficient for Dr. Bengtson to provide a fullneuropsychological evaluation. To make her own analysis as to the nature and extent ofPlaintiff's injuries, if any, and effectively challenge the opinions of Dr. Beck (who has had thebenefit of an examination), Dr. Bengtson needs to conduct an independent evaluation. The evaluation is within the standard of care for people with traumatic brain injuries andis the only way to determine the current cognitive strengths and weaknesses of the Plaintiff.Defendant will be unable to fully and effectively defend and evaluate the claims against himwithout this examination. The reasoning of the court of appeals in Sherwood is directly on point: “The minor has already been examined by her expert witnesses. Unless relators are allowed the requested relief, their expert's analysis will be limited to a review of the minor's records and the testimony of the minor's psychologists. Relators’ expert would be precluded from examining matters not covered by the minor's psychologists' examinations and would be precluded from making his own observations. The trial court's action severely restricts relators' opportunity to discover facts that may contradict the opinions of the minor's expert witnesses. In turn, such restriction severely limits relators' ability to contest the minor's claim for mental injury damages.” Sherwood Lane Assocs. v. O'Neill, 782 S.W.2d 942, 944-45 (Tex. App.—Houston [IstDist.] 1990, orig. proceeding) (citations omitted). 4. Plaintiff Cannot Show Any “Special Circumstances” Which Would Allow For Videotaped Examination. Plaintiff has additionally requested that any mental examination of Plaintiff bevideotaped or audiotaped. However, the Texas Rules of Civil Procedure do not mandate that theDEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPT PAGE 5court require mental examinations to be videotaped and audiotaped, The Rules allow a party todiscover the general substance of a testing expert's mental impressions and opinions, and a briefsummary of the bases for the opinions. Tex. R. Civ. Proc. 194.2(£)(3), Further, the Rules allow aparty to obtain a deposition from an expert on the subject matter on which the expert is expectedto testify. Tex. R. Civ. Proc. 195.4. However, the Rules of Civil Procedure do not mandate that atrial court allow the party seeking discovery to videotape the process the opposing party's expertgoes through in forming opinions. In re Commitment of Shoemaker, 2015 Lexis 4644, No. 09-14-00239-CV, *4 (Tex, App.—Beaumont Dec. 29, 2014, pet. denied). While Texas case law on the subject is sparse, the similar Federal Rule of Civil Procedurepresents a clearer consensus. Fed. R. Civ. Proc, 35. Most federal courts analyze a request for arecording device the same way they evaluate whether to permit the presence of an attorneyduring a Rule 35 examination. Ornelas v. Southern Tire Mart, LLC, 292 F.R.D, 388 (S. D. Tex.2013), citing Calderon y, Reederei Claus-Peter Offen GmbH & Co., 258 F.R.D. 523, 529 (8.D.Fla, 2009); In re Falcon Workover, No. Civ.A, 972628, 1999 Lexis 14634, at *1 (E.D. La. Sept.15, 1999) ("[T]aping the psychiatric examination would be tantamount to allowing counsel forthe claimant to be present in the room."). Although there have been courts which have permittedthe presence of a third party at a Rule 35 examination, the greater weight of federal authorityfavors the exclusion of the plaintiff's attorney from such an exam absent special circumstances.Ornelas, 292 F.R.D. at 395-96. Because "[tJhe introduction of a human or mechanicalpresence—whether a lawyer, a stenographer, a tape recorder, or other instrumentality—changesthe nature of the proceeding," the court must be convinced that a protective order is necessary.Id., ciling Tirado vy, Erosa, 158 F.R.D. 294, 299 (S.D.N.Y. 1994), Thus, in the same way third-party observations are disfavored, so too are the presence of recording devices, Newman v. SanDEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGE 6Joaquin Delta Cmty. Coll. Dist., 272 F.R.D. 505, 514 (E.D. Cal. 2011); Holland v. U.S., 182F.R.D. 493, 495 (D.S.C. 1998), and therefore the party seeking to record or videotape anexamination bears the burden of showing a "factual basis" amounting to good cause for therequest. Ornelas, 292 F.R.D, at 395-96, citing Maldonado v. Union Pac. R.R. Ca., No. 09-1187-EFM, 2011 Lexis 23507, at *3 n.15 (D. Kan. Mar. 8, 2011); Calderon, 258 F.R.D. at 529. Inother words, "special circumstances" for the request must be shown, as fairness and