Judge Lee S. Arian, Case Number: 23STCV23432, Date: 2025-05-06 Tentative Ruling

This case involves a motor vehicle accident that occurred on February 28, 2022, when a Los Angeles County Sheriff’s vehicle operated by Defendant TONY FRANKLIN collided with Plaintiff’s vehicle on the CA-91 Freeway near W. 6th Street and Maple Street in the City of Corona, California. Plaintiff alleges injuries to her cervical and lumbar spine and right wrist, including ongoing pain and functional limitations.

On December 18, 2024, Plaintiff underwent an independent medical examination with orthopedic spine surgeon Dr. A. N. Shamie. Defendant alleges that Dr. Shamie’s evaluation focused on Plaintiff’s cervical and lumbar spine but that he only tangentially assessed her wrist condition and, in particular, did not assess apportionment of her wrist injury between the injury at issue here and an earlier work-related injury. Similarly, Defendant contends Dr. Shamie did not conduct any meaningful evaluation of her ongoing pain management needs. Defendant now seeks leave of Court to conduct two additional independent medical examinations with the following medical specialists: F. Michael Ferrante, M.D., a pain management specialist, and Stuart H. Kuschner, M.D., a hand and wrist specialist.

Except for defense physicals in personal injury cases and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP § 2032.320(a).)

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.)¿

Defendant seeks a pain management independent medical examination on the basis that Plaintiff has undergone multiple diagnostic studies, including MRIs of the cervical and lumbar spine and right wrist, which revealed multilevel disc protrusions, foraminal narrowing, and nerve root contact. Defendant contends these findings have been used to justify escalating pain management interventions, including spinal facet injections and a potential spinal cord stimulator trial, thereby placing at issue the connection between the subject accident and the need for such treatment.

However, opinion on this issue was already provided by Dr. Shamie in his IME report. Dr. Shamie conducted a physical examination and reviewed all relevant imaging, including cervical and lumbar spine MRIs. He diagnosed Plaintiff’s spinal complaints as myofascial pain and radiculitis, noting they were supported by findings such as muscle spasm, tenderness, and reduced range of motion. Imaging revealed multilevel degenerative changes, which Dr. Shamie opined were consistent with pre-existing chronic degeneration rather than acute traumatic injury. He specifically addressed Plaintiff’s prior pain management treatment, including facet injections and the proposed spinal cord stimulator trial.

He concluded: "The temporary symptom relief following conservative care, including chiropractic treatment and facet injections, suggests that the accident likely caused an acute but self-limited increase in her symptoms, with the ongoing complaints more appropriately attributed to the underlying degenerative processes." (Shamie IME Report at pg. 24.)

He further noted that Plaintiff did not require emergency care at the scene, drove herself to work following the accident, and displayed no neurologic deficits, which supports a finding that her injuries were low acuity and did not justify further invasive pain management.

Defendant seeks leave to conduct an IME with a hand and wrist specialist, contending that an examination by an orthopedic expert in hand and wrist pathology is both warranted and essential, and that Plaintiff’s wrist injury has not yet been meaningfully evaluated.

However, this argument overlooks the fact that Dr. Shamie, during the December 18, 2024 IME, already conducted an evaluation of Plaintiff’s right wrist complaints and reviewed the relevant diagnostic imaging. Dr. Shamie noted Plaintiff’s report of intermittent forearm tingling with prolonged elbow flexion and documented positive Tinel’s sign at the right wrist and positive Cubital Tunnel testing at the right elbow. Despite these findings, sensation was intact bilaterally, and there was no evidence of muscular atrophy. (Shamie IME Report at pgs. 2–3.)

In his medical opinion, Dr. Shamie concluded that Plaintiff may have sustained an acute exacerbation of right wrist pain as a result of the accident but emphasized that her medical history, including a prior work-related injury and wrist surgery, strongly suggested the TFCC tear identified on imaging may be pre-existing. He further noted that Plaintiff did not pursue follow-up care after receiving a steroid injection, which he found inconsistent with a claim of ongoing traumatic wrist injury. He ultimately concluded:

“The chronic nature of the wrist pain and her failure to pursue further follow-up after the initial steroid injection indicate that any acute wrist-related injury from the accident was likely mild and did not result in lasting functional impairment.” (Shamie IME Report at pg. 24.)

“The subject accident possibly caused a temporary increase in symptoms involving the...right wrist...The prolonged symptoms and any consideration of future...treatment are more likely related to her pre-existing chronic degenerative conditions and prior wrist history rather than any acute effects of the subject motor vehicle accident.” (Shamie IME Report at pg. 24.)

The original examination was performed by Dr. Shamie, an orthopedic spine surgeon, whose evaluation included Plaintiff’s cervical and lumbar spine as well as her right wrist. Furthermore, the examination of the spine, review of spinal injections, potential spinal surgeries, and assessment of the wrist all fall within the scope of orthopedic medicine, which is Dr. Shamie’s specialty.

The IME encompassed not only a physical examination of these areas but also a review of the relevant medical records, including MRIs, treatment notes, and operative reports. Dr. Shamie specifically addressed Plaintiff’s complaints of ongoing pain to her spine and wrist, her history of pain management interventions, and future recommendations such as spinal injections and a spinal cord stimulator. He provided a comprehensive causation analysis and offered clear medical opinions as to the appropriateness and necessity of such treatment. As such, Defendant does not lack information concerning Plaintiff’s pain management or wrist condition from the original IME.

Although Defendant now argues that additional IMEs are necessary due to the “important subspecializations” of the physicians, this assertion fails to recognize that nearly every medical specialty includes subspecialties. It appears to the Court that requiring subspecialty defense examination in every case would be excessive and thus the fact that a subspecialty may be called into paly in a particular case is not alone a sufficient basis for repeat IMEs. For example, pain management can be further divided into treatment by anatomical region. Morevoer, and significantly, although Dr. Shamie provided a declaration in support of the additional IMEs, Dr. Shamie’s declaration does not state that he was unqualified to provide opinions on either pain management or wrist injuries.

What matters is whether the original examination was deficient in scope and that it did not cover the wrist or the spinal injections. Here, it was not. Plaintiff’s spine and wrist were examined, and Dr. Shamie provided opinions on the nature of Plaintiff’s injuries, their relation to the subject accident, and the necessity of further treatment, including injections and a spinal cord stimulator. He further provided an opinion on the impact of the prior wrist injury. These fall within his qualifications as an orthopedic spine surgeon. Accordingly, the motion is denied.

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