Judge Jill Feeney, Case 20STCV28992 2023-01-12 Tentative Ruling

Motion for Leave of Court to Conduct Plaintiff’s Attendance at an Additional Physical Examination filed by Defendant The Pig N’ Whistle

This is an action for negligence arising from an incident where a disco ball fell from Defendant’s premises and struck Plaintiff in the head. Plaintiff Karma McCain filed her Complaint against Defendant The Pig N’ Whistle on July 31, 2020.

Defendant The Pig N’ Whistle filed the instant motion to continue trial and all related dates on October 31, 2022.

Defendants filed a second motion to compel a second independent medical examination (“IME”) of Plaintiff on October 31, 2022.

Defendant seeks to conduct two IMEs of Plaintiff to evaluate injuries to her spine and her hearing loss, tinnitus, dizziness, and eye tracking issues. Plaintiff previously submitted to a neuropsychological examination to evaluate her memory loss and difficulty concentrating. Plaintiff also stipulated to a neurological examination to evaluate her dizziness and post-concussive syndrome. Defendant argues that it has the right to conduct reasonable discovery and that Plaintiff has placed these conditions at issue.

Plaintiff argues that there is no good cause to compel Plaintiff to undergo four separate medical examinations. Plaintiff argues that Defendant knew of Plaintiff’s injuries in 2021 and unreasonably delayed making this motion. Additionally, four medical examinations are overly burdensome, unreasonable, and harassing. Plaintiff also argues that the motion is moot because the proposed IME date has already passed.

Defendant argues the law does not limit Defendant to only one IME where good cause exists. Defendant then reiterates arguments from its motion.

“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 to take (1) an orthopedic examination of Plaintiff to evaluate her spinal injuries, and (2) an otolaryngological examination of Plaintiff to evaluate her hearing loss, tinnitus, dizziness, and eye tracking issues. Plaintiff previously submitted to a neuropsychological examination to evaluate her memory loss and difficulty concentrating. Plaintiff has already stipulated to submitting to a neurological examination to evaluate her dizziness and post-concussive syndrome.

Defendant’s motion is supported by a declaration from Counsel and copies of Plaintiff’s discovery responses. Defendant’s counsel testifies that Plaintiff testified during a deposition in November 2021 that she suffers from tinnitus and eye tracking issues which she received treatment for from her ENT. (Fazel Decl. ¶¶2-3.) Plaintiff’s medical records produced in October 2022 show that Plaintiff was diagnosed with spinal injuries and treated with a cervical epidural injection. (Fazel Decl., ¶6.)

Defendant offers sufficient facts to explain why the IMEs are necessary. Plaintiff suffers from ongoing medical issues arising from the subject incident and continues to seek treatment. Plaintiff has placed her injuries at issue and seeks damages for past and future medical expenses. The IMEs are not duplicative. Defendant presents specific facts to explain why the IMEs are necessary, Defendant has a significant discovery interest in the IMEs.

Plaintiff does not dispute that she placed her injuries at issue by seeking damages for the injuries caused by a disco ball falling and striking her head. Plaintiff primarily argues that four separate IMEs are overly burdensome. However, Defendant’s discovery interest outweighs Plaintiff’s interest in avoiding more than two exams. Although Plaintiff contends that the information about her medical condition may be gained through records subpoenas and written discovery, Defendant is entitled to evaluate Plaintiff’s injuries because they are at issue in this case.

Plaintiff’s argument that Defendant delayed bringing this motion is without merit. Motions to compel IME may be heard up to 15 days before trial. (Code Civ. Proc., section 2024.020(a).) Defendant noticed Plaintiff’s orthopedic IME for February 23, 2023. Given that trial is set for May 2023, there is sufficient time to complete Plaintiff’s IMEs before trial and discovery cutoff dates.