medicalintegrity considerations underlie the determination. Ornelas, 292 F.R.D, at 395.96, citingNewman, 272 F.R.D. at 514-15; Hirschheimer v. Associated Metals & Minerals Corp., 1995Lexis 18378, at *4 (S.D.N.Y. Dec, 12, 1995). Just as in Ornelas, “[njone of the ‘special circumstances’ that other courts have deemedsufficient for requiring a video or audio recording are seemingly present in this case,” whichcould include: a lengthy history of serious mental issues creating “serious doubts” as to whetherplaintiff was capable of providing “any assistance” to his attorney in understanding what tookplace during the examination, Schaeffer v. Sequoyah Trading & Transp., 273 F.R.D. 662, 664(D. Kan. 2011); a non-English speaking plaintiff with third-grade education and impairedmemory/cognitive abilities “impairing his ability to communicate to counsel what occurredduring the examination, Maldonado, 2011 Lexis 23507, at *3; a traumatized child-plaintiff’sfacial expressions, body language, movements and behavioral enactments communicatedmedically significant information which could be captured on videotape, T.B. ex rei. G.B. v.Chico Unified School Dist., 2009 Lexis 32653, at *2; recording necessary due to evidence thatexamining physician was abusive and had “predilection for ignoring court orders imposing limitsupon his examinations” and had been disqualified several times previously, Greenhorn v.Marriott Intern., Inc., 216 F.R.D. 649, 654 (D. Kan, 2003).DEFENDANT EDDIE LEASE, [INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGE 7There is no compelling reason or “special circumstances” unique to Plaintiff’s situationwhich would justify a court order requiring that the examination by Dr. Bengtson be conductedunder videotape recording. Additionally, Plaintiffs own treating physician, Dr. Beck, aneuropsychologist, did not record her examination of Plaintiff via video or audio. Therefore,Defendants would request that the court deny Plaintiff's request that Dr. Bengtson’s examinationbe conducted under videotaped conditions. Il. CONCLUSION WHEREFORE, premises considered, Defendant prays that the above and foregoingMotion for Mental Examination of Plaintiff Jocelyn Maltempi be in all things granted; that theCourt order Plaintiff to submit to mental examination by Michelle L. Bengtson, Ph.D., ABPP,and to allow Dr. Bengtson to conduct tests and complete examinations she feels necessary torender a report concerning Plaintiff's claims in this lawsuit without the presence of a third-partyobserver or videotape recording device, and for such other and further relief to which Defendantmay be justly entitled to receive.DEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE [T CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGESRespectfully submitted, WALTERS BALIDO & CRAIN, LLP ) OO \ CARLOS A. BALIDO State Bar No. 01631230 Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, TX 75231 Tel: 214-749-4805 Fax: 214-760-1670 Bi alidoEDocsNotifications@wbclawfirm.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE This is to certify that a true and correct copy of th ‘oregoing instrument was forwardedvia facsimile to Plaintiff's attorney of record on the ‘day of October, 2016.Chip BrookerThe Law Offices of Frank L. Branson, P.C.4514 Cole Avenue, is" FloorDallas, TX 75205214-651-5000 Telephone214-651-5940 Fax Carlos A. Balido ANDEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPIL PAGE 9CERTIFICATE OF CONFERENCE Counsel for Defendants discussed the above-referenced Motion and independentexamination of Plaintiff Jocelyn Maltempi with counsel for Plaintiffs on October 20, 2016.Counsel for Plaintiffs is opposed to allowing the neuropsychological evaluation to last more thanone-day and opposed to allowing the neuropsychological evaluation without a recording. Assuch, said Motion is presented to the Court for determination. Carlos A. Balido \DEFENDANT EDDIE LEASE, INDIVIDUALLY AND D/B/A LEASE IT CARPET CLEANING’SMOTION TO COMPEL MENTAL EXAMINATION OF PLAINTIFF JOCELYN MALTEMPI PAGE 10EXHIBIT APage 1 (Pages 1-4) Page 1 Page 3 CRUSE. NO 15-09508-442 WITNESS INDEX JOCRLYN MALTEMPI and > iy THE DrsvRrer cover Appearances... 02 STEVEN MAGTEMPI, Plaintiff, Stipulations Sy, d DENTON COURTY, TEXAS DDI LGR UPASE, ) JOCELYN D. MALTEMPL Individuatly and ¢/b/a DEASE IT CARRPET CLEANING, ) Examination by Mr. Balido 04 Defendant. ) 44aup gonTerab DrarRIcr Signature and Changes., 46 CHU EURO Ha err cree inane10 Reporter's Certificate... 