Judge: Kerry Bensinger, Case: 21STCV39938, Date: 2023-10-06 Tentative Ruling

Case Number: 21STCV39938    Hearing Date: October 6, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     October 6, 2023                                 TRIAL DATE:  November 6, 2023

CASE:                                Stacy Fields v. Los Angeles County Metropolitan Transportation Authority, et al.

CASE NO.:                 21STCV21291

MOTION TO COMPEL ANSWERS TO DEPOSITION

MOTION TO COMPEL SECOND INDEPENDENT MEDICAL EXAMINATION

MOVING PARTY:               Defendant Los Angeles County Metropolitan Transportation Authority

RESPONDING PARTY:     Plaintiff Stacy Fields

I.          INTRODUCTION

            On October 29, 2021, Plaintiff, Stacy Fields, filed a form complaint against defendant Los Angeles County Metropolitan Transportation Authority (“LACMTA”) for injuries Plaintiff sustained on an LACMTA bus.  Plaintiff alleges that, on December 25, 2020, as he boarded the bus, the bus operator closed the bus doors on him.  Plaintiff alleges he sustained injuries to his back and suffers headaches.

            Motion to Compel Plaintiff’s Answers to Deposition Questions

            On June 10, 2023, LACMTA deposed Plaintiff.  At the deposition, Plaintiff’s counsel instructed Plaintiff not to answer certain questions. 

            On August 28, 2023, LACMTA filed this motion to compel Plaintiff’s answers to the questions he was instructed not to answer at deposition.  LACMTA seeks sanctions against Plaintiff and his counsel. 

            Motion to Compel Plaintiff’s Second Independent Medical Examination

            On February 15, 2023, Plaintiff was examined by LACMTA’s expert, Dr. Thomas J. Grogan.  Dr. Grogan, an orthopedic surgeon, did not examine Plaintiff for neurological symptoms.  Thereafter, LACMTA attempted to meet and confer with Plaintiff’s counsel regarding a second Independent Medical Examination (IME).  LACMTA seeks to learn the extent of Plaintiff’s neurological injuries.  Plaintiff refused to stipulate a second IME.

            On August 28, 2023, LACMTA filed this motion to compel Plaintiff to submit to second IME.  LACMTA does not seek sanctions.  Plaintiff opposes and LACMTA replies. 

II.        LEGAL PRINCIPLES

            a. Compel Answers to Deposition Questions

            If a deponent fails to answer any questions or to produce any document under his or her control, the noticing party may move for an order compelling the answer or production.  (Code Civ. Proc., § 2025.480, subd. (a).)  This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 20225.480, subd. (b).)  A motion to compel answers at a deposition and/or to compel production of documents at a deposition requires a separate statement, which is a separate document that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.  The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.  (Cal. Rules of Court, Rule 3.1345.) 

            b. 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 Plaintiff’s Answers to Deposition Questions

            LACMTA filed a Status Report on September 25, 2023 indicating that counsel for the parties agreed on the questions that will be asked of Plaintiff.  LACMTA later filed a Reply Brief indicating that LACMTA is proceeding with this Motion because Plaintiff’s counsel had not provided dates for Plaintiff’s deposition to take place nor responded to LACMTA’s deposition notice.  LACMTA noticed Plaintiff’s deposition for October 11, 2023 at 1:30 p.m.  LACMTA now requests the Court to compel Plaintiff’s appearance at deposition on October 11, 2023, 1:30 p.m., so that LACMTA may ask Plaintiff the questions that the parties had agreed upon.

            Given the apparent agreement between the parties regarding the questions Plaintiff will be asked at deposition (see Reply, Exhibit 1), and the lack of opposition to this Motion, the Court finds LACMTA is entitled to an order compelling Plaintiff’s appearance at deposition and to answer the agreed upon questions. 

            The remaining issue is whether to impose monetary sanctions.  Given that the parties agreed on the questions to be asked of Plaintiff, the Court declines to impose sanctions against Plaintiff or her counsel.  If, however, at the hearing, Plaintiff proceeds to oppose this Motion, the Court will consider LACMTA’s request.

            b.  Motion to Compel Plaintiff’s Second IME 

            LACMTA seeks an order compelling Plaintiff’s neurological examination with Dr. Gabriel E. Hunt, Jr. on October 20, 2023, at 9:00 p.m.  LACMTA argues a second IME should be compelled because Plaintiff has placed his neurological condition at-issue.  In support, LACMTA points to Plaintiff’s discovery responses indicating Plaintiff suffers headaches as a result of the incident, (Plaintiff’s Responses to Form Interrogatory, Set One, No. 6.2, Special Interrogatory, Set One, No. 18, and Special Interrogatory, Set Two, No. 32), and Plaintiff’s designation of retained expert witness Dr. Jan Mathias Eckermann, a brain and spine surgeon who is Board certified in neurological surgery.    

            The Court finds good cause exists to compel Plaintiff’s attendance for a neurological examination with Dr. Hunt, Jr.  By consistently stating in his responses to LACMTA’s discovery that he suffers from headaches as a result of the incident, Plaintiff has placed his neurological condition at-issue.  Moreover, Plaintiff has retained an expert in Dr. Eckermann that has a background in neurological surgery.  Contrary to Plaintiff’s contention, the foregoing shows LACMTA is entitled to a second IME to counteract Plaintiff’s anticipated damages claims for neurological injuries.  Absent an indication that Plaintiff does not seek to recover damages for his neurological injuries, Plaintiff must attend the neurological examination with Dr. Hunt, Jr.

IV.       CONCLUSION

            The Motion for an Order Compelling Plaintiff’s Answer to Deposition Questions is granted.  Plaintiff Stacy Fields is ordered to appear for deposition on October 11, 2023, at 1:30 p.m. via Zoom conference.

            The request for sanctions is denied.

            The Motion to Compel Medical Examination of Plaintiff is granted.  Plaintiff Stacy Fields is ordered to attend a neurological examination with Dr. Gabriel E. Hunt, Jr. on October 20, 2023, 9:00 a.m., at 444 S. San Vicente Blvd, Ste. 800, Los Angeles, CA 90048.   

Moving party to give notice. 

Dated:   October 6, 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.