Judge: Lee S. Arian, Case: 22STCV28139, Date: 2024-12-23 Tentative Ruling

Case Number: 22STCV28139    Hearing Date: December 23, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Catalina Pacific Concrete Company

I.    INTRODUCTION

The instant action arises from an incident involving a cement pump on or around the morning of March 31, 2021, at around 8:30 a.m. Plaintiff Hector Hipolito (“Plaintiff”) alleges that he was placing and finishing concrete at 3860 Grand View Blvd., Los Angeles, California 90066 (the “Premises”) when he was injured due to a malfunctioning and/or negligently operated and maintained concrete truck owned by Defendant M2 Concrete Pumping, LLC.

On August 29, 2022, Plaintiff filed this action against Defendants M2 Concrete Pumping, LLC; Catalina Pacific Concrete Company (“Catalina Pacific”); Always Pumping; and Builders Firstsource-Atlantic Group, LLC (collectively, “Defendants”) for injuries arising from the incident described above. On November 16, 2022, M2 Concrete Pumping, LLC cross-complained against Catalina Pacific and Always Pumping for indemnification, apportionment of fault, and declaratory relief. The same day, Builders Firstsource-Atlantic Group, LLC cross-complained against M2 Concrete Pumping, LLC; Catalina Pacific; Always Pumping; and Bercow O’Byrne Construction, Inc.

On August 21, 2023, the Court deemed case nos. 22STCV28139 and 22STCV29697 related, with the instant case being the lead case. (Minute Order, 8/21/23.)

On February 2, 2024, Catalina Pacific conducted an independent orthopedic examination of Plaintiff by orthopedic surgeon Rocco Calderone, M.D. (Watts Decl., ¶ 4, Ex. I.)

On November 13, 2024, Catalina Pacific served Plaintiff with a Notice of Demand for Independent Medical Examination, specifically for a neurological examination. (Watts Decl., ¶ 5, Ex. C.) That same date, Catalina Pacific’s counsel sent a letter to Plaintiff’s counsel to meet and confer regarding Catalina Pacific’s Demand for Neurological Examination to be performed by Luke Macyszyn, M.D. (Watts Decl., ¶ 6, Ex. D.) The parties spoke via phone and were unable to agree that Plaintiff would submit to the neurological exam. (Watts Decl., ¶ 9.)

On November 25, 2024, Plaintiff served an objection to the notice.

On November 27, 2024, Catalina Pacific filed the instant motion to compel a neurological independent medical examination of Plaintiff.

As of December 12, 2024, no opposition was filed. Any opposition papers must have been filed no later than nine court days before the hearing. (CCP § 1005(b).)

II.  LEGAL STANDARD

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).) 

Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).) 

The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.310, subd. (a).) A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) 

III.                 DISCUSSION

Catalina Pacific argues that Plaintiff has placed his neurological condition in controversy. Plaintiff stated in his response to form interrogatories that he suffered the following injuries as a result of the incident: “loss of consciousness,” “blunt injury to his head,” a “concussion,” “neuropathic pain with sharp, burning, constant pain in a necklace type pattern,” “numbness and tingling in right upper extremity,” “persistent pain, hypersensitivity to touch including wearing shirts (upper chest allodynia),” and “blurred vision.” (Watts Decl., Ex. A, Response to Form Interrogatory No. 6.2.)  Plaintiff also stated in his response to form interrogatories that his treatment at Cedars Sinai Medical Center was for “critical/trauma care including neurosurgery and orthopedic evaluation” and that his treatment at Kaiser Permanente was for “orthopedic, neurology and neurosurgery consult and evaluation.” (Watts Decl., Ex. A, Response to Form Interrogatory No. 6.4.) Plaintiff was also examined specifically for “neurology” by A. Kevin Aminian, M.D. (Id.)  In a deposition, Plaintiff confirmed that he saw a neurologist. (Watts Decl., Ex. B, 125:7.)

Plaintiff further alleged in discovery that he still has complaints relating to: (1) neck pain, restricted range of motion/tightness; (2) low back pain and accompanying pain, tightness, numbness and pain in leg, (3) left and right shoulder pain and limited range of motion/tightness/weakness, (4) nerve pain collar bone/chest area, and (5) emotional distress. (Watts Decl., Ex. H, Response to Form Interrogatory No. 6.3.) With regard to his nerve pain, Plaintiff stated that his “level of pain depends on the weather, activity, what Plaintiff is wearing on top or no apparent reason” and “his symptoms are worsened when Plaintiff wears a jacket/sweatshirt when its cold.” (Id.)

Here, the Court finds Plaintiff’s assertions of neurological symptoms such as “loss of consciousness,” “blunt injury to his head,” a “concussion,” “neuropathic pain with sharp, burning, constant pain in a necklace type pattern,” “numbness and tingling in right upper extremity,” “persistent pain, hypersensitivity to touch including wearing shirts (upper chest allodynia),” and “blurred vision” place his neurological condition at issue.

Although Catalina Pacific’s orthopedic expert conducted a prior physical examination of Plaintiff, good cause exists for Catalina Pacific’s requested second examination of Plaintiff because the proposed neurological examination is different in scope and purpose than the orthopedic examination. The Court agrees with Catalina Pacific that Dr. Calderone’s prior examination of Plaintiff’s extremities and documentation of a basic neurological examination was done with a focus on orthopedics (i.e., musculoskeletal system, which comprises the bones, muscles, joints, ligaments and tendons). In contrast, Dr. Macyszyn’s proposed neurological examination will focus on the neurological function of Plaintiff’s upper and lower extremities, as well as Plaintiff’s spinal nerves and spinal cord function, which are outside the framework of general orthopedic surgery and have not yet been performed. Further, Plaintiff did not oppose this motion and thus makes no arguments to negate Catalina Pacific’s arguments establishing good cause for the second examination.

Additionally, Catalina Pacific properly specified the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of neurosurgeon Dr. Macyszyn, the person who will perform the examination. The proposed order properly specified the diagnostic tests and procedures to be employed.

The motion was also accompanied by a meet and confer declaration wherein Catalina Pacific’s counsel describes multiple attempts to resolve the matter before filing the instant motion. (Watts Decl., ¶¶ 6-9.) Specifically, Catalina Pacific’s counsel sent a meet and confer letter and had a phone call with Plaintiff’s counsel in an attempt to reach an agreement, after which Plaintiff refused to submit to the proposed exam and served an objection. (Id.)

Accordingly, the Motion to compel the neurological examination of Plaintiff is GRANTED.

            Moving party is ordered to give notice.

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.

 Dated this 23rd day of December 2024