Judge: Joel L. Lofton, Case: 23AHCV00377, Date: 2024-02-29 Tentative Ruling


Case Number: 23AHCV00377    Hearing Date: February 29, 2024    Dept: X

   Tentative Ruling

 

Judge Joel L. Lofton, Department X

 

 

HEARING DATE:      February 29, 2024                                           TRIAL DATE: No date set.

                                                          

CASE:                         JAMES CALIBORNE, an individual, v. MATTHEW LENOCI, an individual and DOES 1 to 25, inclusive.  

 

CASE NO.:                 23AHCV00377

 

           

 

MOTIONS TO COMPEL ADDITIONAL EXAMINATIONS

 

MOVING PARTY:               Defendant Matthew Lenoci

 

RESPONDING PARTY:      Plaintiff James Claiborne

 

SERVICE:                              Filed January 8, 2024

 

OPPOSITION:                       Filed February 7 and 15, 2024

 

REPLY:                                   Filed February 21, 2024

 

RELIEF REQUESTED

 

             Defendant moves for an order compelling Plaintiff to appear for four physical or mental examinations.

 

BACKGROUND

 

             This case arises out of Plaintiff James Claiborne’s (“Plaintiff”) claim that he suffered injuries because of a motor vehicle collision caused by Defendant Matthew Lenoci. Plaintiff filed this complaint on February 2, 2023.

 

TENTATIVE RULING

             

            Defendant’s motions to compel Plaintiff to submit to further physical examinations are DENIED.

 

            Defendant’s motion for leave to conduct a mental examination of Plaintiff is GRANTED in accordance with this order.

 

            Plaintiff’s requests for sanctions are denied.

 

LEGAL STANDARD

 

            Code of Civil Procedure section 2032.310, subdivision (a), provides: “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.” “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Code Civ. Proc. § 2032.320, subdivision (a).)

 

DISCUSSION

 

            Defendant files four separate motions seeking to compel Plaintiff to submit to additional physical or mental examinations. Plaintiff provides that Defendant previously served a demand for physical examination. (Berkley Decl. ¶ 8.) Plaintiff provides he appeared for the examination on January 5, 2024. (Id. ¶ 9.) The January 5, 2024, examination was conducted by Dr. Lorne Label, a neurologist. (Id. ¶ 8, Exhibit 4.) Plaintiff provides that Dr. Label conducted a physical and neurological examination. (Id. ¶ 11.) The previous demand for examination provided that Dr. Label’s examination would include x-rays, CT scans, and/or MRI studies. (Id. ¶ 8, Exhibit 4.)

 

            Defendant subsequently filed four motions to compel additional examinations. Defendant seeks an order compelling Plaintiff to submit examinations with the following physicians: (1) Charles Rosen, M.D., an orthopedist, (2) Dr. Marc Cohen, an otolaryngologist, (3) Ted Evans, M.D., a neuropsychologist, and (4) Alfredo Sadum, M.D., an ophthalmologist. 

 

            “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff . . . if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258.) In response to Defendant’s discovery requests, Plaintiff provided he suffered from the following injuries:

 

Traumatic brain injury (head), head loss of consciousness, head post concussive syndrome, headache, head difficulty concentrating, head difficulty focusing, head blurred vision both eyes, head ringing in both ears, head partial loss of hearing in both ears, head dizziness, head room is spinning, head confusion, head memory issues, head nausea, head agitation, head shocked, head scared, head disoriented, head mood swings, face, neck, neck stiffness, upper back, upper back stiffness, mid back, mid back stiffness, low back, both shoulders, abdomen, both thighs, both thighs stiffness, both thighs weakness, both thighs tautness, both buttocks, groin, testicles, testicles varicocele, right arm, right arm numbness, right arm tingling, left arm, left arm weakness, left arm numbness, left arm tingling sensation, left arm paresthesia, both legs, both legs difficult walking, sleep interference due to pain to the neck, and low back, insomnia (secondary to orthopedic injuries), tired (secondary to orthopedic injuries), vomiting (secondary to orthopedic injuries), anxious (secondary to orthopedic injuries), nervous (secondary to orthopedic injuries), flashbacks (secondary to orthopedic injuries), irritated (secondary to orthopedic injuries), easy to anger (secondary to orthopedic injuries), appetite decreased (secondary to orthopedic injuries), and emotional injuries (pain and suffering) secondary to orthopedic injuries.

