Judge: Anne Hwang, Case: 22STCV25073, Date: 2024-09-30 Tentative Ruling

Case Number: 22STCV25073    Hearing Date: September 30, 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

            On August 3, 2022, Plaintiff Yolanda Candelario Macario (“Plaintiff”) filed a complaint, alleging injuries after a slip and fall.

            Defendant AK Investment Property, LLC (“Defendant”) now moves to compel Plaintiff to submit to a second independent medical examination with Dr. Paul Kaloostian, a neurosurgeon. 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).)¿¿¿ 

“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.  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.”  (Civ. Proc., § 2032.310, subds. (a)-(b).) 

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [“the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary”].) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  And “[a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (Id. at p. 839.)   

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿ 

MEET AND CONFER

The Declaration of Roy A. Koletsky, Defendant’s counsel, states the following: “I have attempted to meet and confer with Plaintiff’s attorney regarding the need for the second examination. However, Plaintiff eventually denied this request.” (Koletsky Decl. ¶ 11.)

DISCUSSION

            Plaintiff has alleged the following injuries due to her slip and fall: left patella fracture, left knee pain, left knee swelling, low back, left leg, right leg, neck, bilateral hip pain, mid back, right elbow, right shoulder, and left shoulder pain. Plaintiff was previously examined by Dr. Ronald S. Kvitne, an orthopedic surgeon, on November 29, 2023.

            On January 18, 2024, Plaintiff underwent cervical fusion surgery. As a result, Defendant seeks to have Plaintiff examined by Dr. Paul Kaloostian, a neurosurgeon, on September 10, 2024. Defendant argues that Plaintiff previously only attributed her knee injury to the fall. Additionally, it argues that the cervical fusion surgery requires a specialty examination that would not be covered in an orthopedic exam.

            In opposition, Plaintiff argues that she produced all her medical records on February 22, 2023, which included cervical issues. Plaintiff also contends her neck was included in the examination notice for Dr. Kvitne. (Bayona Decl., Exh. A.) Additionally, Dr. Kvitne’s report included a discussion of her spine injuries. (Id., Exh. B.) As a result, Plaintiff contends the proposed examination will involve tests that were already performed at the previous examination.

            In reply, Defendant does not dispute that Dr. Kvitne examined Plaintiff’s neck, but contends the examination focused more on Plaintiff’s orthopedic injuries. Defendant argues the surgery was a substantial medical procedure which affects Plaintiff’s physical status.

            Defendant asserts the proposed examination will contain the following tests:

“(1) Motor exam, sensory exam, cerebellar exam, gait testing, pinch testing; (2) A neurological examination consisting of cranial nerve testing, mental status, strength testing, measurement of biceps and calves, and range of motion testing. Reflex testing will be performed; palpation of hips, SI joints, neck, mid back, and low back; (3) A medical history including pain history may be taken. X-rays will not be taken.”

(Motion, 5.)

            Defendant has established good cause for the examination. Dr. Kaloostian’s specialty as a neurological surgeon is different from Dr. Kvitne’s as an orthopedic surgeon. Dr. Kaloostian’s examination will be limited to providing an opinion regarding the cervical fusion surgery, which occurred after Dr. Kvitne’s examination.[1] Although Dr. Kvitne’s physical examination included an examination of the cervical spine, the report does not discuss a cervical fusion surgery. However, the Court agrees that Dr. Kaloostian is not to examine Plaintiff beyond what is necessary to opine as to the cervical fusion surgery.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Compel Plaintiff to Attend an Additional Independent Medical Examination is GRANTED. Plaintiff shall appear for examination within 30 days at a mutually agreeable date and time.

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