Judge: Anne Hwang, Case: 21STCV46088, Date: 2023-11-17 Tentative Ruling

Case Number: 21STCV46088    Hearing Date: November 17, 2023    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

BACKGROUND

            On December 17, 2021, Plaintiff Maria Maldonado (Plaintiff) filed a complaint against Defendants Digna Victoria Guillen and Does 1 to 10 for injuries resulting from a motor vehicle accident.

            Defendant Digna Victoria Guillen (Defendant) now moves to compel Plaintiff’s physical examination pursuant to Code of Civil Procedure section 2032.220. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (a).)¿¿ 

Code of Civil Procedure section 2032.250 provides that, when a plaintiff fails to respond to a demand, or refuses to submit to the physical examination, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. The motion must be accompanied by a meet and confer declaration.

Code of Civil Procedure section 2032.510 provides that an “attorney for the examinee … or that attorney’s representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.” (Code Civ. Proc. § 2032.510(a).) Moreover, if “in the judgment of the observer the examiner becomes abusive to the examinee or undertakes to engage in unauthorized diagnostic tests and procedures, the observer may suspend it to enable the party being examined or producing the examinee to make a motion for a protective order.” (Code Civ. Proc. § 2032.510(d).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2032.250 (b).)

MEET AND CONFER

The Declaration of Mark Capell does not detail the meet and confer efforts but attaches an email exchange between the parties. (Capell Decl. ¶ 10, Exh. B.) Based on the exchange, it appears the parties briefly discussed the issue, but did not substantially discuss the issue.    

DISCUSSION

Plaintiff has alleged “orthopedic and neurological injuries to her neck, mid-back, and lower back along with symptoms of cervical and lumbar radiculopathy.” (Capell Decl. ¶ 3, Exh. A, FROG 6.2, 6.3, 6.4.) Plaintiff also has pain in her neck which radiates to her left arm and has been treated by a spine and pain management specialist. (Id. ¶ 4–5.)  On September 21, 2022, Defendant served a notice to conduct a physical examination on Plaintiff with Dr. Luke Macyszyn, a neurosurgeon. Plaintiff’s counsel objected in email that Dr. Macyszyn had hurt his clients in previous examinations. Defendant refused to set the examination with a different doctor.

Defendant argues Dr. Macyszyn is a board-certified neurosurgeon. Based on the Notice to conduct an independent physical examination, the scope “shall include and require a history to be given by Plaintiff, a clinical neurological and neurosurgical examination, including palpation of the spine, range of motion testing, if necessary, sensory examination, motor examination and reflexes examination, and any other neurological clinical tests required by the examining physician.” (Motion, at Ex. C.)

Plaintiff first argues that Defendant’s first physical examination has expired since it did not immediately file a motion to compel. Defendant served identical notices on March 9, 2023 and June 1, 2023. (Opposition at p. 4.) Plaintiff cites to no authority to support this assertion. Moreover, Plaintiff’s position appears to be that a motion to compel is necessary because this is a “second” examination. (Opposition at p. 9.) The Court notes that discovery remains open, Defendant has set forth good cause for the examination, and the request is made through a motion to compel. The issue is properly before the Court.

Plaintiff’s counsel next argues that Dr. Macyszyn significantly hurt previous clients in two prior examinations. (Hoffman Decl. ¶ 8–10.) Plaintiff also includes a declaration from attorney Kurt Katnick who observed Dr. Macyszyn quickly twist his client from left to right in a violent manner during an examination. (Exh. C, Katnik Decl. ¶ 2–6.) Mr. Katnick declares that as his client was tearing up from pain, Dr. Macyszyn began to smile. (Id. ¶ 6.) Plaintiff argues that this evidence shows that Plaintiff’s examination may include a diagnostic test or procedure that is painful, protracted, or intrusive, thereby violating section 2032.220(a). However, if the motion is granted, Plaintiff requests the right to video record Dr. Macyszyn’s examination to document any injuries he causes. (Opposition at p. 10.)

First, based on the Notice, the procedures in the examination will include: “palpation of the spine, range of motion testing, if necessary, sensory examination, motor examination and reflexes examination, and any other neurological clinical tests required by the examining physician.” Plaintiff does not contend that any of these tests are inherently painful, but rather that Dr. Macyszyn’s application of these procedures may be abusive. The Court finds Plaintiff’s objection to be speculative.

Moreover, Code of Civil Procedure section 2032.510 provides that Plaintiff may be accompanied by an attorney or an attorney’s representative, and if “in the judgment of the observer the examiner becomes abusive,” the observer may suspend the examination. The Court finds that the procedures authorized by the Code of Civil Procedure are sufficient to address Plaintiff’s concerns.

Second, Code of Civil Procedure section 2032.510 does not permit video recording of the examination. (See Ramirez v. MacAdam (1993) 13 Cal.App.4th 1638, 1641 [“The statute codified the existing case law in allowing for the presence of the examinee’s attorney and audiorecording of the examination. Like its predecessor, the statute does not authorize videotaping of medical examinations. Significantly, however, the Legislature, in its 1986 revision of the discovery statutes, did expressly authorize videotaping of deposition testimony. … This is strong evidence of a legislative intent in the enacting Civil Discovery Act of 1986 ‘that videotaping of medical examination is not permissible.’”] [citations omitted].)

Therefore, based on the above, the Court grants the motion to compel Plaintiff’s physical examination.

The Court finds that Plaintiff has acted with substantial justification in opposing this motion and declines to award monetary sanctions.

CONCLUSION AND ORDER

Accordingly, Defendant Digna Victoria Guillen’s motion to compel Plaintiff’s independent medical examination is GRANTED.  Plaintiff shall appear for an examination with Dr. Macyszyn within 30 days.

Defendant shall provide notice of the Court’s order and file a proof of service of such.