Judge: Kerry Bensinger, Case: 20STCV30587, Date: 2023-08-29 Tentative Ruling

Case Number: 20STCV30587    Hearing Date: October 10, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 10, 2023                               TRIAL DATE:  June 3, 2024

CASE:                                Matthew T. Childs v. Culver City

CASE NO.:                 20STCV30587

MOTION TO COMPEL PHYSICAL EXAMINATION

MOTION TO COMPEL MENTAL EXAMINATION

MOVING PARTY:               Defendant City of Culver City

RESPONDING PARTY:     Plaintiff Matthew T. Childs

I.          INTRODUCTION

            On August 12, 2020, Plaintiff, Matthew T. Childs, initiated this action against Defendant, City of Culver City (erroneously sued as “Culver City”), for injuries and damages arising from a bus versus pedestrian accident on March 12, 2020.  The bus was owned by Defendant and operated by Juan Fernando Chen Campos in the course and scope of his employment with Defendant.  Plaintiff alleges he suffered mild traumatic brain injury, cervical spine damage, and left elbow fracture.  Plaintiff also claims he experiences ongoing symptoms related to his traumatic brain injury, including attention and memory impairment, increased anxiety, irritability, and difficulty falling asleep.  Plaintiff underwent neck surgery in April 20, 2021.

            Relevant Background

            On August 1, 2022, Plaintiff stated during a deposition that he continues to suffer neck pain due to the accident.

            On October 19, 2022, orthopedic surgeon Dr. Ronald S. Kvitne performed a defense medical examination of Plaintiff.  In relevant part, Dr. Kvitne opined, “to a reasonable degree of medical certainty” that Plaintiff’s “neck pain complaints and subsequent surgery . . . on April 20, 2021 do not appear related to the motor vehicle versus pedestrian incident of March 12, 2020.”

            On November 17, 2022, neurologist Dr. Barry I. Ludwig performed a physical and neurological examination of Plaintiff.  Dr. Ludwig opined Plaintiff’s orthopedic treatment was  reasonable and necessary.  Dr. Ludwig further opined that Plaintiff’s memory impairment and poor attention relate to Plaintiff’s mild depression, anxiety, and impaired sleep, and not to any structural brain damage.

            On September 11, 2023, Defendant filed these motions to compel Plaintiff to submit to two additional examinations: (1) a physical examination with Dr. William H. Dillin regarding Plaintiff’s neck and spine injury, and (2) a neuropsychological examination with Dr. Talin Babikian regarding Plaintiff’s alleged emotional distress and psychological injuries.  Defendant does not seek sanctions.

            Plaintiff filed oppositions and Defendant filed replies. 

II.        LEGAL STANDARD TO COMPEL PHYSICAL EXAMINATION

            In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (Code Civ. Proc., § 2032.220, subd. (a).)  A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code Civ. Proc., § 2032.220, subd. (d)). 

             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., § 2032.310, subd. (a).)  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, subd. (a).) 

III.       DISCUSSION

            a. Motion to Compel Examination with Dr. William H. Dillin

            Defendant seeks to compel a medical examination with orthopedic surgeon Dr. William H. Dillin.  In support, Defendant points to Plaintiff’s testimony from August 1, 2022 where he states experiencing ongoing neck pain.  Further, Defendant contends Plaintiff did not inform Dr. Kvitne (who conducted Plaintiff’s first defense medical examination on October 19, 2022) of ongoing neck pain.  As Plaintiff has placed the condition of his neck in controversy, Defendant argues good cause exists to compel another medical examination with Dr. Dillin.

            Defendant does not demonstrate good cause.  The timeline of events indicates Plaintiff told Defendant of ongoing neck pain prior to Dr. Kvitne’s examination of Plaintiff.  Moreover, Defendant does not dispute Dr. Kvitne opined after conducting Plaintiff’s examination that Plaintiff’s “neck pain complaints and subsequent surgery . . . on April 20, 2021 do not appear related to the motor vehicle versus pedestrian incident of March 12, 2020.”  (Traut Decl., ¶ 6.)  Defendant had an opportunity to examine the extent of Plaintiff’s neck injury and did so.  As there is no indication Plaintiff underwent another surgery to his neck, Defendant does not show another medical examination regarding Plaintiff’s neck injury is warranted.

            b.  Motion to Compel Examination with Dr. Talin Babikian 

            Defendant argues good cause exists to compel a neuropsychological examination with neuropsychologist Dr. Talin Babikian.  Plaintiff testified that he continues to experience anxiety and panic attacks as a result of the accident.  Plaintiff also counts mild traumatic brain injury among his injuries.  As such, Defendant argues Plaintiff’s mental and psychological condition is in controversy.

            Plaintiff argues an examination with Dr. Talin Babikian is cumulative and duplicative to Dr. Ludwig’s neurology examination.  Although aspects of Dr. Babikian’s examination may overlap with Dr. Ludwig’s examination, as Defendant points out, neuropsychology is different than neurology. Dr. Babikian’s examination will cover aspects of Plaintiff’s condition for which Dr. Ludwig is not qualified.  As Plaintiff concedes, his mental condition is at issue.  Defendant shows good cause exists to compel a neuropsychological examination with Dr. Babikian.

IV.       CONCLUSION

            The motion to compel physical examination with Dr. Dillin is denied.

            The motion to compel neuropsychological examination with Dr. Talin Babikian is granted.  Plaintiff Matthew T. Childs is ordered to attend an examination with Dr. Babikian at 11845 W. Olympic Blvd., Suite 705W, Los Angeles, CA 90064 within 30 days of the date of this order.

Moving party to give notice. 

Dated:   October 10, 2023                                         ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.