Judge: Daniel M. Crowley, Case: 20STCV21987, Date: 2023-03-17 Tentative Ruling

Case Number: 20STCV21987    Hearing Date: March 17, 2023    Dept: 28

Motion to Disqualify Defendants’ Independent Medical Examiner Nicholas Rose, M.D.

Having considered the moving papers and opposition, the Court rules as follows.

BACKGROUND

            On January 16, 2019, Plaintiff Anthony Razo (“Plaintiff”) was driving his vehicle when he collided with a light pole that had allegedly been knocked down by Defendants Tapia Enterprises, Inc. and Joaquin Ortiz (collectively, “Defendants”). Plaintiff filed this lawsuit on June 11, 2020 alleging causes of action for Motor Vehicle and General Negligence.

            On June 3, 2021, Plaintiff was examined by Dr. Nicholas Rose, M.D. (“Dr. Rose”) per Defendants’ March 30, 2021 demand for an independent medical examination of Plaintiff. Plaintiff states that his union insurance carrier had also referred him to Dr. Rose for a second opinion regarding surgery with an appointment set for June 7, 2021, and that Plaintiff was under the impression the June 3, 2021 visit would cover both the independent medical examination and the second opinion regarding surgery. Plaintiff now seeks an order from the Court disqualifying Dr. Rose on the grounds that there is a conflict of interest and that Plaintiff would be prejudiced if Dr. Rose is permitted to provide expert testimony for Defendants. Plaintiff filed the instant motion on February 10, 2023. Defendants have opposed the motion. Plaintiff did not reply.

            Trial is set for April 27, 2023.

LEGAL STANDARD

            “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code § 352.) In personal injury actions, defendants are entitled to at least one demand for physical inspection of the plaintiff. (CCP § 2032.220.)

DISCUSSION

            The Court finds that Plaintiff’s motion fails to establish undue prejudice or any other basis for excluding evidence under Evidence Code section 352. Plaintiff acknowledges that he was aware before going into the June 3, 2021 examination with Dr. Rose that it would at least include the Defendants’ independent medical examination. (Razo Decl., ¶ 8.) Moreover, it is unclear how Dr. Rose testifying at trial would preclude Plaintiff from testifying of his intent to undergo surgery with Dr. Rose and whether Plaintiff would be comfortable with Dr. Rose. It is also unclear how a conflict of interest has been created based on Plaintiff’s intent to undergo surgery with Dr. Rose.

The Court finds that Plaintiff waived any objection to any conflict of interest by Dr. Rose.  Plaintiff did not object to this purported conflict of interest until September 2022, more than a year after the examination. (Burns Decl., ¶ 6.) Had Plaintiff had any concerns about Dr. Rose examining him on behalf of the defense, he should have raised them before the examination.  Furthermore, Plaintiff did not file the instant motion until February 2023, just a couple months before trial. If the Court were to grant Plaintiff’s motion, it would likely require a continuance of trial to permit the scheduling of another independent medical examination before the cutoff for expert discovery.

            Therefore, the Court denies Plaintiff’s motion.

CONCLUSION

            The Court DENIES Plaintiff’s Motion to Disqualify Defendants’ Independent Medical Examiner Nicholas Rose, M.D.

            Plaintiff is ordered to give notice of this ruling.