Judge Lee S. Arian, Case Number: 20ATCV37658, Date: 2025-01-30 Tentative Ruling

This case concerns injuries that Plaintiff Damian Lesko allegedly suffered while participating in a physical education activity at Arroyo Seco Junior High School. The school lacked a designated track, and students were required to run on muddy and wet grass. During the activity, Damian suffered an avulsion fracture in his left hip/groin area, experiencing severe pain. A doctor later diagnosed him with Complex Regional Pain Syndrome (CRPS), which has allegedly left him permanently disabled.

Plaintiff has agreed to undergo an independent medical examination (IME) with Dr. Joshua Prager, M.D., M.S., a board-certified pain management physician specializing in CRPS. Defendant William S. Hart Union High School District now moves for leave to conduct three additional IMEs: orthopedic, medical-physiatric, and psychiatric. Plaintiff filed an opposition.

Defendant’s notices for the orthopedic and medical-physiatric examinations are overly broad and fail to comply with Code of Civil Procedure § 2032.310(b), which requires that a motion for an examination specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the examiner.

The taking of a general medical history of Plaintiff and Plaintiff’s alleged injury(ies) in controversy claimed in this Action, the Plaintiff’s subjective complaints and complaints in general, an examination of each part of Plaintiff’s body, including his left hip, left leg, and left arm, as well as any other area of Plaintiff’s body that he allegedly sustained injuries in connection with the accident occurring on or about January 13, 2020.

This examination may rightfully entail an examination that includes, but is not limited to, questions relating to: The nature and extent of the injuries alleged to have been sustained in the accident that is the subject matter of this Action; present or past symptoms and conditions relating to the injuries which are the subject of this Action; relevant medical history, including the manner in which the alleged injuries were sustained; relevant prior injuries; Plaintiff’s relevant occupational history and/or physical activities; and a physical examination.

Plaintiff shall be required to cooperate with the doctor in the use of accepted diagnostic instruments, tests, manipulations, and techniques.

Defendant’s notice fails to comply with Code of Civil Procedure § 2032.310(b) because it does not adequately specify the manner, conditions, scope, and nature of the proposed examination. The statute requires disclosure of the diagnostic tests and procedures that will be utilized, ensuring transparency regarding the methods and extent of the examination. (CCP § 2032.220(c).) Here, the notice provides only broad and generalized descriptions without identifying any specific tests or procedures. It merely states that Plaintiff will be required to cooperate with "accepted diagnostic instruments, tests, manipulations, and techniques".

Moreover, the notice fails to define the scope of the examination by allowing the examiner to evaluate not only Plaintiff’s left hip, left leg, and left arm but also "any other area of Plaintiff’s body that he allegedly sustained injuries in connection with the accident." This open-ended language does not set clear limits, giving the examiner broad discretion to assess areas beyond those at issue in the case.

Critically, without this specificity, the Court cannot meaningfully evaluate whether the physiatric examination is duplicative of Dr. Prager’s IME for CRPS. Dr. Prager’s examination already includes a multi-disciplinary approach to evaluating Plaintiff’s condition.

Defendant has not demonstrated that a separate medical - physiatric (IME) is necessary or distinct from the IME already being conducted for CRPS. The evidence cited by Defendant primarily relates to Plaintiff’s CRPS diagnosis and associated symptoms, which fall within the scope of the existing CRPS-focused IME.

Defendant relies on Plaintiff’s allegations and medical history, which consistently attribute his ongoing pain and functional limitations to CRPS. Plaintiff has alleged that the Incident caused an avulsion fracture, leading to chronic pain, neurological symptoms, and ultimately a CRPS diagnosis. Defendant also cites Plaintiff’s deposition testimony, where he states that his worsening condition is due to nerve damage from his injuries, culminating in CRPS.

The conditions Defendant lists—including Plaintiff’s left hip avulsion fracture, torn tendon, hip pain, leg pain, back pain, and neurological symptoms—are already encompassed within the CRPS diagnosis. CRPS is a complex chronic pain condition that involves musculoskeletal dysfunction, nerve damage, and mobility impairments. Since Plaintiff’s symptoms, as described in Defendant’s motion, are directly related to CRPS, Defendant has not shown why a separate physiatric IME is necessary.

In the Reply, Defendant argues that Dr. Hedge’s examination will be limited to his expertise as a physical medicine and rehabilitation specialist. (Declaration of Dr. Thomas Hedge, ¶ 4.) Defendant further asserts that Dr. Hedge will evaluate Plaintiff in the context of a potential spinal cord injury. (Id., at ¶ 3.) However, Dr. Prager’s declaration directly contradicts the claim that a separate examination is necessary. Dr. Prager states, “I also perform spinal diagnostics and therapeutics. In that regard, I direct a comprehensive inter-disciplinary rehabilitation program for the treatment of Complex Regional Pain Syndromes (‘CRPS’) at UCLA Medical Plaza.” Dr. Prager’s practice thus already takes a multi-disciplinary approach to evaluating and treating CRPS, which includes spinal diagnostics and therapeutics

Accordingly, Defendant’s request for leave to conduct a medical-physiatric IME is denied.