 

(Berkley Decl. ¶ 5, Exhibit 1.)

 

            In Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255, the Court noted that multiple medical examinations may be ordered to cover the various types of a plaintiff’s injury. The Court also noted that “multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations.” (Ibid.) Lastly, the court noted that “good cause is a factual question which the trial court should resolve in the first instance.”

 

            Defendant seeks three physical examinations and one mental examination. In regards to additional physical examinations, Defendant seeks to compel Plaintiff to submit to additional examinations with an ophthalmologist, an orthopedist, and an otolaryngologist. Notably, Defendant provides that each of the specialists will conduct similar tests, including x-rays, CT scans, and/or MRI studies, already conducted by Dr. Label at the previous physical examination.

 

            Defendant has failed to set forth good cause for further physical examinations. For each of the three physical examinations sought, Defendant merely argues that the specialist is necessary because their specialties relate to injuries alleged by Plaintiff. However, Defendant’s arguments are broad and are not supported by any citation to evidence. Further, Defendant’s arguments go to whether Plaintiff’s has placed his condition at controversy, which is not contested. Defendant has failed to address why good cause exists for the additional physical examinations sought.

 

            Defendant is seeking three additional specialists who will supposedly administer the same examinations, x-rays, CT scans, and MRI studies, already conducted by a specialist chosen by Defendant but fails to explain why those further examinations are supported by good cause. For instance, Defendant does not address how an x-ray conducted by an otolaryngologist would produce new or different insight to an x-ray already conducted by Dr. Label. While consultation with a specialist would clearly provide additional information, Defendant has failed to demonstrate good cause for further physical examinations, especially given that the additional specialists will purportedly use the same examinations already administered.  Could Defendant not obtain the same level of information sought by simply providing the previously obtained test results to these additional specialists?

 

            As to the sought mental examination, Plaintiff served his objections but agreed to allow the examination to go forward. (Berkley Decl. ¶ 14, Exhibit 10.)

 

            “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.” (Code Civ. Proc. § 2032.320, subdivision (d).)

 

            The Court grants Defendant’s motion for leave to conduct a mental examination of Plaintiff. As a preliminary comment, the court notes that the date of examination has apparently changed from Defendant’s previous request and this present motion. The examination shall take place on March 18, 2024, at 8:30 a.m. at 5363 Balboa Boulevard, Suite 437 Encino, CA 91316. The examination shall be conducted by Ted Evans, M.D., and shall be conducted for assessing Plaintiff’s mental condition and claims of mental injuries.

 

The examinations will be drawn from the following tests: (1) Green's Word Memory Test (2) Dot Counting Test (3) Wechsler Intelligence Scale for Children-Fourth Edition (4) Wechsler Memory Scale-Fourth Edition (5) Wide Range Achievement Test-4th Edition (6) Grooved Pegboard (7) TOMM (8) Finger Tapping Test (9) Stroop Color-Word Test (10) Controlled Oral Word Association Test (11) Boston Naming Test (12) Trailmaking Test (13) Auditory Consonant Trigrams (14) Rey Auditory Verbal Learning Test (15) Rey Complex Figure Test (16) California Verbal Learning Test-2 (17) Wisconsin Card Sorting Test (18) Trauma Symptom Inventory-2 (19) Minnesota Multiphasic Personality Inventory-A (20) Beck Depression Inventory-2 (21) Beck Anxiety Inventory.

 

CONCLUSION

 

            Defendant’s motions to compel Plaintiff to submit to further physical examinations are DENIED.

 

            Defendant’s motion for leave to conduct a mental examination of Plaintiff is GRANTED in accordance with this order.

 

            Plaintiff’s requests for sanctions are denied.

 

            May 20th motion to compel mental examination is taken off calendar.

 

            Moving party to provide notice.

 

           

Dated:   February 29, 2024                                         ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court




Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  alhdeptx@lacourt.org