48 ORAL DEPOSITION oFul lo SOCELYN D, KALTEMPE EXHIBIT INDEX2 SEPTEMBER 23, 2018 1B NO DESCRIPTION PAGE“ OOO IOI EG Co kyr erennen ee 1218 (No exhibits marked) 16 ORAL DEPOSITION OF JOCELYN D, MALTEMPZ, B 14 ivproduced av a witness at the instance of Defendants, and 15 Ieduly aworn, wae taken in the abovecstyled and -numbared 16 19cause on the 13th day of September, 2026, from 10:20 720 am bo 12:13 @.n., before cheryi K, Perlieh, certifiod 192 Shorthand Reporter in and for the state of Texas, 20 reported by machine shorthand, at the law offices of 21 223 chip Brooker, The Law Offices of Frank l. Branson, P.C., 2324 losated at 4514 cole Avenue, 18th Floor, Dallas, Texas 2425 78205 pursuant to the Toxas Rules of Civil Procedure. 25 Page 2 Page 4 APPEARANCES JOCELYN D. MALTEMPI, having been duly sworn, testified as follows: FOR PLAINTIFFS; EXAMINATION BY MR. BALIDO; MR. CHIP BROOKER THE LAW OFFICES OF FRANK L. BRANSON Q, Would you state your full name for the jury, 4514 Cole Avenue ma'am, 18th Floor A, Jocelyn Diann Maltempi, Dallas, Texas 75205 1 214,522,0200 Q. And Ms. Maltempi, J introduced myselfto you ebrooker@flranson.com earlier, I represent the Defendants in this case. And 8 Tin going to be asking you some questions about the 9 10 i) FOR DEFENDANTS: Hh claim that you have made and, obviously, the lawsuit ih MR, CARLOS BALIDO 12 that we're involved in now, Do you understand who Tam WALTERS, BALIDO & CRAIN, LLP R 10449 North Central Expressway 13 and who I represent? Suite 1500 14 A. Yes, 13 Dallas, Texas 75231 214.749.4805 15 Q. Allright, And you have -- you're very soft 14 carlos balido@weclawtinm,com 16 spoken, which is okay, but this young lady over here has 15 6 7 to be able to type down everything that’s seid in this ALSO PRESENT; 1g room today, So I'm going to ask you as much as you can 19 to speak up and to continue to give a verbal, out Lond Steven Maltempi 18 20 response as opposed to nodding your head or saying 19 2 uh-huh or huh-uh. Does that make sense? 20 22 A, Yes, it does, 21 22 23 Q. Okay, You're doing a great job of it so far. 23 2a Tf you will continue to give me the courtesy of waiting 24 25 25 until [ finish my question before you give your answer, PERLICH REPORTING SERVICES 469.939.5606Page 6 (Pages 21-24) Page 21 Page 23 send over as weil, Q. Had you ever made any complaints to any doctor IR. BALIDO; Appreciate it. hat treated you that you suffered from depression, a A, Il goes aeross right here (indicating,) mood disorder or any other psychological condition? Q, And if you don't mind, can I come across and A, None, huhu, look? Chip, is that all right? Q, And this is a question T ask all people so MR. BROOKER: Absolutely. Want to scoot don't think that I'm singling you out. back a little bit? A. Okay, A. Tt goes across right here and it went back -- Q. Prior to April the 10th, 2015, kad you ever had Q. Okay. any drug or alcohol counseling?10 A. -- and back down into my head. 10 A. None.n Q. Okay. Okay. Thank you, Other than that ul Q. Had you ever had any problems with drugs or2 scarring that you just showed me, do you have any other 12 alcoho! before April the 10th, 2015?13 scarring fram the aceident? 3 A. No, not at all,14 A. Yes, 14 Q. I want to talk to you about after5 Q. And where else do you have scarring? 15 A. Okay.16 A. Up here, there's several spots. 16 Q. -- April of 2015, After the accident, I want"7 Q, Okay, 7 to talk about new injuries, I don't want to talk aboutig A, Right through here, 1B any of the injuries we've just talked about that you19 Q. On the ie? 19 suffered in this accident,20 A, Right through kere, Left forehead, The 20 A. Uh-huh.a hairline, you can see the discoloration, 21 Q. I want to talk to you about anything that may22 Q All right, ma'am, Thank you. 22 have happened that's new. There may not be any, but I23 A Right here (indicating, 23 want to ask you those questions. So after April 10th,24 Q Any other scarring? 4 2015, have you had any new and distinet injury that,25 A, The one left from right there on my elbow, on 25 required medical attention? Page 22 Page 24 the left elbow. A, Yes. Q, Okay, Any other scarring? Q. Tell me about that. A, There's some on my hands where I had large A, The pain that's in my legs. scabs on the knuckles and the wrists on both hands. Q. And what is that from? Q. Okay. Any others? MR. BROOKER: He's talking -- what he's A. Not that T can -~ asking -- he's asking you about anything (hat you don't Q. Allright. You mentioned a term, closed-head attribute to the accident. injury. Do you remember telling me about that? THE WITNESS: Oh, okay. A. Yes, Q. Yeah, iet me make that distinction, Let me10 Q. And is that something that a doctor has told 10 make that distinetion, So prior-- I'm sorry, strikeuM you, you suffered a closed-head injury? i that.12 A. Yes. 12 A. That's okay.3 Q. Okay. Priot to this accident on April 13 Q. After April the 10th, 2015, have you had any14 the 10th, 2015, had you ever had any psychological or ia new injury that required medical attention that is not1s psychiatric treatment? 