Judge: Jill Feeney, Case: 19STCV21519, Date: 2022-08-08 Tentative Ruling

 PLEASE NOTE:    

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.     



Case Number: 19STCV21519    Hearing Date: August 8, 2022    Dept: 30

Department 30, Spring Street Courthouse
August 8, 2022 
19STCV21519
Defendants’ Motion for Leave to Conduct a Second Independent Medical Examination of Plaintiff Joon Hee Choi

DECISION

The motion is granted.

Plaintiff is ordered to appear for examination as follows.

DATE: August 19, 2022 

TIME: 12:00 p.m. (please arrive at 11:45am) 

PLACE.: 22 Corporate Plaza Drive, Newport Beach, CA 92660 (2nd Floor -Adult Reconstruction) 

EXAMINER: Balaji Charlu, M.D. 

SPECIALTY: Physical Medicine/Pain Management 

NATURE OF EXAMINATION: Independent Medical Examination of the spine which may include history of present illness, testing, and exam. The examination will not include any diagnostic test that is painful, protracted or intrusive. 

MANNER: Physical Medicine/Pain Management Examination 

CONDITIONS: The examination will not include any diagnostic test that is painful, protracted or intrusive. No imaging will be done. 

SCOPE, TESTS, AND PROCEDURES: Brief history in regards to the physical complaints claimed from the subject incident; physical examination and testing, which likely will include reflex examination with reflex hammer on upper and lower and lower extremities, motor strength testing to see motor strength of upper and lower extremities, examination of sensation in arms and legs, pinwheel sensory examination of upper and lower extremities, range of motion test in upper and lower extremities and neck and back, and balance testing.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order. 

Background 

On June 18, 2019, Plaintiff Joon Hee Choi (hereinafter “Plaintiff”) filed a Complaint against Defendants Andrew Steven Onchu Leung, Tim Leung, Grace Law, and Does 1 through 10 (hereinafter “Defendants”) alleging a single count for motor vehicle negligence following a motor vehicular collision that took place on January 15, 2019 at the intersection of Pathfinder Road and Wellesley Drive in Rowland Heights, California 91748. (Compl., p. 4). 
On August 27, 2019, Defendants filed their Answers. 

On April 25, 2022, Defendants filed a Motion to Continue Trial and Extend Discovery Cutoff Dates, which was granted by this Court on May 18, 2022. 

On July 13, 2022, Defendants filed this instant motion for Leave to Request a Second Independent Medical Examination of Plaintiff. 

On July 26, 2022, Plaintiff filed an Opposition to Defendants’ Request. 

On August 1, 2022, Defendants filed a Reply to Plaintiff’s Opposition. 

Moving Party’s Arguments

Defendants argue that a Second Independent Medical Examination is necessary because Plaintiff’s original claimed injuries and treatment focused primarily on Plaintiff’s left hand rather than on her back, and Defendants did not receive any evidence of Plaintiff’s necessity for continuous treatment of her back after August of 2020. (Boden Decl, Exh. A, ¶3). Based on Plaintiff’s alleged restricted scope of injuries to her left hand, Defendants retained specialist Ross Nathan, M.D. to examine her hand and wrist only. (Id., Exh. B, ¶4). However, Defendants allege that because Plaintiff recently designated as a retained expert of spine and pain management, Dr. Maxim Moradian, M.D., Plaintiff has “signal[ed] to Defendants [that] her claimed spine injuries have not resolved and previously though and that she intends to bolster these claimed spine injuries at trial. (Id., Exh. C., ¶5). Defendants argue that good cause exists for an additional examination by a spine and pain management specialist with Defendants’ retained expert because Plaintiff’s spine and pain management specialist, Dr. Moradian, has “unfettered access to Plaintiff and unlimited opportunities to examine her in preparation for trial,” whereas Defendant do not have “any such access to Plaintiff by their counterpart spine/pain management specialist Dr. Charlu without a court order.” (Motion for Leave for a Second IME, p. 3: Lines 21-24). 

Opposition

Plaintiff opposes this instant motion on the grounds that Defendants had knowledge of Plaintiff’s back injuries based on Plaintiff’s discovery responses in December 2019, yet failed to request a defense medical examination until June 3, 2022. (Opp., p. 2, Lines 10-12). Additionally, Plaintiffs argue that under CCP 2032.220(a), “. . . any Defendant may demand one physical examination of the Plaintiff. . .” and that “separate injuries do not entitle Defendant to more than one exam: Only a single examination can be obtained on demand despite the variety of injuries claimed.” (See Opp., p. 2, Lines 17-23 quoting Weil & Brown, Civil Procedure Before Trial (1990) §§8:1519.1)).  Finally, Plaintiff alleges that Defendants request for a second IME lacks a showing of good cause, and should therefore, be denied. 

Reply

Defendants reiterate the same arguments from their moving papers, arguing  that there is good cause for seeking leave of court for a second IME because they did not receive any evidence of Plaintiff’s need for continued treatment on her back until after August 2020. (Reply, p. 2, Section II, Lines 15-17). 

Legal Standard 

Under California Code of Civil Procedure (“CCP”) section 2032.220(a), a defendant in a personal injury case has the right to one physical examination of the plaintiff, without leave of court, simply by serving a written demand on plaintiff. (Id.) The physical exam is limited to whatever portion of plaintiff's body or conditions are “in controversy” in the lawsuit. (CCP § 2032.020(a).) A defendant in a personal injury case that has exhausted its right to a physical examination of the plaintiff under CCP section 2032.220(a), may seek an additional physical examination of the same plaintiff only by order of the court. (CCP § 2032.310). Such order may be made only after notice and hearing, and for “good cause shown.” (See CCP § 2032.320(a); see also Conservatorship of G.H. (2014) 227 Ca.App.4th 1435, 1441.)

“Good cause” generally requires a showing both of: (1) “Relevancy to the subject matter” and (2) Specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)

Discussion

Here, Defendants had notice that Plaintiff did have some back pain as a result of the accident.  However, Defendants demonstrate that Defendants lacked knowledge that Plaintiff would be making claims for ongoing treatment of that back pain until Plaintiff designated a spine specialist as an expert witness. Defendants have demonstrated good cause here for a second IME. Clearly, Plaintiff is contending that she suffers ongoing back issues as a result of the accident and intends to have expert testimony at trial about ongoing/future treatments of this condition. Defendants cannot evaluate these claims properly without an IME of the spine.