Judge: Daniel M. Crowley, Case: 20STCV42434, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV42434    Hearing Date: August 11, 2022    Dept: 28

Defendant Cristina Ciminelli’s Motion for Leave to Proceed with Additional Independent Medical Exams.

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

 

BACKGROUND

On November 5, 2020, Plaintiff Raquel Montanez (“Plaintiff”) filed this action against Defendant Cristina Ciminelli (“Defendant”) for motor vehicle negligence and general negligence.

On April 15, 2021, Defendant filed an answer.

On July 18, 2022, Defendant filed a Motion to Compel Plaintiff to Submit to Multiple IMEs to be heard on August 11, 2022. On July 29, 2022, Plaintiff filed an opposition. On August 4, 2022, Defendant filed a reply.

Trial is currently scheduled for December 6, 2022.

 

PARTY’S REQUESTS

Defendant requests the Court order Plaintiff to appear for the following IMEs: Examination by Edwin Amos, M.D., neurologist, on September 8, 2022, at 1:30 p.m. at Santa Monica Neurological Consultants, 2021 Santa Monica Blvd., Suite 525 E, Santa Monica, CA 90401. Examination by James High, M.D., psychiatrist, on September 20, 2022, at 9:00 a.m. at 1990 S. Bundy Drive, Suite 430, Los Angeles, CA 90025. Examination by Carlos Saucedo, Ph.D., neuropsychologist, on September 30, 2022, at 9:30 a.m. at West Valley Medical Center at 5356 Balboa Boulevard, Suite 439, in Encino, CA 91316.

Plaintiff requests the Court deny the motions, or, in the alternative, be required to abide by certain limitations in conducting the examination.

 

LEGAL STANDARD

Code of Civil Procedure §2032.310 (a) requires a party to obtain leave of court if it wishes to obtain discovery by an additional physical exam or any mental exam. Subdivision (b) provides that a motion 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.” Such a motion may only be granted on good cause shown.  (CCP §2032.320(a).)

 

DISCUSSION

Plaintiff alleges that, as a result of the subject incident, she suffered from a head injury, laceration, headaches, dizziness, sleep difficulty, depression, irritability, anxiety, slow processing speed, anger, forgetfulness, neck pain and lower back pain. She has been diagnosed with scalp laceration, TBI, post-concussion syndrome, post-traumatic headaches and post-traumatic dizziness/disequilibrium. As such, Plaintiff has put both mental and physical injuries at issue. There is good cause to grant leave so that Defendant may evaluate all of Plaintiff’s injuries.

Defendant served Plaintiff with IME notices for each, which Plaintiff objected to, partially on the basis that the mental examinations are cumulative. The Court disagrees; a neuropsychology and psychology exam are distinctive exams encompassing different fields.

Defendant provided the time and place of the examination, as well as the necessary information on the individual conducting the exam. Defendant also attached demands which outlined the scope, conditions, and nature of the examinations. As such, Defendant has complied with all requirements.

Plaintiff argues that Plaintiff has already been examined by an orthopedist, and thus should not be subjected to additional examinations. However, an orthopedist focuses on different types of injuries; this would not be cumulative. Additionally, Plaintiff notes that she is not claiming any psychiatric conditions, but rather residual symptoms of a brain injury, which is generally the purview of a neuropsychological examination. However, Plaintiff is alleging psychological injuries, meaning that there is good cause to grant leave. As such, the Court grants Defendant’s request.

Plaintiff requests that, should the examinations be granted, certain limitations be put in place. The Court addresses those as follows. Plaintiff does not have to provide any information that is protected by privilege. Plaintiff is allowed to make audio recordings of the examination, as allowed under CCP § 2032.510; the recording party may not participate in or disrupt the examination. Plaintiff will be required to fill out patient information forms in order to expedite the process. Plaintiff is entitled to reasonable breaks. Plaintiff may be asked information regarding treatment of herself or of family members, if relevant. A copy of the written report will be provided to counsel, and the actual data/test information will be provided to Plaintiff’s neuropsychological expert. Dr. Saucedo will be allowed to be assisted by the previously identified individual. Plaintiff will be responsible for cancellation fees, pursuant to the reasonably provided cancelation policies. Finally, Plaintiff may be asked to again review her history at both mental examinations.

 

CONCLUSION

Defendant Cristina Ciminelli’s Motion for Leave to Proceed with Additional Independent Medical Exams is GRANTED. Plaintiff is ordered to appear for a neurology examination by Edwin Amos, M.D., neurologist, on September 8, 2022, at 1:30 p.m. at Santa Monica Neurological Consultants, 2021 Santa Monica Blvd., Suite 525 E, Santa Monica, CA 90401, a psychiatric examination by James High, M.D., psychiatrist, on September 20, 2022, at 9:00 a.m. at 1990 S. Bundy Drive, Suite 430, Los Angeles, CA 90025, and a neuropsychology examination by Carlos Saucedo, Ph.D., neuropsychologist, on September 30, 2022, at 9:30 a.m. at West Valley Medical Center at 5356 Balboa Boulevard, Suite 439, in Encino, CA 91316. Parties may also choose another mutually agreeable date within 30 days of the hearing on the motion.

The limitations to be placed on the examinations are discussed in the discussion paragraph.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.