Judge Deirdre Hill, Case 19STCV32547 2022-08-03 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

Moving Parties: Defendants Heather Seyfert and Physiotherapy Associates, Inc., dba Select Physical Therapy

On September 13, 2019, plaintiff Erica H. Leventhal, a minor by and through her guardian ad litem, Cornelia A.R. Pechmann, filed a complaint against Select Medical Holdings Corporation, Inc., Select Physical Therapy, Novacare Rehabilitation Health Services, Inc., and Heather Seyfert for (1) battery, (2) fraud, and (3) negligence.

On February 21, 2020, the court overruled defendants Physiotherapy Associates, Inc., Select Medical Holdings Corporation, Inc., and Heather Seyfert’s demurrer as to the 1^st cause of action for battery and sustained it without leave to amend as to the 2^nd cause of action for fraud. The court granted the motion to strike in its entirety.

On December 1, 2020, plaintiff filed an amendment designating Jamielu Dominguez as Doe 1.

On February 22, 2021, plaintiff filed an amendment designating Physiotherapy Associates, Inc. dba Select Physical Therapy as Doe 2.

On May 18, 2021, the court sustained with leave to amend defendant Jamie Lu Dominguez’s demurrer to the 1^st cause of action for battery in the FAC.

“As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.

CCP § 2032.020 states: “(a) Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or other person is in controversy in the action. . . . (c) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.”

CCP §2032.310(a) states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) 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. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

CCP §2032.320 states in part: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”

Defendants Heather Seyfert, PT and Physiotherapy Associates, Inc. dba Select Physical Therapy request an order for leave to obtain a mental examination of plaintiff before psychiatrist David Braff, M.D., at Regus – Continental Grand, 2447 Pacific Coast Highway, 2^nd floor, Hermosa Beach, CA 90254.

In the FAC, plaintiff alleges that on April 6, 2018, Erica had a transaxillary right rib resection to treat her Thoracic Outlet Syndrome. FAC, ¶13. On April 19, 2018, Erica started post-surgery physical therapy with Heather Seyfert, a licensed physical therapist, at Select Physical Therapy (“Select PT”). On the same date, Erica’s mother, Connie Pechmann, signed a document as a condition of Erica’s treatment at Select PT, in which she responded “No, I would prefer my child not be seen by a student.” Id., ¶14. Erica’s mother expressly refused in writing to consent to any student/intern touching her daughter at any time during the course of Erica’s post-surgery treatment at Select PT. Id., ¶15. On September 14, 2018, a physical therapy student/intern at Select PT named “Jamie,” acting without consent, aggressively applied a percussive massage machine to bony prominences at Erica’s right shoulder, right armpit, right upper arm, and right upper front and back. Id., ¶16. In response to Erica’s demand to stop the treatment, Jamie responded, “you need this” and was even more aggressive in her application of the massage machine. Id., ¶17.

Plaintiff further alleges that on the following morning, September 15, 2018, Erica’s mother emailed Seyfert at Select PT, stating in part that “Erica is in tears this morning. She said the intern really hurt her yesterday. I signed paperwork saying Erica should never be touched by an intern and she cannot ever again be touched by an intern. She said the intern worked too aggressively on her upper arm and put a machine on the bone of her shoulder and now she feels nervy pain and tingling all the way down to her fingers and she hasn’t felt this badly since after surgery. She was nearly recovered and starting to pitch and now she’s got to start all over again. . . . She said she told the intern to stop but she refused.” On September 17, 2018, plaintiff’s mother sent another email, asking, “we would really appreciate it if you could give us the first and last name of the intern and how much training she had and where. Also please tell us which equipment she used and which 2 body parts she worked on and for how long with each body party.” Seyfert responded, “Jamie is a 3^rd year DPT intern from USC. The massage machine is called the hypervolt massage tool.” Id., ¶18. During a telephone call with Erica’s parents, Seyfert admitted that she knew that interns were not permitted to work on Erica. Seyfert also admitted that she had allowed the intern to work on Erica. Notwithstanding Seyfert’s unequivocal admissions, for and on behalf of all defendants, that a student touched Erica without consent, Seyfert’s physical therapy record for September 14, 2018 omits any mention of the student who actually “treated” Erica. Id., ¶19. Since the battery to the present date, Erica has been unable to write with her right hand for more than five to fifteen minutes, and portions of her right upper arm, armpit, back, hand, and fingers have been numb. She continues to have pain often with shocking in her spine, shoulder blade, collarbone, neck, and down her arm. Id., ¶25.

Defendants argue that they have good cause because severe emotional distress damages and plaintiff’s mental condition are at issue and defendants dispute the nature, cause, and extent of those injuries. Defendants contend that many of the symptoms preexisted the incident and are not reflective of physical injuries currently reported. Defendants assert that in her discovery responses, plaintiff stated that she experiences symptoms of PTSD as a result of the “physical attack of the intern.” Defendants also contend that plaintiff asserts that she continues to suffer from physical pain, which she attributes to the development of Complex Regional Pain Syndrome, “which is known to have a psychological component to the patient’s perception of pain.” Defendants also note that plaintiff is seeking compensation for the purchase of a service dog. Defendants argue that they need the ability to investigate these claimed injuries to determine if they are “real” and if so, the severity of the same, in order to properly evaluate their case for trial.

Defendants contend that the scope of the medical examination will include those injuries and complaints claimed by plaintiff and will not include invasive tests or procedures. The examination would consist of taking a medical history, present status, review of records, a physical/clinical/psychological examination to evaluate plaintiff’s contentions of severe emotional distress and post-traumatic stress disorder injuries and the relationship between those contentions and her reported pain injuries. Dr. Braff would perform psychological testing, including but not limited to Minnesota Multiphasic Personality Inventory Test. He would interview plaintiff regarding her current medications, treating providers, therapies, and daily routines to determine the significance of these factors upon plaintiffs’ alleged injuries including, emotional distress, post-traumatic stress disorder, and complex regional pain syndrome.

In opposition, plaintiff argues that the motion is meritless. She stipulated pursuant to CCP §2032.320 that she “will not seek damages for emotional distress over and above that usually associated with the physical injuries claimed” and that no expert testimony regarding the same will be offered at trial. Given the stipulation, plaintiff contends, the court “shall not” grant a mental examination except on a showing of “exceptional circumstances” under CCP §2032.320 and defendants do not offer any exceptional circumstances in support of the motion. Further, plaintiff asserts, defendants claim to want to subject plaintiff to a mental examination to “help evaluate the veracity of plaintiff’s emotional distress damages” but that, plaintiff argues, it is impermissible to use an expert to test a person’s veracity or credibility. Moreover, plaintiff contends, plaintiff has already submitted to an IME by defendants’ pain medicine physician. Also, she is not seeking damages for any mental health disorder and there is no evidence to show that plaintiff received mental health counseling prior to the incident.

In reply, defendants reiterate their argument that complex regional pain syndrome has a psychological component, which is part of the evaluation of whether an individual has that particular diagnosis. Defendants assert that an evaluation and testing is necessary to determine if plaintiff has the psychological factors needed for a pain modification syndrome and related damages. Further, defendants contend that plaintiff’s neurology expert’s report indicates that “supportive therapeutic counseling by a therapist trained in treating patients with chronic pain syndromes may prove therapeutic.”

The motion is DENIED. As stated by plaintiff, she stipulated under CCP §§2023.320(b)-(c)(1), (2) that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed” and that “no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” See plaintiff’s stipulation dated July 15, 2022. David Dushane decl., Exh. C. Defendants have not met their burden of showing “exceptional circumstances.”