Judge: Anne Hwang, Case: 21STCV33055, Date: 2024-10-14 Tentative Ruling

Case Number: 21STCV33055    Hearing Date: October 14, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION 

            Defendant Super Center Concepts, Inc., dba Superior Grocers moves to compel Plaintiff Graciela Fonseca Garcia’s independent medical examination by neurosurgeon, Tony Feuerman, M.D. Plaintiff Graciela Fonseca Garcia opposes.

ANALYSIS 

Code of Civil Procedure section 2032.310 states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (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. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.” 

Code of Civil Procedure section 2032.320 states: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” 

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) 

Defendant moves to compel Plaintiff’s independent medical examination (“IME”) with neurosurgeon, Tony Feuerman, M.D., for an evaluation of her spine and nerves, arguing that Plaintiff had spine surgery on July 13, 2024, and has been treated by three neurosurgeons in addition to four orthopedists. Defendant contends that Plaintiff will have multiple neurosurgeons and orthopedists offer opinions in this case, while limiting defendant to a single medical expert, an orthopedist.

Plaintiff argues that she already underwent an IME with Defendant’s spine specialist, Kevin Ehrhart, M.D., an orthopedic surgeon. Plaintiff argues that neurosurgeons and orthopedic surgeons perform the same surgeries, and the difference is that neurosurgeons can also perform surgeries on the brain, which orthopedists cannot. Plaintiff also contends that Defendant had the option to complete the IME with a neurosurgeon, but decided to go with orthopedic spine specialist, Dr. Ehrhart. Additionally, Plaintiff argues that Defendant fails to argue that Plaintiff’s neurosurgeons and orthopedists evaluated Plaintiff’s same injuries, as she also has had shoulder surgery.

Defendant argues generally that an orthopedic surgeon and neurosurgeon specialize in different areas but does not explain what is anticipated to be evaluated that was not already evaluated in the prior September 13, 2023 IME, other than the July 13, 2024 spine surgery. In particular, it appears that Dr. Ehrhart already evaluated Plaintiff’s spine and low back pain. (Exh. G at p. 1-2, 17-18.) However, it is undisputed that Plaintiff had a recent surgery following the prior examination. Accordingly, the Court finds good cause for a second medical examination as it relates to the July 13, 2024 lumbar interbody fusion and related procedures.

Plaintiff seeks $3,600 in sanctions under C.C.P. § 2023.030 and 2023.010 for the alleged disclosure of confidential mediation information in this discovery motion. Plaintiff argues that Defendant violated Evidence Code §§ 1129 and 1119 by disclosing in its motion to compel Plaintiff’s examination facts learned via confidential mediation. Plaintiff also asks the Court to strike such facts, but does not specify them. Plaintiff has not set forth a sufficient basis for sanctions.

CONCLUSION AND ORDER

Accordingly, the Court grants in part Defendant’s motion to compel Plaintiff to undergo an IME.

Defendant is ordered to provide notice of this Order and file proof of service of such.