Judge Jill Feeney, Case 20STCV02388 2023-01-12 Tentative Ruling

This action was commenced on January 21, 2020. This is action is based on a car accident that occurred on May 14, 2019. Plaintiffs to this action are Hugo Rodriguez-Benitez and Angel Alejandro Rodriguez; the defendants are Kris Kim and BNA Textile, Inc.

Defendant argues good cause exists for a psychological evaluation because Plaintiff intends to undergo surgery to implant a spinal cord stimulator to treat his injuries from the subject collision and that that a psychological examination is warranted because Plaintiff has placed his psychological condition at issue by seeking a spinal cord stimulator, which requires psychological evaluation prior to the procedure.

Plaintiff argues that a psychological evaluation is not necessary because Plaintiff is not seeking damages for mental health injuries and does not place his mental health at issue merely by seeking spine surgery.

Defendant reiterates arguments from his motion and argues that it would be unfair to undergo a psychological evaluation and argue that an evaluation by the defense is unnecessary.

“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).)

Defendant seeks leave to conduct a psychological evaluation of Plaintiff and argues good cause exists because Plaintiff will undergo surgery to implant a spinal cord stimulator, which requires a psychological evaluation before surgery.

Defendant’s proposed IME is set for January 26, 2023 with Dr. Manuel Saint Martin, who will conduct 8 tests, including the Minnesota Multiphasic Personality Inventory, the Millon Clinical Multiaxial Inventory, the Wechsler Adult Intelligence Scale, a Personality Assessment Inventory, a test of Non-Verbal Intelligence, a B-Test, a Test of Memory Malingering, and a Neuropsyi battery. (Separate Statement) Dr. Saint Martin testifies that he will perform a clinical psychiatric interview and neuropsychological assessment of Plaintiff is necessary in this action in order to diagnose Plaintiff’s psychological impairments. (Saint Martin Decl., ¶6.) Plaintiff has already undergone another IME with Dr. Srinath Samudrala, which involved taking x-rays, a medical history, and a physical and neurologic examination. (Motion, Exh. A.)

The parties dispute whether Plaintiff has placed his psychological or mental health condition at issue. The Court finds that he has not. Defendant does not dispute that there are no claims for mental or emotional damages by Plaintiff. Defendant argues that Plaintiff’s mental health is at issue because eligibility for the spinal cord stimulator depends on passing a psychiatric evaluation. (Boden Decl., ¶4.) However, this does not mean Plaintiff’s mental health is disputed in this litigation. It appears that a psychological examination is a prerequisite for obtaining a spinal cord stimulator.

Defendant argues that the IME is necessary to determine Plaintiff’s damages by determining whether the stimulator is necessary to treat Plaintiff’s injuries. Although Dr. Saint Martin states that he can determine if the spinal cord stimulator is reasonable or necessary, the proposed tests appear to be psychological tests that go to diagnosing Plaintiff’s psychological impairments which are not the subject of this litigation. Defendant offers no explanation as to why Plaintiff’s earlier physical examination was not sufficient to determine the extent of Plaintiff’s spinal injuries. Even if additional medical examination is necessary to determine the necessity of a spinal cord stimulator, Defendant fails to explain how a psychological evaluation would reveal if injuries to Plaintiff’s spine necessitated the implant.

Defendant argues that it would be unfair to allow Plaintiff to undergo a psychological evaluation and then deny Defendant the opportunity to conduct an evaluation. However, Plaintiff’s psychological evaluation would be used only to establish eligibility for the spinal cord stimulator, not as the basis for damages sought in this litigation.