Judge: Andrew E. Cooper, Case: 23CHCV02317, Date: 2024-11-14 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV02317    Hearing Date: November 14, 2024    Dept: F51

MOTIONS TO FOR LEAVE TO CONDUCT ADDITIONAL

INDEPENDENT MEDICAL EXAMINATION

Motions Filed: 8/2/24                                                                                JURY TRIAL: 4/14/25

MOVING PARTY: Defendant Loretta Elaine Dubin (“Defendant”)

RESPONDING PARTY: Plaintiff Frankie P. Adams (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Orders for Plaintiff to submit to the following independent medical examinations (“IMEs”):

1.      An ophthalmological evaluation before Dr. Jerry Sebag, M.D.;

2.      An orthopedic evaluation before Dr. James Kayvanfar, M.D.; and

3.      A psychiatric evaluation before Dr. Manuel Saint Martin, M.D., J.D.

TENTATIVE RULING: The Court orders as follows:

1.      Defendant’s motion for leave to conduct an additional ophthalmological evaluation of Plaintiff is DENIED.

2.      Defendant’s motion for leave to conduct an orthopedic evaluation of Plaintiff is GRANTED. Plaintiff to submit to orthopedic examination with Dr. Kayvanfar and his staff as outlined in Defendant’s demand, on a mutually agreeable date, at 24318 Walnut Street Newhall, CA 91321. The examination may be recorded either by video and/or audio.

3.      Defendant’s motion for leave to conduct a psychological evaluation of Plaintiff is CONTINUED. The parties’ counsel are ordered to meet and further confer either telephonically or in-person within 45 days, to resolve and/or narrow all outstanding issues pertaining to the scope of Plaintiff’s psychological examination. Plaintiff’s counsel is to file a declaration with the Court which confirms compliance with this order or explains why no meaningful meet and confer occurred.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 12/22/22, at the intersection of Tampa Boulevard and Plummer Street, Northridge, California, Defendant caused her vehicle to rear-end Plaintiff’s vehicle. (Compl. p. 5.)

On 8/2/23, Plaintiff filed his complaint, alleging against Defendant the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence. On 11/15/23, Defendant filed her answer.

On 8/2/24, Defendant filed the instant motions for leave to conduct additional IMEs of Plaintiff. On 10/31/24, Plaintiff filed his oppositions. On 11/6/24 and 11/7/24, Defendant filed her replies.

ANALYSIS

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff,” subject to certain guidelines. (Code Civ. Proc. § 2032.220.) A party may obtain discovery by means of a physical or mental examination in an action in which the mental or physical condition of the person to be examined is “in controversy.” (Code Civ. Proc. § 2032.020, subd. (a).) A motion and court order are required to obtain any additional physical or mental examination of a party or party-affiliated individual. (Code Civ. Proc. § 2032.310, subd. (a).)

A.    Meet and Confer

“A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id. at subd. (b).)

Here, Defendant’s counsel attaches a 5/10/24 letter sent to Plaintiff’s counsel regarding the issues raised in the instant motions. (Ex. 2 to Decl. of Ernie G. Figueora.) On 5/14/24, Plaintiff’s counsel responded. (Ibid.) On 6/19/24, Defendant’s counsel sent another email response, but the parties were unable to come to a resolution. (Ibid.) Accordingly, the Court finds that counsel has satisfied the preliminary requirements set forth under Code of Civil Procedure section 2032.310, subdivision (b).

B.     Ophthalmological Examination

Here, in response to “Defendant’s Form Interrogatory no. 6.2, Plaintiff attributes: ‘Traumatic Brain Injury; neck pain; low back pain, mid back pain, bilateral shoulder pain, head pain, dizziness, nausea, insomnia, headaches, ophthalmologic injuries, cognitive injuries, vestibular injuries, depression, anxiety, and other ophthalmological injuries …’ to the subject incident. The injuries are experienced upon a ‘daily’ or ‘chronic’ basis, according to Plaintiff’s response to Defendant’s Form Interrogatory no. 6.3.” (Def.’s Ophth. Mot. 5:19–24, citing Ex. 1 to Figueora Decl., 8:26–11:15.)

