Judge Lee S. Arian, Case Number: 21STCV16516, Date: 2023-10-24 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV16516, Date: 2023-10-24 Tentative Ruling

Case Number: 21STCV16516 Hearing Date: October 24, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: October 24, 2023 TRIAL DATE: March 14, 2024

CASE: Leonard Graham v. Ford Apartments, L.P., et al.

CASE NO.: 21STCV16516

MOTION TO COMPEL PLAINTIFF TO ATTEND MULTIPLE

INDEPENDENT MEDICAL EXAMINATIONS

MOVING PARTY: Defendants Ford Apartments, L.P., et al.

RESPONDING PARTY: Plaintiff Leonard Graham

I. INTRODUCTION

On May 3, 2021, Plaintiff, Leonard Graham, filed a complaint against Defendants, Ford Apartments, L.P. (“Ford Apartments”) and SRO Housing Corporation (“SRO Housing”), for negligence, premises liability, and negligent hiring, retention and supervision. Plaintiff was a tenant at Defendants’ property. Plaintiff alleges he was attacked at the property and sustained injuries, including a traumatic brain injury and erectile dysfunction. Plaintiff later filed amendments to the complaint to name Knight Protective Services as Doe 1 and GSG Protective Services CA, Inc. (“GSG”) as Doe 2.

On September 28, 2023, Ford Apartments and SRO Housing (hereafter, “Defendants”) filed this motion to compel Plaintiff to attend medical examinations with Dr. Clayton Lau, a urologist, and Dr. Marc A. Cohen, a forensic psychiatrist. On the same day, GSG filed a joinder to the motion. Defendants do not seek sanctions.

Plaintiff filed an opposition, indicating that he has agreed to appear for the defense medical examination with Dr. Lau. As such, the motion is moot as to Dr. Lau medical examination. With respect to the examination with Dr. Cohen, Plaintiff argues Dr. Cohen is not qualified to diagnose Plaintiff’s alleged traumatic brain injury.

Defendant replied.

II. LEGAL STANDARD COMPELLING 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)).

III. DISCUSSION

The sole issue to be decided is whether Dr. Cohen is qualified to diagnose Plaintiff’s alleged traumatic brain injury.

Plaintiff argues a traumatic brain injury is primarily diagnosed by a neurologist or neuropsychologist. Dr. Cohen is not a neurologist or neuropsychologist. Rather, Plaintiff points out Dr. Cohen is a forensic psychiatrist and further, forensic psychiatrists typically work with courts to evaluate an individual’s competency to stand trial and to provide sentencing recommendations.

Defendants argue that Dr. Cohen possesses the necessary qualifications and experience to diagnose Plaintiff’s traumatic brain injury. In support, Defendants direct the Court’s attention to Dr. Cohen’s declaration and curriculum vitae which indicates, in relevant part, that Dr. Cohen is a licensed physician who specializes in forensic psychiatry. During his four-year residency training program, Dr. Cohen was routinely involved in the diagnosis and treatment of combat veterans who had sustained mild-to severe traumatic brain injuries. Further, Dr. Cohen received instruction and supervision from neuropsychologists while routinely performing neuropsychiatric examinations. Over the course of his career, Dr. Cohen has performed hundreds of evaluations in clinical and forensic settings related to traumatic brain injury. After completing his residency, Dr. Cohen received additional training from neuropsychologists to conduct psychological testing. As such, Dr. Cohen possesses the capacity to administer, score, and interpret tests used to assess brain injuries. (Reply, Dr. Cohen Decl., ¶¶ 4-8.)

Based on the foregoing, the Court finds Dr. Cohen is qualified to assess Plaintiff’s claims of traumatic brain injury. Dr. Cohen is a licensed physician with the requisite experience and skills to assess Plaintiff’s injuries.

IV. CONCLUSION

The motion as to the medical examination with Dr. Lau is MOOT.

The motion as to the medical examination with Dr. Cohen is GRANTED. Plaintiff is ordered to appear for a medical examination with Dr. Cohen on November 1, 2023, 10:00 a.m., at 333 S. Beverly Drive, Suite 200, Beverly Hills, CA 90212.

Moving party to give notice.

Dated: October 24, 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.