Judge Jill Feeney, Case 21STCV00164 2023-03-22 Tentative Ruling

This is an action for negligence and premises liability arising from a slip and fall incident which took place in June 2019. Plaintiff Guadalupe Garcia filed her Complaint against Defendant Bodega Latina Corporation on January 4, 2021.

On February 14, 2023, the Court granted in part Defendant’s ex parte application to shorten time to hear the instant motion for Plaintiff’s second IME and to continue trial.

Defendant argues that there is good cause for a second IME of Plaintiff with Dr. Wesley King because Plaintiff underwent a new spine surgery in June 2022 and because Plaintiff retained her surgeons as experts.

Plaintiff argues that Plaintiff’s back injury has been at issue since the beginning of the case. Plaintiff provided back surgery records more than six months before the discovery cutoff and Defendant’s counsel waited until after the close of discovery to seek a second duplicative IME. Plaintiff also argues that she already submitted to one IME where Defendant’s physician performed over 100 physical exam tests on Plaintiff’s lower back. Plaintiff also argues that Defendant deliberately moved ex parte to continue trial while Plaintiff’s counsel was unavailable and that Defendant manufactured reasons for a trial continuance.

Defendant argues that Dr. Kvitne, the physician who initially examined Plaintiff, will not be opining as to her spine injuries and that he defers to Dr. King. Defendant also argues that it will suffer prejudice if Plaintiff does not undergo a second IME.

“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).)

Defendant’s counsel testifies that on January 17, 2022, Plaintiff underwent her first IME with Dr. Ronald Kvitne. (Aghakhani Decl., ¶4.) On June 8, 2022, Plaintiff revealed for the first time during deposition that she would undergo surgery with Dr. Ben Pradhan on June 20, 2022. (Id., ¶5.) Plaintiff produced the records pertaining to the surgery in July 2022. (Id., ¶6.) On January 10, 2023, Plaintiff designated Dr. Pradhan as an orthopedic expert. (Id., ¶7.) On January 25, 2023, Defendant requested that Plaintiff appear for a second IME on the grounds that Defendant did not get the opportunity to have a neurosurgeon evaluate Plaintiff’s spine after the June 2022 surgery. (Id., ¶7.) Plaintiff’s counsel refused the request. (Id.)

Plaintiff’s counsel testifies in opposition that Plaintiff served a demand letter in December 2020 stating a preexisting back injury was aggravated by her fall. (Siniscal Decl., ¶3.) Plaintiff confirmed that she suffered injuries to her back by stating so in her verified discovery responses served in August 2021. (Id., ¶4.) Defendant informally requested a second IME on January 25, 2023, just three days before the original discovery cutoff date. (Id., ¶11.)

Plaintiff’s pre-litigation demand letter dated December 3, 2020 and addressed to Defendant’s insurers shows that Plaintiff informed Defendant that her fall had aggravated a previous injury to her lumbar spine. (Opp., pdf p. 19-20.) Dr. Kvitne’s report also shows that Defendant was aware of Plaintiff’s past spine injury and that MRIs from March 2020 showed changes to the condition of Plaintiff’s spine. (Id., Exh. 4, pdf p. 59-74.) The report also noted that Plaintiff likely suffered injuries to her lumbar spine, among other body parts. (Id., p.73.)

Defendant’s counsel in reply states that Dr. Kvitne is an orthopedic surgeon and does not hold himself out as a spine surgeon. (Aghakani Reply Decl., ¶2.) Moreover, Defendant argues that it did not know for certain how much Plaintiff’s spine condition had deteriorated until Defendant received the surgical report in January 2023.

The evidence shows that Defendant knew about Plaintiff’s spine injuries as early as December 2020. Though not a spine surgeon, Dr. Kvitne nevertheless performed tests on Plaintiff’s lumbar spine. However, Defendant was not informed that Plaintiff was undergoing surgery to address a deterioration in her spine injury until her deposition in June 2022. The June 10, 2022 surgery constitutes a significant change in the condition of Plaintiff’s spine which justifies a second IME.