On 3/22/24, Plaintiff presented himself for an ophthalmological examination with Dr. Sebag. (Figueora Decl. ¶ 7.) Defendant contends that a second ophthalmological examination is necessary because “Plaintiff obstructed the exam and ultimately walked out of the proceeding prior to its completion, [therefore] Dr. Sebag was not afforded a reasonable opportunity to perform his examination.” (Def.’s Ophth. Mot. 2:12–15.) Defendant argues that both Plaintiff and his observer were uncooperative with Dr. Sebag’s performance of the exam. (Id. at 2:16–24, 6:17–27.)

Plaintiff argues in opposition that “here, despite the objections and responses to the demand expressly indicated that neither an injection of dye nor dilation of the eyes would be permitted, without meeting and conferring regarding the matter nor moving to compel compliance with their demand, moving Defendant instead went forward with the examination - i.e., a voluntary decision made by Defendant and her counsel which waived any attempt to obtain the intrusive and painful tests to which Plaintiff objected.” (Pl.’s Ophth. Opp. 2:19–23.) Plaintiff further argues that “at the examination, Dr. Sebag and an apparent assistant of his attempted to undertake actions which were in violation of the response parameters agreed to and laid out in Plaintiffs written response … accordingly, Plaintiff’s representative at the examination informed Dr. Sebag and his apparent assistant that such actions were not permitted. (Id. at 5:7–11, citing Decl. of Arman Yurman, ¶ 3.)

The Court agrees with Plaintiff that to the extent that Defendant seeks full compliance with its original demand for Plaintiff’s ophthalmological exam, Defendant has failed to move for such relief under Code of Civil Procedure section 2032.250. (Code Civ. Proc. § 2032.250, subd. (a) [“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff’s response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand.”].)

The Court further notes that Defendant fails to address the issue of the subject tests being limited by Plaintiff’s objections and responses to Defendant’s demand. Based on the foregoing, the Court finds that Defendant has failed to show sufficient cause for a second additional ophthalmological examination of Plaintiff. Accordingly, the Court denies Defendant’s motion for leave to conduct such an examination.

C.    Orthopedic Examination

On 6/18/24, Defendant served Plaintiff with a notice of the subject orthopedic examination. (Ex. 3 to Figueroa Decl.) However, “Plaintiff’s counsel has refused to grant the request for an orthopedic medical examination despite attempts to meet and confer. Given the nature and severity of injuries at issue, an orthopedic independent medical examination is needed and very much warranted.” (Figueroa Decl. ¶ 9.)

Defendant argues that “as Plaintiff has placed her [sic] physical condition at-issue in this case, Defendant most certainly is entitled to discover the level of Plaintiff’s physical symptoms prior to the subject incident, the existence of any pre-existing issues, as well as to investigate the nature and extent of Plaintiff’s current and future alleged physical injuries.” (Def.’s Ortho. Mot. 8:3–7.) In opposition, Plaintiff agrees that the orthopedic examination will move forward on 2/28/25, subject to Plaintiff’s limitations. (Pl.’s Ortho. Opp. 2:5–15.)

Defendant argues in reply that “Defendant does not agree with or accede to Plaintiff’s Objections[.] Defendant needs to investigate Plaintiff’s alleged orthopedic injuries to adequately prepare for trial, so her expert is entitled to complete the IME sought herein without obstruction, obfuscation and unwarranted restrictions.” (Def.’s Ortho. Reply 2:22–25.) Defendant further argues that Plaintiff’s proposed restrictions, “seeking to limit the scope of examination stating examination of knees, ankles, elbows, wrists and grip strength off limits, as well as oral history limitations are unreasonable and baseless restrictions designed to limit Defendant’s ability to prepare for trial. These restrictions are especially unwarranted considering Plaintiff’s own expert has performed some of the very same tests to which Plaintiff objects.” (Id. at 4:6–10.)

