Judge: Jill Feeney, Case: 20STCV43806, Date: 2023-03-15 Tentative Ruling
Case Number: 20STCV43806 Hearing Date: March 15, 2023 Dept: 30
Department 30, Spring Street Courthouse
March 15, 2023
20STCV43806
Motion for an Order Compelling Plaintiff to Complete Physical Examination at Additional Session of Physical Examination
DECISION
The motion is granted.
Plaintiff is ordered to appear for examination on May 18, 2023 at 10:00 a.m. at the Offices of Dr. Stephen Kay, 2080 Century Park East, Suite 1204, Los Angeles, CA 90067.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
This is an action for negligence. Plaintiff alleges that while he was a patron of Defendant’s business, the chair he was sitting on broke, causing his injuries. Plaintiff Lamont McQueen filed his Complaint against M’Dears #2 Bakery & Bistro LLC on November 16, 2020.
On February 14, 2023, Defendant filed the instant motion to compel Plaintiff to appear at an additional physical examination.
Summary
Moving Arguments
Defendant argues that an additional IME of Plaintiff with Dr. Stephen P. Kay is needed because Dr. Kay could not complete the initial IME because Plaintiff had undergone shoulder surgery one week prior to the examination. Defendant argues the IME is necessary for Defendant to determine Plaintiff’s damages.
Opposition Arguments
Plaintiff argues that discovery is now closed and Defendant should not be allowed to conduct a third IME of Plaintiff.
Reply Arguments
Defendant explains that the first time Plaintiff appeared for an IME was at the misdirection of his own counsel. Defendant had canceled the IME and Plaintiff’s counsel directed Plaintiff to appear on the canceled date. Defendant reiterates arguments from its motion.
Legal Standard
“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 “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
Defendant moves to compel Plaintiff to appear for an additional medical examination.
Defendant’s counsel testifies that on January 10, 2022, Defendant noticed Plaintiff’s physical examination with Dr. Kay, an expert in orthopedic surgery, to evaluate Plaintiff’s back, shoulder, and neck injuries. (Maryanski Decl., ¶7.) On February 24, 2022, Defendant’s counsel informed Plaintiff’s counsel that Dr. Kay was no longer available on the original IME date and rescheduled the IME to April 21, 2022, two days after the originally noticed date. (Id., ¶8.) Plaintiff’s counsel acknowledged the date. (Id.) On April 19, 2022, the original IME date, Plaintiff appeared for his IME at Dr. Kay’s office and incurred cancellation fees for the observer nurse who accompanied Plaintiff. (Id., ¶10.) Plaintiff’s counsel alleged Defendant failed to properly serve an amended notice. (Id.)
On April 21, 2022, Plaintiff appeared for his IME with Dr. Kay. (Kay Decl., ¶3.) Plaintiff appeared in a sling with a large bandage on his right shoulder. (Id.) Plaintiff had undergone shoulder surgery one week prior to the examination and could not move his shoulder. (Id., ¶¶3-4.) Dr. Kay could not complete his examination because Plaintiff could not move his shoulder. (Id., ¶4.) Additionally, Plaintiff’s nurse observer prevented Dr. Kay from taking an appropriate medical history pertaining to his claimed injuries. (Id., ¶5.)
The evidence shows that Dr. Kay could not complete Plaintiff’s IME due to his shoulder injury and Plaintiff’s nurse observer’s interference. Defendant is entitled to Plaintiff’s medical history related to his injuries because he has placed those injuries at issue by seeking damages for his injuries. Additionally, Defendant has a substantial discovery interest in evaluating Plaintiff’s injuries because the evaluation is necessary to determine Plaintiff’s damages. Therefore, the Court finds there is good cause for Plaintiff to appear for an additional IME.
Although Plaintiff argues that this motion should be denied because discovery is closed, Defendant’s ex parte motion to continue was granted and a second IME is permitted pursuant to the Court’s order in connection with the ex parte. Plaintiff also argues that an additional IME is not warranted because this is Plaintiff’s third IME. However, Plaintiff’s first appearance was due to a miscommunication between the parties’ counsel. The issue does not change the fact that Defendant has a significant interest in evaluating Plaintiff’s injuries.
