Judge: Daniel M. Crowley, Case: 21STCV38201, Date: 2023-02-08 Tentative Ruling
Case Number: 21STCV38201 Hearing Date: February 8, 2023 Dept: 28
Defendant Home Depot U.S.A., Inc.’s Motions to Compel Plaintiff Connie Romero’s Independent Medical Exams
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On October 15, 2021, Plaintiff Connie Romero (“Plaintiff”) filed this action against Defendants Home Depot U.S.A., Inc. (“HD”) and Juan Mutaz (“Mutaz”) for general negligence and premises liability.
On November 17, 2021, HD filed an answer.
On January 17, 2023, HD filed a Motion to Compel Plaintiff’s IMEs to be heard on February 8, 2023. On January 26, 2023, Plaintiff filed an opposition. On February 1, 2023, HD filed a reply.
Trial is currently scheduled for April 14, 2023.
PARTY’S REQUESTS
HD requests the Court compel Plaintiff to appear for an IME with orthopedic surgeon Irwin Bliss, M.D. HD requests the Court compel Plaintiff to appear for an IME with pain management specialist Dr. Chris Zarembinski. HD also requests sanctions totaling $1,940.00.
Plaintiff requests the Court deny the motion and the request for sanctions.
LEGAL STANDARD
A defendant may demand one physical examination of the plaintiff in applicable personal injury cases, so long as the examination is not pain or intrusive and within 75 miles of the examinee’s place of residence. Code of Civil Procedure § 2032.220. Within 20 days of being served with the demand, the plaintiff served will respond either with intent to comply or refuse, and if the latter, provide reasons for the refusal. CCP § 2032.230.
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).)
California Code of Civil Procedure § 2023.030(a) provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” According to CCP §2023.010(d), misuse of the discovery process includes “failing to respond or to submit to an authorized method of discovery.”
DISCUSSION
Plaintiff alleges that as a result of the subject incident, Plaintiff sustained injuries to her right foot, knee, groin and hip. She also alleges that as a result of the incident, she suffers from Complex Regional Pain Syndrome. Plaintiff argues that CRPS is not a separate injury, but rather an evolution of the injury to her right foot, in which the CRPS travels from her right foot all the way to her groin. She states that CRPS is now the sole cause of her current complaints.
According to the Mayo Clinic, “Complex regional pain syndrome (CRPS) is a form of chronic pain that usually affects an arm or a leg. CRPS typically develops after an injury, a surgery, a stroke or a heart attack. The pain is out of proportion to the severity of the initial injury. [¶] CRPS is uncommon, and its cause isn't clearly understood.” (See, https://www.mayoclinic.org/diseases-conditions/crps-complex-regional-pain-syndrome/symptoms-causes/syc-20371151) The Court’s experience is that parties generally call several specialists to testify on the issue, including neurologists, pain management specialists, and orthopedists.
The Court anticipates that Plaintiff will call a CRPS specialist at trial in addition to other doctors, and so intends to Grant this motion. On the other hand, if Plaintiff indicates that she will only be calling a Pain Management specialist, and not any other specialists, the Court will reconsider granting the motion.
CONCLUSION
Defendant Home Depot U.S.A., Inc.’s Motions to Compel Plaintiff Connie Romero’s Independent Medical Exams is GRANTED.
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.