Judge Audra Mori, Case 20STCV18825 2022-07-27 Tentative Ruling

Plaintiff, Anna Stickle (“Plaintiff”) filed this action against Defendants, Walmart, Inc. (“Walmart”) and Darrin Williams for injuries Plaintiff allegedly sustained on August 25, 2019, while at Walmart’s store when a Walmart associate bumped into Plaintiff with a cart while Plaintiff was checking out.

At this time, Defendant moves for an order compelling Plaintiff to undergo a second medical examination because Plaintiff alleges that she developed Complex Regional Pain Syndrome (“CRPS”). Plaintiff opposes the motion, and Defendant filed a reply.

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 has already undergone a medical examination with a defense orthopedic surgeon that included an assessment of whether Plaintiff met the criteria to be diagnosed with CRPS. Defendant asserts that Plaintiff is claiming she continues to experience ongoing pain and is meeting with doctors to determine whether modifications to her existing spinal cord stimulator, or an alternative stimulator, are appropriate. Defendant argues there is good cause to compel the second medical exam to determine whether Plaintiff meets the criteria for a diagnosis of CRPS and whether Plaintiff’s current treatment is appropriate.

However, as Plaintiff argues in opposition, Defendant’s motion does not comply with CCP § 2032.310(b). Defendant’s “Notice of Motion and Motion” does not state the time or place of the proposed exam, nor does it provide the “manner, conditions, scope and nature of the examination.” (CCP § 2032.310(b).) Defendant’s motion, thus, is insufficient.

Moreover, Defendant does not establish good cause for the second medical examination of Plaintiff. Although Defendant argues a physical exam is necessary to diagnosis CRPS, Defendant states that Plaintiff was diagnosed with CRPS on November 13, 2019, and that Plaintiff’s first medical examination by Defendant’s expert less than a year ago on August 23, 2021, included an assessment as to whether Plaintiff met the criteria to be diagnosed with CRPS. Defendant asserts that its expert opined that Plaintiff did not meet the criteria for a CRPS diagnosis. Accordingly, Defendant’s expert has already examined Plaintiff to determine whether Plaintiff meets the criteria for a CRPS diagnosis and has formed an opinion on such. Similarly, Defendant states that the spinal cord stimulator had already been implanted in Plaintiff’s back at the time of the first defense medical exam. Defendant asserts that Plaintiff is continuing to experience pain and is meeting with doctors to determine whether any modifications to the stimulator are appropriate, but Defendant does not submit any evidence of a condition that was not previously examined by its expert or a change in Plaintiff’s condition warranting a second medical exam of Plaintiff regarding her CRPS diagnosis.

In its reply, Defendant submits for the first time a declaration from its expert, Bradley Spiegel, M.D. (“Dr. Spiegel”). 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.) Even if the declaration were considered, while Dr. Spiegel provides that a physical exam of Plaintiff is necessary to determine whether she meets the criteria for CRPS, Dr. Spiegel does not explain why the first exam conducted by Defendant’s expert, or Plaintiff’s other medical records, are not sufficient to assess Plaintiff’s condition concerning her CRPS diagnosis. No good cause is provided for a second medical examination to assess Plaintiff’s alleged CRPS diagnosis.

Hon. Audra Mori

Judge of the Superior Court