Judge: David A. Hoffer, Case: 30-2020-01137258, Date: 2022-09-26 Tentative Ruling

The motion of defendants Samira Seini, D.D.S., and Samira Seini Dental Professional Corporation dba Orange Cosmetic Dentistry for an order to reopen discovery for the limited purpose of compelling plaintiff Jessica Tejada-Nettles to submit to a physical examination with Mark Exler, D.D.S., is GRANTED as provided in this ruling.

Defendants move to reopen discovery for the limited purpose of having plaintiff Jessica Tejada-Nettles undergo a dental examination by Mark Exler, who is a licensed dentist and specializes in the area of prosthodontics, including restorative and cosmetic dentistry.  Plaintiff previously underwent a dental examination by defense expert Barton Kubelka, D.D.S. on October 2, 2020.  However, Dr. Kubelka recently advised defense counsel that he must withdraw from the case as defendants’ expert for medical reasons (a serious cancer diagnosis).  Defendants wish to designate Dr. Exler as an expert in the place of Dr. Kubelka and therefore seek an order permitting an examination of plaintiff by him before trial. 

Plaintiffs oppose the second examination, although they indicate that they will agree to the substitution of Dr. Exler for Dr. Kubelka (as long as he does not conduct a second examination).  They contend that defendants can use the report that Dr. Kubelka prepared as well as his videotaped deposition at trial.  They also contend that Dr. Kubelka took 18 x-rays and 27 photographs of plaintiff’s gums and teeth.  They also complain that Dr. Exler’s office is located in Encino and plaintiff lives in Anaheim. 

Trial was initially set for March 28, 2022 but continued by the Court on an ex parte application to October 31, 2022.  The Court did not reopen discovery when continuing trial. 

In exercising its discretion to grant or deny a party’s motion for leave to complete discovery or reopen discovery after a new trial date has been set, the Court must take into consideration any matter relevant to the leave requested, including:

·        the necessity and the reasons for the discovery

·        the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion and the reasons that the discovery was not completed or that the discovery motion was not heard earlier

·        any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set or otherwise interfere with the trial calendar or result in prejudice to any other party

·        the length of time that has elapsed between any date previously set and the date presently set for the trial of the action

Code Civ. Proc. § 2024.050(a) and (b). 

With regard to physical examinations, a defendant in a personal injury case has the right to one physical examination of the plaintiff, without leave of Court, by serving a written demand on the plaintiff under Code Civ. Proc. § 2032.220.  Any other mental or physical examination must be ordered by the Court on motion on a showing of good cause.  Code Civ. Proc. § 2032.310-2032.320.

The motion for a physical or mental examination must specify the following: 

·      the time of the examination

·      the place of examination and, if it is more than 75 miles from the examinee’s residence, good cause must be shown and the trial will be conditioned on advancement by the moving party of reasonable expense and costs of the examinee’s travel to the place of examination

·      the manner and conditions of the examination

·      the scope and nature of the examination

Code Civ. Proc. 2032.310(b).  The motion complies with these requirements. 

The unanticipated withdrawal of Dr. Kubelka as defense expert and his replacement with Dr. Exler constitutes good cause for the Court to reopen discovery for the purpose of examination of plaintiff by Dr. Exler for evaluation.  However, given that plaintiffs’ counsel indicates that Dr. Kubelka took 18 x-rays and 27 photographs of plaintiff’s teeth and gums, Dr. Exler should be able to use these x-rays and photographs instead of taking new ones. 

Furthermore, given that plaintiffs’ counsel represents that plaintiffs reside in Anaheim and her attorneys are located in Torrance, defendants should reimburse plaintiff for her travel expenses to Dr. Exler’s office in Encino.  Defendants should also reimburse plaintiff for the attorney fees she incurs as a result of having legal representation with her at the examination.

Within 3 days of this ruling, the parties are to meet and confer regarding a prompt date and time for the examination.  The time selected should be one that allows plaintiffs to get to and from the examination without undue delay (e.g., 10:30 a.m.).  The parties are to also agree on a deposition date for Dr. Exler that does not require a continuance of the October 31, 2022 trial date.

The defendants are ordered to give notice of this ruling.