1s in any way associated with the accident you had?16 A. None, 16 A. None.W Q. Were you taking any medication at the time of 17 Q. Have you been hospitalized for any new18 the accident? 18 incident, accident, injury, health concern afier April19 A. Only sinus, like allergy medicine, 9 the 10th, 2015 that you don’t associate with the20 Q. Okay. 20 cident of April the 10th of 2015?2 A. And blood pressure and cholesterol medicine. 2 A. No,22 Q. Prior to April the 10th, 2015, had you ever 22 Q. Now, let's tall about the issues with the legs.23 ‘been prescribed any medication for any psychiatric or 23 Tell me about that,24 psychological issue? 24 A. [have ~ in the right leg, there is sharp25 A, No, hah-vh, 25 pain, In the front and in the back of my leg, on the PERLICH REPORTING SERVICES 469.939.5606Page 7 (Pages 25-28) Page 25 Page 27 right leg, and from my knee down, there's tingling or -- therapy, they would take care of things, they would try on the left leg, it's all day long, it's from the bottom and help me do stuff. And there were times I felt sick of my foot all the way up my leg. It's a tingling or just from doing certain maneuvers or certain, you know, just, I guess, a sensation of crawling, you know, things things for them to help me in my first, I guess, week of crawling on me. that outpatient therapy. Q. Have the doctors told you what may be causing Q, Allright. And I don't want to put words in that problem? your mouth -- A. Lhad seen a doctor here and they talked about A. Okay. ita little bit, 1 saw my general doctor just a few Q because obyiously you're the one that’s10 weeks ago and we talked about it, but they didn't say wo experiencing this situation. What I want to know -- you.qi exactly what -- that it might be causing it. i told me as an administrative assistant, you have trouble12 Q. Did they order any type of tests to try to 2 getting the right word when you're on phone calls,13 figure out what was going on? 13 A, Uh-huh,14 The doctor here did, 14 Q. Do you recall telling me that?15 Who is the doctor that you saw here? 1S A. Yes,16 Dr, Cruz, 16 Q. Okay. And you attribute that to the accident,V7 Erwin Cruz? 17 do you not?18 I think so, 18 A. Ido.19 All right. And how did you find out about 19 Q. Okay, Not a problem you had before?20 Erwin Cruz? 20 A. None.2 ‘A. We were looking up ~ because we bad to 2 Q. Allright, Other than that issue currently,22 continue -- when we lived here, we had to find doctors 22 you find yourself having any other problems, and I'm23 to foilow up with for -- after, you know, being 23 going to call them mental, anything that. you relate to24 discharged from therapy, 24 how you speak, how you interact with folks, how you25 Q, And yon found Erwin Cruz on your own’? 25 carry yourself that you believe you didn't have before Page 26 Page 28 A, We -- I don’t know how to say it, I don't the accident that now you have? know. A, There were -- having been in charge ofa Q. Well, I'm just asking you how you find out household with four children, organizing and taking care about Erwin Cruz? of everything that deals with a household with that many A, It's been awhile so. children and their activities and everything, that was Q. Understood. Any other doctors here in Dallas easily ~ there was shopping to do, there was cleaning, that you have seen for these issues with your legs? there was carpooling and all thet and that was fine, A. [don't think -- no, Butafterwards, I haven't been able to make up, you Q. Allright. know, a menu, plan a menu out for the week or just10 A. No. 10 follow through on some organization-type things forn Q. And we'll talk a little bit more about the i that, Foeus, { know focusing is hard for me. Planning12, folks thar you're treating with now in a few minutes, 12 out takes some time, Proper, you know, communicating,3 A, Okay. 13 Q. Any other issues that you can think of that are14 Q. What 1 want :o get to is the closed-head injury 14 different now than they were before the accident?18 issue, Which doctor has told you ~ well, first of all, 15 A, No,16 let me ask you this; Are you having any problems from 16 Q, Allright. And I noticed you walked in here7 this closed-head injury that you described? VW today. You don't have any -- you don't need any18 A, [don't -- don't know if it's from that or 18 assistance walking, do you?19 from other, you know, other issues that were determined 19 No, I don't need assistance walking,20 by the doctor. 