Judge Audra Mori, Case 20STCV05871 2022-09-22 Tentative Ruling

Plaintiff Farideh Sangeladji (“Plaintiff”) filed this action against Defendant the Cheesecake Factory Incorporated (“Defendant”) for injuries relating to a trip and fall incident at Defendant’s restaurant.

At this time, Defendant moves for leave to have Plaintiff undergo a second physical medical examination. Plaintiff opposes the motion, and Defendant filed a reply.[1]

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP §2032.320(a).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP §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.) 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.)

The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. The moving party must also establish good cause for the examination(s) sought. A court order for physical or mental examination must be based on a showing of “good cause” (CCP § 2032.320(a)): (1) relevancy to the subject matter; and (2) specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) The purpose is to protect an examinee's privacy by preventing annoying “fishing expeditions” - i.e., one party may not compel another to undergo psychiatric testing “solely on the basis of speculation that something of interest may surface.” (Id.)

The motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.” (CCP § 2032.310(b).) The requirement for specification of the “manner, conditions, scope and nature of the examination” apparently requires disclosure of whatever diagnostic tests and procedures will be utilized (x-rays, blood and urine samples, etc.). (See CCP § 2032.220(c).) The notice of motion must be accompanied by a meet and confer declaration. (CCP § 2032.310(b).)

Here, Defendant provides that Plaintiff underwent a physical exam with Dr. Christos Photopoulos (“Dr. Photopoulos”) on December 1, 2021, regarding Plaintiff’s alleged shoulder injury and subsequent surgery. Defendant asserts that after Defendant noticed the exam with Dr. Photopoulos, Plaintiff alleged that she will require back surgery as a result of the incident. Defendant moves to compel Plaintiff to undergo a second physical exam with Mark J. Spoonamore, M.D. (“Dr. Spoonamore”), an orthopedic surgeon specializing in the spine.

Defendant asserts that Dr. Photopoulos was chosen for his specialty in shoulder injuries, so he was not versed to opine as to the extent and necessity of spinal surgery. Defendant contends that Plaintiff has put her back condition at issue, and a separate and distinct examination from Plaintiff’s shoulders is required. Defendant contends that without the proposed exam, Defendant cannot evaluate whether the claimed diagnoses and recommended surgery are appropriate.

In opposition, Plaintiff avers that she has identified injuries to her back prior to Defendant noticing Plaintiff’s physical exam with Dr. Photopoulos, and that Dr. Photopoulos reviewed records of all of Plaintiff’s injuries attributed to the incident. Plaintiff argues that Defendant fails to establish good cause for the two examinations because Plaintiff’s back has already been examined by Dr. Photopoulos, and that Dr. Photopoulos did not indicate that he was not qualified to render an opinion as to Plaintiff’s back injury. Plaintiff asserts that a repeat examination of his spine would therefore be cumulative and harassing.

In reply, Defendant asserts that Dr. Photopoulos was chosen by Defendant prior to Plaintiff’s receiving a recommendation for spinal surgery, and the entirety of Plaintiff’s treatment prior to receiving that recommendation consisted of treating her shoulder. Defendant contends the proposed examination would not be burdensome or harassing because this exam is needed to determine the cause of Plaintiff’s spinal injuries.

The evidence shows that Plaintiff informed Defendant, and Defendant was aware, of Plaintiff’s back complaints prior to the examination with Dr. Photopoulos. However, Defendant became aware of the relevant spinal surgery recommendation after the examination with Dr. Photopoulos was noticed. Before the examination with Dr. Photopoulos took place, the parties met and conferred unsuccessfully about having a second examination that focused on the spine, so at the time of the Photopoulos examination, both parties were on notice that a second examination would be sought, though neither knew with certainty whether it would occur. Although Dr. Photopoulos’ report mentions the spinal surgery consultation and Plaintiff’s spine, Defendant argues that a second examination with Dr. Spoonamore would not be “unreasonably cumulative or duplicative” or “unduly burdensome or expensive.” (Cal. Code of Civ. Proc. § 2019.030.) Rather, it would focus on Plaintiff’s alleged spinal injuries, rather than her alleged shoulder injuries, and it is necessary because Plaintiff will attempt to discredit Dr. Photopoulos’ opinions concerning Plaintiff’s alleged spinal injuries since Dr. Photopoulos’ practice is focused on shoulders. Further, as Defendant contends, the evidence regarding Plaintiff’s back injury and spinal surgery recommendation is directly relevant to the issues in this case. Defendant avers that Dr. Spoonamore has undergone education and training in the field of spinal surgery, which is separate and distinct from Plaintiff’s shoulder injury claims. Moreover, although Plaintiff asserts that she has already appeared for one physical examination, Plaintiff does not identify any prejudice she will suffer by being compelled to appear for the second exam with Dr. Spoonamore.

Defendant meets the burden of showing good cause for the second physical exam. Therefore, Defendant’s motion to compel the second physical exam of Plaintiff is granted.

Plaintiff is ordered to appear for the physical examination with Dr. Mark J. Spoonamore, M.D.,

at his office located at 1450 San Pablo St. #3000, Los Angeles, California 90033, on October 17, 2022, at 12:00 p.m.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiff filed an objection to Exhibit 1 attached to the supplemental declaration of Samuel Gallman attached to the reply. The Court will not ordinarily consider new evidence submitted for the first time on reply as it deprives Plaintiff of the opportunity to address the evidence, and thus, the Court may exercise its discretion not to consider it here. (See Weiss v. Chevron U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098, 1099; See also Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362.) The objection to the exhibit is therefore sustained.