Judge: Lee S. Arian, Case: 21STCV46061, Date: 2024-11-14 Tentative Ruling
Case Number: 21STCV46061 Hearing Date: November 14, 2024 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION TO COMPEL MULTIPLE EXAMINATIONS
Hearing Date: 11/14/24¿
CASE NO./NAME: 21STCV46061 RHYAN GUIDRY, AN
INDIVIDUAL vs AIRBNB, INC
Moving Party: Defendant Melissa Sterling
Responding Party: Plaintiff¿
Notice: Sufficient¿
Ruling: GRANTED
Background
On December 17, 2021,
Plaintiff filed the present complaint, alleging that at the time of the subject
incident, he was carrying luggage down a staircase when he slipped on the first
step and fell down the flight of stairs. As a result of the fall, Plaintiff
allegedly sustained various injuries, including injuries to his foot, shoulder,
and a traumatic brain injury.
Defendant Melissa
Sterling moves the court for leave to conduct a neuropsychological examination,
as well as two orthopedic examinations: one by an orthopedic surgeon
specializing in foot and ankle injuries, and another by an orthopedic
specialist focusing on back and shoulder injuries.
Regarding Plaintiff’s
head injury, he alleges that he sustained a traumatic brain injury from the
fall. The reported symptoms include psychological and cognitive injuries, such
as headaches, sleep disturbances, impaired memory, executive functioning problems,
and cognitive deficits.
In connection with his
foot injury, Plaintiff claims that he sustained a fracture to the sesamoid bone
in his right foot, which required injections and surgery. He alleges that the
injury continues to cause pain, limiting his ability to exercise and wear
certain types of shoes.
As for his back and/or
shoulder injury, Plaintiff reports ongoing pain, weakness, and limited range of
motion in his right shoulder. Although he underwent surgery on the shoulder, he
continues to experience instability, pain, and an inability to bear weight.
Discussion
Disputes at Issue
Defendant alleges that
Plaintiff’s counsel has agreed to a neuropsychological examination and one
orthopedic examination. The remaining issues are whether the raw data from the
neuropsychological examination should be provided to Plaintiff’s counsel and whether
Defendant is entitled to conduct two separate orthopedic examinations.
Despite Defendant’s
contention that the issues in dispute have been narrowed to these points,
Plaintiff’s opposition raises several objections. First, Plaintiff argues that
the individual designated to conduct the mental examination is not qualified
and that there is no good cause for the examination, asserting that Plaintiff
is not claiming any mental or emotional distress beyond what typically
accompanies physical injuries. If the court is inclined to permit the mental
examination, Plaintiff requests that specific conditions be imposed, including:
(1) that raw data be delivered to counsel, (2) a time limit for the
examination, (3) a list of tests to be performed, and (4) allowance for
attendance and/or audio recording of the examination.
Regarding the
orthopedic examination, Plaintiff does not dispute the relevance of the
requested tests or that he is alleging injuries to his ankle, shoulder, and
back. However, Plaintiff argues that two orthopedic examinations are excessive,
contending that one examination is sufficient given that both spine and
foot/ankle specialties fall under the broader field of orthopedic medicine.
Mental
Examination
Regarding Plaintiff's
various objections to the mental examination, the Court finds as follows:
1. Dr.
Thaler’s CV indicates that he holds board certification in Clinical
Neuropsychology (ABPP-CN), is certified as a Qualified Medical Examiner, and
possesses both a Master’s and a Ph.D. in Clinical Psychology, with extensive
post-graduate work in relevant fields. The Court finds Dr. Thaler qualified
under the Code to conduct the requested neuropsychological examination.
2. Plaintiff
alleges a range of cognitive impacts, including memory loss, problem-solving
difficulties, and cognitive impairment. A mental examination will enable
Defendant to assess the full extent of Plaintiff's alleged traumatic brain
injury (TBI) and its effect on his cognitive abilities and daily functioning.
The Court finds good cause exists for ordering the mental examination.
As to the parameters of
the mental examination, in applying CCP § 2032.310 and in balancing Plaintiff’s
need for relevant information against the protection of the integrity of the
tests, the Court rules as follows:
1. Defendant
is to provide the name of the tests to be performed. Notice must state the
time, place, identity, and specialty of the examiner, and the “manner,
conditions, scope, and nature of the examination.” (CCP § 2032.310(b).) The
requirement for specification of the “manner, conditions, scope, and nature of
the examination” requires disclosure of whatever diagnostic tests and
procedures will be utilized (e.g., x-rays, blood and urine samples). (See
CCP § 2032.220(c).) Defendant must provide Plaintiff notice of the precise
tests that will be conducted on Plaintiff.