20 Do you drive your own vehicle?2 Q, Tell me what you mean by that, other issues 2 I do now.22 that were determined by the doctor. 2 Do you drive to and from work?23 A. Being at therapy and things, you know, they've 23 Ido.24 said I've had concussion and contusions and, I guess, 24 ‘Are you able to go shop for groceries?28 the whiplash stuff, you know. So even doing things at 25 Most of the time, PERLICH REPORTING SERVICES 469.939.5606EXHIBIT BQ “" Institute for Rehabilitation at Frisca Outpatient Services 2980 Legacy Drive Frisco, Texas 75034 489) 834-8100 NEUROPSYCHOLOGICAL EVALUATION REPORTName: MALTEMPI, Jocelyo Gender: Female Accti#: 292013775Date of Testing: 07/09/2015 Education: 16 yrs | Ape: 53 _[ DOB: 5/15/1962Date of Report: 07/20/2015 Referral Source: Dayid Lo, M.D,Technician: wa Licensed Psychologist: Kelley D. Beck, Ph.D.‘Technician Time: n/a Professionai Times 9 Hours - Licensed ProfessionalReason for Referral: Patient was referred for a neuropsychological evaluation to docurnent the nature and extent of any presenting neurocognitive deficits and fo assist in evaluating readiness for returning to work following a traumatic brain injury due to a pedestrian/motor vehicle accident.Procedures: L. Review of available records 2. Clinical interview with the patient 3, Wechsler Adult Intelligence Scale-IV (WAIS-IV) 4, Trail Making Test 5, Controlled Oral Word Association Test 6, Category Fluency 7, Stroop Color Word Test 8. Wisconsin Card Sorting Test 9. California Verbal Learning Test-II (CVLT-ID) 10. Weehsler Memory Scale-IV, Logical Memory subtests 11, Rey-O Complex Figure 12, Finger Tapping Test 13, Patient Health Questionnaire (PHQ-9)Informed Consent: Potential risks and benefits, limits of confidentiality, and test pracedures werediscussed, Following the discussion, the patient apreed to complete the evaluation. AT OL Pe Reelae LES A ee ALT LaeMs. Maltempi is a 53-year-old, right-handed female who was admitted to Medical Center Plano on April 10, 2015,after being struck as she was crossing the road, Patient was struck by an automobile and was positive for loss ofconsciousness. Glasgow Coma Scale score at the time of admission to the acute care hospital was 13. Patient wesnoted to have a smafl right frontal hemorrhage/shear, as well as a small left frontal contusion with subarachnoidhemorrhage. In addition, she had multiple facial fractures and skull fracture involving the left frontal sinus, right-sided orbital roof, left cribriform plate, bilateral nasal bone fracture, with some minimal displacement, Patient alsohad a significant right-sided ear laceration, which required tepair by ora) maxillofacial surgery. Other issues includea right-sided sacral fracture, which was non-operative. Ms. Maltempi was admitted from Medical Center Plano toBaylor Institute for Rehabilitation at Frisco for acute rehabilitation on 4/16/2015, discharged home on 4/23/2015,and then transitioned to outpatient services on 4/30/2015, Patient was initially seen by all therapy disciplines, andwas discharged from outpatient services es of 6/19/2015, BAYLOR INSTITUTE, Fo) RR REHABILITATION ‘EXAS NEUROPSYCHOLOGY AND REJIABILTTATION PSYCHOLOGY SERVICES Patient Name: MALTEMPI, Jocelyn Date of Birth: S/1S/1962 Acet Number: 292013775Page 1 ofS 000165ae Ms. Maltempi stated thal she has continued to progress with recovery and therapies over the past few months, She had a MRI of the brain in May that was reportedly unremarkable and an EEG the first week of June that reportedly showed no seizure activity (results not available for review at the time of this evaluation). Regarding neurocognitive status, patient denied any significant ongoing cognitive difficulties apart from variability in concentration at times, She stated that the word-finding difficulties she noticed following the accident had essentially resolved. Patient continues to report some past-concussive symptomatology including increased sensitivity to loud sounds and light, headache pain, irritable mood, and sensation of increased pressure around her head (described as a “vice grip”). However, these symptoms have been