Judge Jill Feeney, Case 19STCV38807 2023-01-04 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.

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On October 30, 2019, plaintiff Merlie Paule (“Plaintiff”) filed this action against defendants Sawyer Adelson and Scott Adelson (“Defendants”), arising from an automobile accident on or about May 21, 2018.

Defendants argue that good cause exists to conduct a second independent medical examination because Defendants did not know an examination from the perspective of a specialist in spinal cord stimulators was necessary at the time they first engaged the first doctor, Dr. Kaloostian. Defendants’ motion is substantially the same as their first motion, except that they included a new declaration from the proposed Dr. Prager stating Dr. Kaloostian lacked the sophisticated expertise to evaluate the appropriateness of spinal cord stimulation. Defendants also argue that Dr. Prager’s examination will not be invasive and will not exceed 120 minutes.

Plaintiff argues that Defendants have not met their burden of showing good cause exists for a second medical examination. Plaintiff points out that her spinal cord stimulator was implanted in July 2021 and testified as to the existence of the stimulator in August 2021, prior to Dr. Kaloostian’s examination. If Defendants had concerns over the spinal cord stimulator, they should have selected a doctor with the necessary knowledge. Plaintiff also argues that Dr Prager’s declaration states he will provide an identical examination to Dr. Kaloostian’s and that Defendants failed to produce the results of Dr. Kaloostian’s first examination. Plaintiff would also be prejudiced if compelled to submit to a second IME because Defendants are engaging in gamesmanship by seeking a second bite at the apple.

Defendants argue that Plaintiff did receive Dr. Kaloostian’s reports in March and August 2022. Defendants reiterate that Dr. Prager’s expertise is completely different that Dr. Kaloostian’s and that Dr. Prager’s examination is necessary to evaluate Plaintiff’s spinal cord stimulator. Defendants attached a copy of the results of Dr. Kaloostian’s first exam.

“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 receipt of the plaintiff's response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., § 2032.250, subd. (a).)

“(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., § 2032.430, subds. (a), (d).)

Defendants’ motion is substantially similar to their July 2022 motion to compel a second IME which the Court denied on the grounds that Defendants provided no explanation as to what would be done differently in a second examination that couldn’t have been performed by Dr. Kaloostian. Here, Defendants submitted a new declaration from Dr. Prager. The declaration states that he intends to perform the following:

“(1) a routine general physical examination, which includes observation of the skin of the patient, (2) a neurological examination consisting of cranial nerve testing, strength testing, sensory testing, circumferential extremity testing, range of motion testing and reflex testing, flexion and extension of the back and straight leg raising (3) a myofascial examination performed by manual palpation (4) a medical history including pain history may be taken.”

(Prager Decl., p. 2.) The declaration also states that Dr. Kaloostian, though qualified as an expert in the field, does not have the sophisticated expertise to evaluate the appropriateness of a spinal cord stimulator and to evaluate the parameters of the stimulator. (Id.)

Dr. Kaloostian’s report states that he completed a physical examination of Plaintiff, including of Plaintiff’s incision site, extremities, spine, neck, and various other body parts. (Reply, Exh. A-1.) Dr. Kaloostian also opined on Plaintiff’s residual pain, range of motion, and whether Plaintiff suffered intercranial, neurologic, neurocognitive, or neuropsychological injury that required further treatment. (Id.) According to Plaintiff’s counsel, who accompanied her to the examination, Dr. Kaloostian “performed nerve testing, strength testing, sensory testing, range of motion and reflex testing,” manual palpation of Plaintiff’s neck and back, a general physical examination, and inspection of Plaintiff’s incision site. (Nemanpour Decl.)

The Court also notes that Dr. Kaloostian also states “[w]ithin a reasonable degree of medical certainty and probability, there is no need for any of the three epidural injections or an indication of needing any of the surgical intervention, certainly not the two lumbar decompression surgeries and certainly not any spinal cord stimulator trial or permanent implantation.” (Id.) Additionally, Dr. Kaloostian notes “[a] permanent implantation of a spinal stimulator would be to the detriment of the examinee and is certainly not recommended in this particular case.” (Id.)

The evidence shows that there is no good cause for an additional medical examination of Plaintiff. As before, Defendants’ claims that they did not know an examination of Plaintiff’s implant was necessary are inaccurate. Defendants knew of Plaintiff’s implant before engaging Dr. Kaloostian. Additionally, the testing performed by Dr. Kaloostian appears to be identical to the tests proposed by Dr. Prager. Despite Defendants’ claims to the contrary, Dr. Kaloostian appears qualified to and did in fact opine on the appropriateness of Plaintiff’s implant. Defendants also fail to explain why further evaluation is necessary. The Court finds that Defendants fail to show good cause for a second examination of Plaintiff.