Judge: Jill Feeney, Case: 20STCV22946, Date: 2023-01-20 Tentative Ruling
Case Number: 20STCV22946 Hearing Date: January 20, 2023 Dept: 30
Department 30, Spring Street Courthouse
January 20, 2023
20STCV22946
Motion to Compel Independent Medical Examination of Plaintiff filed by Defendants Michael Angelo De Sarro and Rosemarie Josephine Ceravolo
DECISION
The motion is denied without prejudice.
The Court urges the parties to meet and confer on this issue to try to avoid any unnecessary litigation. It seems likely that Moving Defendants will be able to establish the need for a second examination in the future since there is a significant difference between a medical doctor and a psychologist and it appears that Plaintiff is claiming physical harm as well as mental harm as a result of the gas exposure.
Moving party to provide notice.
Background
This is an action for negligence arising from a gas leak which took place on Defendants’ premises in December 2019. Plaintiff Prabhat Gautam filed his Complaint against Defendants Airbnb, Inc., Michael Angelo de Sarro, Rosemarie Josephine Ceravolo, and the Southern California Gas Company on June 17, 2020.
Defendants Michael Angelo de Sarro and Rosemarie Josephine Ceravolo (“Moving Defendants”) filed a motion to compel a second independent medical examination (“IME”) of Plaintiff on December 22, 2022.
Trial is set for June 2, 2023.
Summary
Moving Arguments
Moving Defendants seek to perform a second IME of Plaintiff because the first IME was a neuropsychological exam focusing on Plaintiff’s mental symptoms associated with his nervous system injury. Moving Defendants argue good cause exists for a neurological examination focusing on the physical components of Plaintiff’s brain injury because Plaintiff alleges he experiences neurological defects as a result of natural gas exposure. Additionally, the IME will confirm whether Plaintiff’s treatment has been beneficial and whether further treatment is necessary. Plaintiff was previously examined by a neurologist over the phone in April 2020 and by another neurologist via telemedicine in December 2021. Moving Defendants argue that these earlier examinations were insufficient because the physicians conducted their examinations over the phone and did not consider Plaintiff’s blindness.
Opposition Arguments
Plaintiff argues that Moving Defendants’ counsel is not a physician and is thus unqualified to determine that Plaintiff’s earlier encounters with neurologists were improper.
Reply Arguments
Moving Defendants reiterate arguments from their motion.
Legal Standard
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., § 2032.320, subds. (a), (d).)
Discussion
Moving Defendants seek to take a neurological examination of Plaintiff and argue that good cause exists for the examination because Plaintiff claims he suffers from neurological defects caused by his exposure to natural gas. Moving Defendants submitted a meet and confer declaration stating the parties met and conferred and could not resolve these issues. (Quardri Decl., ¶7.)
Plaintiff has already submitted to a neuropsychological examination with Dr. Swain (defense expert) and was previously examined by neurologists Dr. Haider and Dr. Okhovat . (Quadri Decl., 6.) Dr. Okhovat was Plaintiff’s expert and provided an initial evaluation of Plaintiff’s injuries. (Opp., p.2.) Dr. Haider was also Plaintiff’s expert (Opp. Pg. 2.)
The examinations by Plaintiff’s experts are irrelevant here. Moving Defendants are entitled to employ their own experts. The issue here is whether good cause has been established justifying a second IME examining neurological issues as opposed to the neuropsychological issues already explored by Moving Defendants’ expert, Dr. Swain.
For the reasons set forth below, the Court finds that Moving Defendants have not established good cause. Thus, the motion is denied without prejudice.
The motion does not specify the time, place, manner, conditions, scope, diagnostic tests, and nature of the proposed examination as required by Code of Civil Procedure Sections 2032.310(a) and 2032.320(d).
Moreover, Moving Defendants fail to provide evidence that the tests/evaluations (whatever they are) to be performed by Dr. Whitman are different from those performed by Dr. Swain. Moving Defendants also fail to explain why these particular tests are necessary and what information they will yield that is different from the information obtained by Dr. Swain, who is a neuropsychologist. The Declaration of Dr. Swain, attached to Moving Defendants’ reply, does not answer these questions but rather focuses mainly on the inadequacies of the examinations performed by Plaintiff’s experts.
