Judge: Lee S. Arian, Case: 22STCV14558, Date: 2024-02-23 Tentative Ruling

Case Number: 22STCV14558    Hearing Date: February 23, 2024    Dept: 27

Hon. Lee S. Arian

Department 27

Hearing Date:                         2/23/2024 at 1:30 p.m.

Case Name:                             ANNA GRANUCCI vs. E BRAUN & CO. OF BEVERLY HILLS, et al,

Case No.:                                22STCV14558

Motion:                                   Motion For An Order Compelling Plaintiff Anna Granucci To Submit To A Second Independent Medical Examination

Moving Party:                         Defendant E BRAUN & CO. OF BEVERLY HILLS

Responding Party:                   Plaintiff ANNA GRANUCCI

Ruling:                                    DENIED without prejudice

BACKGROUND

This case stems from a slip and fall incident on December 2, 2021. The Plaintiff, while working as an independent contractor inside a store owned by the Defendant, allegedly slipped and fell due to a wet floor, resulting in multiple injuries. Subsequently, the Plaintiff initiated legal action against the Defendant, asserting claims for Negligence and Premises Liability.

Plaintiff contends that she sustained numerous injuries as a result of the slip and fall accident, including a right shoulder rotator cuff tear, a bicep tear, a labral tear, a SLAP tear, right hip impediment, injuries to her cervical and lumbar spine, injuries to her left knee, bilateral wrist and hands, and right forearm.

On February 9, 2023, Plaintiff underwent her first Independent Medical Examination (IME) conducted by Dr. Ronald S. Kvitne, M.D., an orthopedic surgeon. During this examination, Dr. Kvitne assessed Plaintiff's various injuries, including those related to her cervical and lumbar spine.

However, Defendant argues that Dr. Kvitne, who is not a spine surgeon, lacks the requisite expertise to fully evaluate spinal injuries. Consequently, Defendant has filed a motion to compel Plaintiff to undergo a second IME. This examination would be conducted by Michael Weinstein,

M.D., who specializes in spinal injuries, to examine Plaintiff’s injuries to her cervical and lumbar spine.

SUMMARY

Moving Paper: Despite the initial examination of Plaintiff's cervical and lumbar spine by an orthopedic surgeon, Defendant requests a second examination by a spine surgeon. This request stems from the belief that a specialist in spinal injuries is necessary to accurately assess and diagnose the Plaintiff's cervical and lumbar conditions.

Opposition: Defendant seeks a second examination of the cervical and lumbar spine, areas already examined on February 9, 2023. The initial examination included a review of medical records, X-rays, MRIs, and a physical assessment of both the cervical and lumbar spine, resulting in specific diagnoses and prognoses.

Reply: Dr. Kvitne, the orthopedic surgeon who conducted the initial examination does not specialize in spinal injuries. Defendant argues that distinct and specialized examinations of these injuries are crucial for a comprehensive defense. A specialist in spinal injuries is needed to accurately evaluate the legitimacy of Plaintiff's neck and back complaints and to determine their direct link to the incident in question.

ANALYSIS

Legal Standard 

C.C.P. §2032.220(a) provides, as follows:¿ 

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:¿ 

(1)¿The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.¿ 

(2)¿The examination is conducted at a location within 75 miles of the residence of the examinee.¿ 

C.C.P. §2031.310 provides, as follows:¿ 

(a)¿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.¿ 

(b)¿A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under¿Section 2016.040.¿ 

(c)¿Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.¿ 

C.C.P. §2032.320(a) provides, as follows: “The court shall grant a motion for a physical or mental examination under¿Section 2032.310¿ for good cause shown.”¿ 

Good cause generally requires a showing both of relevancy to the subject matter and specific facts justifying discovery:¿ i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere.¿(Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840.) The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee's privacy interest by preventing an examination from becoming an annoying fishing expedition (Id.)

1.      Discussion

a.       Meet and confer requirement

In the motion, the Defendant asserts that they have fulfilled the meet and confer obligation, as evidenced by an accompanying meet and confer declaration. Furthermore, the Plaintiff does not contest this in their opposition.

b.      Good cause for the second IME

The court shall grant a motion for a physical or mental examination under¿Section 2032.310¿only for good cause shown.”¿ Generally, to find “good cause,” the court requires a showing of both: (1) relevancy to the subject matter of the litigation; and (2) specific facts justifying the discovery, e.g., allegations showing the need for the information sought and lack of means for obtaining the information elsewhere. (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840.) The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee's privacy interest by preventing an examination from becoming an annoying fishing expedition (Id.)

Defendant contends that Dr. Kvitne, who conducted the initial Independent Medical Examination (IME), lacks specialization in spinal surgery. This concern does not extend to any allegation of Dr. Kvitne's inability to properly assess the cervical or lumbar spine, nor does it suggest that his examination was below professional standards. The issue raised centers solely on the fact that Dr. Kvitne is not a specialized spinal surgeon. Despite this, Defendant requests a further examination by Dr. Weinstein, which involves assessments that are generally within the purview of an orthopedic surgeon, such as visual and physical evaluations of the cervical and lumbar spine and Plaintiff’s movements.

Plaintiff alleges a series of injuries, including those to the cervical and lumbar spine, rendering the examination of these areas pertinent. However, Defendant's rationale for seeking a second Independent Medical Examination (IME) by Dr. Weinstein, grounded in his specialization in spinal surgery, fails to demonstrate good cause for a second evaluation.

The examination proposed by Dr. Weinstein, detailed in the motion (Motion at pg. 8), closely mirrors the assessments conducted by Dr. Kvitne on February 9, 2023. Notably, the components of Dr. Weinstein's examination that are specific to his specialty, like evaluating the flexion, extension, strength, and movement of the cervical and lumbar spine, have already been comprehensively addressed by Dr. Kvitne (Richardson Declaration ¶18-20; Exhibit A). Furthermore, Dr. Kvitne provided detailed diagnoses and prognoses based on his assessment (Id. ¶ 29-30; Exhibit A).  It thus appears that the information needed is already available to Defendant. 

The Defendant's reliance on cases such as Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840 and Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1254-1255 does not adequately support the request for a second IME given that those cases do not directly address the issue of a significantly similar second examination. Considering the substantial similarity between the examinations conducted by Dr. Kvitne and those proposed by Dr. Weinstein, the Defendant has not shown good cause for a second examination.

That all said, the Court is denying the request without prejudice so that Defendant can, if such information exists, provide further information, perhaps through a declaration by Dr. Weinstein, as to what is needed that Dr. Weinstein will be able to provide that is different from what Dr. Kvitne provided.   

CONCLUSION AND ORDER 

Defendant’s Motion for An Order Compelling Plaintiff Anna Granucci To Submit To A Second Independent Medical Examination is hereby DENIED without prejudice.