Judge: Craig Griffin, Case: Hausman vs. Zhu, Date: 2023-08-28 Tentative Ruling
Defendants Brian Zhu, Wei Hong. and Yang Zhu’s (“Defendants” together) Motion to Compel (“Motion”) independent medical examinations (“IME”) of plaintiff Isaac Hausman (“Plaintiff”) is GRANTED in part and DENIED in part.
In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff. (Civ. Proc. Code § 2032.220(a).) A party seeking additional IME or a neuropsychological IME must move the court for an order requiring Plaintiff to appear. (Civ. Proc. Code § 2032.310.) “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Civ. Proc. Code § 2032.320(a).)
Plaintiff previously underwent a physical IME with Luke Macyszyn, M.D. (“Macyszyn”), which focused solely on Plaintiff’s alleged spine injuries. (Opposition, Ex. 5 at p. 1 ¶ 5.) Defendants now seek a second physical IME with an Otolaryngologist to examine Plaintiff’s allegations of tinnitus, headaches, and hearing loss. The Motion notes Djalilian will be conducting specific examinations related to Plaintiff’s head, neck, cranial nerve, and tinnitus. These exams do not appear to have been performed by Macyszyn. Macyszyn’s findings also indicate his examination only pertained to an examination of the spine and that no other expert opinions would be offered. (Opposition, Ex. 5 at p. 1 ¶ 5.) While Macyszyn noted Plaintiff consulted with an ENT for his tinnitus, and while Macyszyn summarized some of Plaintiff’s medical records related to the ENT/audiology, Macyszyn did not actually perform any examination related to the tinnitus. (Opposition, Ex. 5, pp 2 ¶ 5 and 10, 6 ¶ 1, 3 – 5.)
As Defendants’ Motion has indicated the tests Djalilian intends to perform and how they are necessary based on Plaintiff’s alleged injuries, the Motion complies with the code. A separate statement in support of the Motion does not appear to be required under CRC Rule 3.1345(a)(6) as Plaintiff served no objection to the demands.
The Motion is GRANTED as to the physical IME with Djalilian. The examination pertains to Plaintiff’s allegations of hearing loss, tinnitus, and headaches caused by tinnitus. Djalilian is permitted to take Plaintiff’s history, examine Plaintiff’s head, neck, and cranial nerve, and perform audiometry testing, tinnitus matching, acoustic reflex testing, otoacoustic emissions, tympanometry, and auditory brainstem response testing. The examination must not entail any procedures that are invasive or painful. The examination is to occur at Djalilian’s office located at 101 City Drive S, Pavilion 2, 1st Floor, Orange, CA 92868. Parties are to meet and confer on a date and time that will work for Plaintiff, party counsel, and Djalilian. This IME must occur within 60-days of the hearing.
Defendants also request a neuropsychological IME with Manuel Saint Martin, M.D. (“Martin”). The Motion states Martin is board certified in Psychiatry and Neurology, Martin will conduct a neuropsychological examination. This will include a clinical interview and the administration of standardized psychometric tests, including the Minnesota Multiphasic Personality Inventory Second Edition Restructured. Millon Clinical Multiaxial Inventory Fourth Edition, Wechsler Adult Intelligence Scale-IV, Trauma Symptoms Inventory Second Edition, Personality Assessment Inventory, Comprehension Trail-making Test Second Edition, Test of Non-Verbal Intelligence, B Test, Wechsler Memory Scale-IV, Test of Memory Malingering, Wisconsin Card Sorting Test, Test of Brief Attention, Neuropsychological Assessment Battery and Hopkins Verbal Learning Test.
“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (. (Vinson v. Superior Court (1981) 43 Cal.3d 833. 839.) “[T]he existence and extent of her mental injuries is indubitably in dispute. In addition, by asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.” (Id., at 840.)
The neuropsychological IME does not appear to be called for. Plaintiff’s alleged injuries are post-concussive injuries, headaches, and tinnitus in addition to spinal issues. (Goodman Decl., Ex. A.) There are no allegations of psychological or emotional injuries. While it is possible that certain “post-concussive injuries” may be treated by be neuropsychologists, several of the examinations intended to be performed by Martin relate to personality disorders, intelligence testing, and cognitive disorders, none of which have been put at issue by Plaintiff. The headaches appear to be caused by the tinnitus, which would be covered under the ENT examination. (Opposition, Ex. 5 at p. 2 ¶ 10 [“Mr. Hausman also voices tinnitus, which “creates headaches.”)]
As there is no evidence of Plaintiff claiming any mental or psychological injuries, Defendants have not put forth sufficient need for a neuropsychological examination with testing into Plaintiff’s emotion, mental, and intelligence. The Motion is DENIED without prejudice as to the neuropsychological IME.
Plaintiff requests monetary sanctions on the Motion pursuant to Civ. Proc. Code §§ 2023.010 and 2023.030. However, “monetary discovery sanctions may be imposed under section 2023.030 only to the extent authorized by another provision of the Discovery Act. Section 2023.010 describes conduct that is a misuse of the discovery process, but does not authorize the imposition of sanctions. The plain language of the statutory scheme does not provide for monetary sanctions to be imposed based solely on the definitional provisions of sections 2023.010 or 2023.030, whether construed separately or together.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal. App. 5th 466, 475, 498, 500-02.) As the court cannot award monetary sanctions based upon the two code sections cited, and as monetary sanctions are generally not warranted, the request is denied.
Defendants to give notice.