Judge Jill Feeney, Case 19STCV20008 2023-03-20 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for negligence arising from an incident where Plaintiff’s car fell into a sinkhole in July 2018. Plaintiff Tony Maiden filed his Complaint against Defendant the City of Inglewood among others.

City argues that there is good cause for a second IME because Plaintiff’s daughter recently testified that Plaintiff requires 24-hour care. This is a significant change from the information provided in Plaintiff’s May 2020 deposition and warrants a second IME. City also moves for a second deposition of Plaintiff on the same grounds.

Plaintiff argues that there is no good cause for a second IME because City’s own expert conducted a thorough spinal examination in 2020 and has been issuing reports from as early as September 2020. Plaintiff argues that City’s expert has been reporting progressively worsening positive neurological findings and City improperly delayed seeking a second IME. Plaintiff also argues that the testimony of Plaintiff’s daughter is not a proper basis for allowing a second IME. Plaintiff opposes City’s motion for a second deposition on the same grounds.

City argues that its expert’s reports did not note that Plaintiff’s condition was declining. City also argues that Plaintiff’s daughter’s testimony is enough evidence to support a finding of good cause for a second IME because she is Plaintiff’s caretaker who has personal knowledge of Plaintiff’s decline. City’s reply in support of its motion to compel Plaintiff to appear for further deposition raises the same points.

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220, subd. (a).)

“If a defendant who has demanded a physical examination under this article, on “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.) (Code Civ. Proc., section 2032.310, subd. (a).)

“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.” (Code Civ. Proc., section 2032.310, subd. (b).)

“(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.” (Id., section 2032.320, subds. (a), (d).)

Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent. (Code Civ. Proc., section 2025.610, subd. (a).) The court may grant leave to take a subsequent depositions for good cause shown. (Id., subd. (b).)

City’s counsel testifies that in May 2020, Plaintiff testified during deposition that he lost some ability to use a specific guitar picking technique and that he has not lost any other abilities with respect to his music playing and performance abilities. (Gandy Decl., ¶3.) Plaintiff was also exercising normally. (Id.) In December 2022, Plaintiff’s daughter and caretaker testified under oath that Plaintiff can no longer play guitar, that he has pain all over his body, and requires 24-hour care. (Id., ¶4.) In October 2022, Plaintiff produced new medical records showing new treatment, including surgical intervention. (Id., ¶5.)

Plaintiff’s daughter testified at deposition that her father has a “claw stiffness because of the nerve damage,” that he “cannot lift things much anymore,” “can’t walk in a straight line,” “has a limp,” “can’t play guitar anymore,” “drops things,” “is in excruciating pain just to walk down the street,” and experiences “numbness and tingling…all throughout his body.” (Gabrielle Maiden Depo., 35:8-36:24.) She also testified that Plaintiff needs 24-hour care and someone must be there to help him at all times. (Id., 242:13-22.)

Plaintiff argues that City’s own expert witness, Dr. Michael Weinstein, performed an IME in September 2020 and provided 13 reports on Plaintiff’s medical condition. Plaintiff alleges that the reports have documented Plaintiff’s progressive decline and there is no need for another IME.

Dr. Weinstein’s September 2020 IME shows that Plaintiff complained of neck pain radiating down both arms with constant numbness. (Opposition, pdf p. 39.) Plaintiff had just undergone surgery. (Id.) Plaintiff also experienced should and low back pain. (Id.) Plaintiff believed he felt worse after surgery. (Id., pdf p.43.) Plaintiff could not perform a technique on his guitar after the accident and that he was still experiencing severe neck pain. (Id., pdf p. 49.) He was also experiencing severe wrist pain which was worse when he played guitar. (Id.) There were no activities other than guitar that he was no longer able to do since the accident. (Id.)

By January 2021, MRI scans of Plaintiff’s spine showed degenerative disc disease, stenosis, and kyphosis. (Opposition, pdf p. 92.) Plaintiff still experienced back pain, walked with an unstable gait, and experienced sensitivity to touch in his arms and legs. (Id., pdf p. 109.) Plaintiff was recommended for spine surgery for cervical decompression and fusion of his vertebrae. (Id.) On January 28, 2021, Plaintiff underwent spinal surgery. (Id., pdf p. 110.) In February 2021, Plaintiff showed some improvement in the pain and sensitivity in his arms and legs, but was experiencing symptoms associated with carpel tunnel. (Id., p. 111.) In March 2021, Dr. Weinstein noted that additional records and diagnostic studies show that Plaintiff had a longstanding degenerative process and there were no findings on the subsequent scans that one could relate to the subject accident. (Id.)

By July 2021, Plaintiff was experiencing pain, weakness, and numbness in his arms. (Opposition, pdf p. 111.) In September 2021, Plaintiff reported continued numbness, tingling, and shooting pain from his neck to his fingertips. (Id., pdf p. 112.) In October 2021, there were no significant changes in Plaintiff’s MRI other than changes of edema signal. (Id.) In July 2022, Plaintiff’s records note that he underwent shoulder surgery in October 2021, had carpel tunnel, and continued to have hand numbness and posttraumatic induced compression neuropathy. (Id., pdf p. 13.) Plaintiff’s records for September 16, 2022 show that Plaintiff’s hardware from past surgeries was well-maintained, Plaintiff’s C2-3 vertebrae had osteoarthritis, his fusion was stable, mild stenosis, and myelomalacia which was previously present. (Id., pdf p. 113.) Dr. Weinstein’s conclusions had not changed as of September 2022. (Id., pdf p. 114.)

City’s expert issued thirteen reports based on review of Plaintiff’s medical records. The records do show deterioration in the condition of Plaintiff’s spine. Plaintiff consistently complains of neck pain, tingling, numbness, back pain, and unstable walking, among other symptoms. Plaintiff argues that City unreasonably delayed seeking a second IME despite being on notice of the deterioration of Plaintiff’s health. Nevertheless, there is still good cause for a second IME of Plaintiff. Plaintiff’s daughter testifies that Plaintiff now requires 24-hour care, is unable to play guitar at all, and experiences pain all over his body. These are significant changes from Plaintiff’s condition in 2020. Moreover, Dr. Weinstein’s reports between 2020 and 2022 were based on review of Plaintiff’s medical reports only. In light of the significant deterioration of Plaintiff’s health and the significant change in his care needs, the Court finds that good cause exists for City to conduct a second IME of Plaintiff.

Plaintiff argues that Gabrielle Maiden is a lay person whose testimony is not a proper basis for finding good cause for a second IME. However, Gabrielle Maiden is one of Plaintiff’s caretakers who has personal knowledge of Plaintiff’s condition and care. Thus, her testimony on changes to Plaintiff’s care is sufficient to show that there is good cause to allow City to conduct a second IME of Plaintiff.

City also moves to compel Plaintiff to provide further testimony at deposition. City and Plaintiff both raise the same arguments with respect to this motion. City is already obtaining additional information about Plaintiff’s deteriorating health and care through a second IME. Additionally, City has already deposed Plaintiff’s caretaker, Gabrielle Maiden, who testified on the issue of Plaintiff’s need for 24-hour care. City does not explain what information will be sought at deposition that will not be revealed at the proposed second IME or was already revealed through Gabrielle Maiden’s deposition. The Court finds that it would be unnecessarily duplicative to allow City to depose Plaintiff a second time. City fails to show good cause exists for a second deposition of Plaintiff.