The Court agrees with Defendant that “Defendant is entitled to complete Plaintiff’s orthopedic examination because Plaintiff has placed multiple, loosely defined, nebulous conditions at-issue by listing ‘other orthopedic injuries’ as among the injuries caused by the subject accident. Accordingly, Defendant most certainly is entitled to discover the level of Plaintiff’s symptoms prior to the subject incident, the existence of any pre-existing issues, as well as to investigate the nature and extent of Plaintiff’s physical condition.” (Id. at 4:20–25.)

While the parties agree that the proposed orthopedic examination may extend to Plaintiff’s neck, low back, and bilateral shoulders, the Court finds that to the extent that Plaintiff’s expert performed additional medical examinations of Plaintiff’s “detailed history, straight leg and wrist testing,” with the expectation that these results will be introduced as evidence at trial, Defendant is entitled to testing of the same. (Decl. of Jason D. Ahdoot ¶ 5.) Based on the foregoing, the Court finds that Defendant has shown sufficient cause for the orthopedic examination of Plaintiff. Accordingly, the Court grants Defendant’s motion for leave to conduct such an examination.

D.    Psychological Examination

On 7/19/24, Defendant served Plaintiff with a notice of the subject psychiatric examination. (Ex. 3 to Figueroa Decl.) However, “Plaintiff’s counsel has refused to grant the request for a psychiatric evaluation despite attempts to meet and confer. Given the nature and severity of injuries at issue, a psychiatric evaluation is needed and very much warranted.” (Figueroa Decl. ¶ 9.)

Plaintiff argues in opposition that Defendant has failed to adequately meet and confer or sufficiently describe the tests to be performed at the examination. (Pl.’s Psych. Opp. 2:27–3:4, citing Code Civ. Proc. § 2032.310, subd. (b) [“A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”].)

The Court notes that here, the parties do not dispute that Plaintiff has placed his mental condition “in controversy” such that a mental examination would be warranted. As Defendant notes in reply, Plaintiff’s “opposition to this Motion does not address the fact that Plaintiff has claimed both physical and mental injuries, which entitles Defendant to the IME sought herein.” (Def.’s Psych. Reply 2:8–10.)

While the Court agrees with Defendant that there is good cause for the psychological examination of Plaintiff, as he has put his psychological condition in controversy, the Court also agrees with Plaintiff that the parties have not sufficiently met and conferred regarding the scope of the examination. Accordingly, the motion is continued, and the parties’ counsel are ordered to meet and further confer either telephonically or in-person within 45 days, to resolve and/or narrow all outstanding issues pertaining to the scope of Plaintiff’s psychological examination. Plaintiff’s counsel is to file a declaration with the Court which confirms compliance with this order or explains why no meaningful meet and confer occurred.

CONCLUSION¿ 

The Court orders as follows:

1.      Defendant’s motion for leave to conduct an additional ophthalmological evaluation of Plaintiff is DENIED.

2.      Defendant’s motion for leave to conduct an orthopedic evaluation of Plaintiff is GRANTED. Plaintiff to submit to orthopedic examination with Dr. Kayvanfar and his staff as outlined in Defendant’s demand, on a mutually agreeable date, at 24318 Walnut Street Newhall, CA 91321. The examination may be recorded either by video and/or audio.

3.      Defendant’s motion for leave to conduct a psychological evaluation of Plaintiff is CONTINUED. The parties’ counsel are ordered to meet and further confer either telephonically or in-person within 45 days, to resolve and/or narrow all outstanding issues pertaining to the scope of Plaintiff’s psychological examination. Plaintiff’s counsel is to file a declaration with the Court which confirms compliance with this order or explains why no meaningful meet and confer occurred.