improving. She denied any residual yertigo/dizziness. Patient also continues to experience increased fatigue. All other physical injuries have reportedly also been healing, including the facial fractures, pelvic/sacra} fracture, and healing of the ear laceration (with residual endemess), Regarding activities of daily living, Ms, Maltempi stated that she has resumed iridependent management of her medications, financial management, as well a3 some cooking and all of her basic activities of daily living. Patient reported that she has not yet beer coleased for return to work by her neurologist, and that she was uncertain aboutdriving as she continues to take Keppra and needs to discuss further with her neurologist. Past medicaYsurgical history is significant for hypertension, hyperlipidemia, and allergies per records. Current medications include Keppra, Lisinopril, simvastatin, Singulair, and Flonase. Regarding substance use, the patient dented use of alcohol, tobacco products, or illicit substances. Patient has no prior psychiatric history apart from seeing a counselor briefly for family support after the death of her son. Regarding present Functioning, Ms, Maltempi described some difficulty with sleep due to facial/ear pain, and she has also noted a decrease in energy fevel as described above. She denied any issues with appetite. Regarding brief psychosocial history, Ms. Maltempi has been married for 33 years to her husband. She is from Louisiana originally, but moved recently from Keller to The Colony with her husband. Patient and her husband had four children, though one of their sons passed away two years ago at the age of 16 from a brain tumor. They have a son in Virginia, a daughter in Baton Rouge, LA, and their youngest daughter lives tocally and is attending college in Fort Worth, Regarding educattonal/vocational history, Ms. Maltempi graduated with a business degree from Louisiana Tech University. She denied any history of developmentaVleaming difficulties, Patient stated that she also assisted her husband in completing his master's and doctoral degrees in adolescent faith development. Ms, Maltempi was most recently working as a awbstitute teacher and had just received approval to begin substituting when involved in the accident {on her first day of substituting for a new district). Patient expressed that she would like to be able to return to some substitute teach ng as an option, though she may also explore ather altematives that would allow her to work from home. PeuCOlLS io AS ea ae iat AA Ms, Maltempi completed testing at Baylor Institute for Rehabilitation in Frisca, History was provided by the patient, along with available medical records including the patient's inpatient rehabilitation admission, and this patient is known to me from her inpatient stay. Overall, the patient's appearance was cunsistent with her stated age, She was alert, attentive, and appropriately engaged throughout the session, She ambulated independently, no difficulties with gait were observed, and there were no obvious motor symptoms apparent, Hearing and vision were adequate to perceive test stimufi, Expressive speech was within normal limits for rate, rhythm, articulation, and prosody. No paraphasic arrors were observed, Auditory comprehension was adequate for completion of tasks and BAYLOR INSTITUTE FOR REHABILITATION , NEUROPSYCHOLOGY AND REHABILITATION PSYCHOLOGY SERVICES Patient Name; MALTEMPI, Jocelyn Date of Birth: 4/15/1962 Page 2 of5 Acct Number; 292013775 000166wen one -- for conversational purposes, Thought processes were logical and goal-directed. Social pragmatics were intact. Mood was generally euthymic with affect that appeared slightly restricted, though congruent with meod/conversation topics. Insight into current needs/ti tations appeared quite good. There was no indication of perceptual disturbances ar delusional ideation. Motivation to complete the evaluation appeared strong, with both stand alone and embedded measures of effort within normal limits. 0 With e chronological aga of 53 years, Ms. Maltempi achieved a Full Scale IQ of 105 (63” percentile), and her overall performance is considered in the average range. An éstimation of the patient's premorbid intellectual functioning based on word recognition revealed a standard score of )08 (70% percentile), which is also in the average range and is consistent with ourrent measured abilities.Language Functioning Regarding expressive language and fluen 

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