Plaintiff alleges orthopedic injuries, including a left anterior inferior iliac spine avulsion fracture, a torn left tendon, and a fracture to his lower spine. At deposition, Plaintiff testified that he sustained an avulsion fracture in his left hip, which tore off a tendon and a piece of his hip bone, as well as a spinal fracture. These injuries involve structural damage that falls within the expertise of an orthopedic specialist and appear to be distinct from Plaintiff’s allegation of CRPS and requires evaluation from an orthopedic specialist.

Furthermore, Dr. Prager has confirmed that orthopedic injuries play a key role in evaluating Plaintiff’s CRPS diagnosis and its causation. Dr. Prager states that Plaintiff’s avulsion fracture, torn tendon, and potential spinal fracture appear to be orthopedic in nature and were not treated surgically. (Prager Decl., ¶ 4.) He further explains that whether Plaintiff’s pain symptoms are disproportionate to his injuries, a critical factor under the Budapest Criteria for diagnosing CRPS, depends largely on the severity and mechanism of his orthopedic injuries. (Ibid.) Without an orthopedic evaluation, Defendant and the Court would lack key medical evidence necessary to assess the validity of Plaintiff’s CRPS diagnosis and its connection to his orthopedic trauma. Dr. Prager specifically requested that Defendant seek an orthopedic examination with Dr. Grogan, a pediatric orthopedic specialist, to provide a full and scientifically sound evaluation of Plaintiff’s claims. (Id., ¶ 5-6.)

Accordingly, the Court finds good cause for an orthopedic examination, subject to Defendant’s service of a Code-compliant notice specifying the precise tests to be performed, as required under CCP § 2032.310(b).

Defendant has not demonstrated good cause for the vocational expert and life care planner to attend the IME. These experts can evaluate Plaintiff’s condition and formulate their opinions by reviewing Defendant’s medical expert’s report, deposition testimony, and Plaintiff’s medical records. Their presence at the IME is unnecessary and exceeds the scope of a medical examination under Code of Civil Procedure § 2032.310, as they are not medical professionals conducting the evaluation.

The notice is sufficient as it lists a limited and clearly defined set of psychometric tests to be performed, including Green’s Word Memory Test, Wechsler Intelligence Scale for Children-Fourth Edition, Wechsler Memory Scale-Fourth Edition, Trauma Symptom Inventory-2, Minnesota Multiphasic Personality Inventory-A, Beck Depression Inventory-2, and Beck Anxiety Inventory, among others. These tests are standardized and widely used in clinical psychology and neuropsychology to assess cognitive functioning, memory, emotional distress, and psychological symptoms. By specifying these tests, the notice complies with Code of Civil Procedure § 2032.310(b), which requires disclosure of the manner, conditions, scope, and nature of the examination.

Plaintiff has placed his mental and emotional condition directly at issue through his allegations and testimony. In the Complaint, Plaintiff alleges that he has suffered and continues to suffer anxiety, extreme emotional distress, depression, shock, and injury to his person. Plaintiff’s discovery responses further confirm that he is seeking damages for emotional distress, trouble sleeping, loss of appetite, anxiety, and frustration arising from the Incident. (Rynerson Decl., ¶ 4, Ex. B.) At deposition, Plaintiff testified that the Incident caused him serious and debilitating emotional and mental health problems, stating that he does not dream and suffers from significant stress and anxiety. (Rynerson Decl., ¶ 5, Ex. C – Deposition of Plaintiff, 165:8-12; 166:7-8.) Although he conceded that he had anxiety before the Incident, he testified that the Incident worsened his condition and has led to extreme social anxiety and severe depression. (Id., at 166:8-9.)

Plaintiff has not stipulated that he is limiting his emotional distress claims to mere "garden variety" distress, meaning he is seeking damages beyond typical emotional distress claims. Courts have recognized that when a plaintiff alleges significant psychological harm, including severe anxiety, depression, and emotional trauma, a mental examination is warranted to fairly evaluate the extent and causation of those claims. Given Plaintiff’s discovery responses and deposition testimony, where he attributes substantial emotional and psychological effects to the Incident, good cause exists for the requested mental examination, as his mental and emotional state is directly at issue.

Furthermore, Plaintiff’s orthopedic examination and CRPS examination are primarily medical and physical in nature, focusing on structural injuries, musculoskeletal function, and pain management. These evaluations do not assess cognitive, psychological, or emotional distress symptoms, which are the subject of the proposed mental examination. The psychological tests listed in the notice, including standardized measures of memory, cognitive function, emotional distress, and psychological well-being, are distinct from the medical and physical examinations Plaintiff is already undergoing. Accordingly, the court grants Defendant leave to perform the mental examination.

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’s 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.

Hon. Lee S. Arian

Judge of the Superior Court