2. The
deposition shall be limited to a single session of 8 hours, which is to include
short breaks and a lunch break of no less than 30 minutes.
3. Raw
data is to be provided to Plaintiff’s counsel for cross examination purposes
and to challenge Defendant’s expert’s conclusions but subject to a protective
order, requiring the materials to remain confidential and used solely for the
purposes of this case to obviate any concerns over production of raw
data.
Restricting access to
raw data solely to licensed neuropsychologists would force Plaintiff to
prematurely disclose their expert’s identity simply to access crucial data,
which could compromise Plaintiff’s litigation strategy. Allowing Plaintiff’s
counsel direct access ensures that they retain control over the timing of
expert disclosures, consistent with standard litigation practices where expert
identification is typically delayed until later stages of discovery.
Neuropsychologists are also costly to retain, creating a significant financial
barrier for plaintiffs with limited means. This burden is especially acute for
plaintiffs in pro per, who may lack any budget for expert witnesses and must
rely entirely on direct access to discovery materials to prepare their case.
Given these considerations, the Court finds that allowing Plaintiff’s counsel
access to the raw data outweighs any interest in limiting it exclusively to
another expert. The Court therefore orders that raw data from the testing
portion be provided directly to Plaintiff’s counsel, subject to a protective
order to maintain confidentiality and restrict its use to this case.
4. CCP
§ 2032.530(a) expressly permits the examinee and/or the examiner to audio
record the examination in its entirety; however, it does not provide for or
preclude the disclosure of such audio recordings. The disclosure of such
material remains within the sound discretion of the trial court. (Randy's
Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 835.) The
Court, in its discretion, finds that the use of the recordings for case
preparation and cross-examination outweighs any interest in having it released
only to another expert and therefore orders audio recording of the testing
portion to be provided to Plaintiff’s counsel, also subject to a protective
order.
Plaintiff is ordered to
attend the mental examination within 30 days of today, subject to the Court’s
ruling on the issues listed above.
Orthopedic Examinations
Regarding the
orthopedic examinations, Shapira v. Superior Court (1990) 224 Cal.App.3d
1249 clarifies that section 2032 does not impose a strict numerical limit on
the number of mental or physical examinations. The court recognized that
different medical specialists may be necessary to evaluate distinct aspects of
a plaintiff's condition. In Shapira, the court permitted both a
neuropsychological and a psychiatric examination due to the complex, disputed
nature of the plaintiff's alleged injuries, which included both organic and
psychological elements. The court reasoned that the expertise of a
neuropsychologist and a psychiatrist provided complementary insights essential
for a thorough evaluation. While multiple examinations were permitted, the
court stressed that the "good cause" requirement serves to prevent
potential abuse or harassment by restricting excessive or redundant
examinations.
Here, there is good
cause for permitting two separate orthopedic examinations, as Plaintiff has
undergone significant surgical interventions on both his foot and shoulder,
necessitating specialized evaluations in each area. Specifically, Plaintiff’s
injuries include a right shoulder arthroscopy, as well as injections and
surgical procedures on his right foot to address a broken sesamoid bone. Given
these invasive procedures, the need for distinct orthopedic specialists, one
focused on foot and ankle surgery and another on shoulder and spine, is
justified. This is not a situation where Plaintiff alleges only general pain or
discomfort; rather, the nature of Plaintiff’s injuries and the existence of
surgical interventions make the situation complex which underscore the need for
specialized expertise to assess the effects of these surgeries and any
potential ongoing limitations or complications.
Plaintiff is hereby
ordered to attend his orthopedic examinations within 30 days of today.
Sanctions are denied as
the court did not find any of the parties to have acted in bad faith.
PLEASE TAKE NOTICE:
If a party
intends to submit on this tentative ruling, the party
must send an email to the court at sscdept27@lacourt.org with the
Subject line “SUBMIT” followed by the case number. The body of
the email must include the hearing date and time, counsel’s contact
information, and the identity of the party submitting.
Unless all parties
submit by email to this tentative ruling, the parties should arrange to appear
remotely (encouraged) or in person for oral argument. You should
assume that others may appear at the hearing to argue.
If the
parties neither submit nor appear at hearing, the Court may take the motion off
calendar or adopt the tentative ruling as the order of the Court. After the
Court has issued a tentative ruling, the Court may prohibit the withdrawal of
the subject motion without leave.