Judge: Lisa R. Jaskol, Case: 19STCV41626, Date: 2024-04-24 Tentative Ruling
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Case Number: 19STCV41626 Hearing Date: April 24, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On November 20, 2019, Plaintiff Dan Corey (“Plaintiff”) filed this action against Defendants Steve Bubalo Construction Co., Carl West, and Does 1-100 for motor vehicle tort and general negligence.
On February 13, 2020, Defendants Steve Bubalo Construction Co. and Carl West (“Defendants”) filed an answer.
On January 31, 2024, Defendants filed a motion to compel Plaintiff to submit to a neurosurgery examination and an orthopedic examination of his right hand, to be heard on April 24, 2024. On April 12, 2024, Plaintiff filed an opposition. (The Court exercises its discretion to consider Plaintiff’s late-filed opposition.) On April 17, 2024, Defendants filed a reply.
Trial is currently scheduled for June 25, 2024.
PARTIES’ REQUESTS
Defendants ask the Court to order Plaintiff to submit to a neurosurgery examination and an orthopedic examination.
Plaintiff asks the Court to deny the motion.
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210) . . . , 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.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides in part:
“(a) The court shall grant a motion for a physical . . . examination under Section 2032.310 only for good cause shown.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
Defendants assert that Plaintiff’s January 5, 2024 supplemental discovery responses “indicated that Plaintiff is alleging new post-operative symptoms of right hand/finger numbness, loss of strength of the right hand, and no use of and inability to open the fourth and fifth fingers of his right/dominant hand.” (Motion p. 2.) In addition, Defendants state, Plaintiff for the first time identified Banner Health as Plaintiff’s medical provider. According to Defendants, they wish to conduct a neurosurgery evaluation and an orthopedic evaluation “to determine the nature and extent of Plaintiff’s injuries to his right hand and whether it is related to Plaintiff’s second fusion surgery on February 14, 2023” or to an unrelated orthopedic injury. (Motion pp. 2-3.)
Plaintiff previously participated in independent medical examinations with Defendant’s expert Cary D. Alberstone, M.D., a board certified in neurosurgeon, on November 10, 2020 and March 15, 2022. Defendants state that these evaluations “were related to Plaintiff’s injury to the spine and unrelated to Plaintiff’s right hand.” (Motion p. 4.) Defendants argue that an additional neurosurgery examination by Dr. Alberstone and an orthopedic evaluation by Defendants’ retained orthopedic expert, Nicholas E. Rose, M.D., FACS, “would provide new information that could not be obtained in the prior IMEs based on Plaintiff’s new injury to the right hand, Dr. Rose’s expertise in orthopedics, hand injuries and medical records.” (Motion p. 3.)
In response, Plaintiff argues that while Defendants’ stated intention is “to determine the nature and extent of Plaintiff’s injuries to his right hand and whether it is related to Plaintiff’s second fusion surgery on February 14, 2023,” Defendants describe the scope of the examinations as including “background history, which includes medical and medication history, family medical and psychiatric history, surgical history, marital history, educational background, history and character of current emotional complaints, history and character of previous psychological complaints, medical and medication history, and social, occupational and developmental history.” (Motion p. 2.) Plaintiff contends that the broad scope of the requested examinations refutes Defendants’ claim of good cause.
Plaintiff also argues that (1) Defendants have not specified the time, place, manner, conditions, scope, and nature of the examinations, (2) Defendants have not listed the diagnostic tests and procedures that their examining doctors will use, and (3) Defendants’ meet and confer efforts were inadequate.
Plaintiff does not, however, argue that (1) Defendants have already obtained enough information about Plaintiff’s right hand to enable them to defend a claim for damage to the hand or (2) Defendants should have sought this information earlier. For example, Plaintiff does not dispute Defendants’ assertion that it was not until Defendants received Plaintiff’s January 5, 2024 supplemental discovery responses that they became aware that “Plaintiff is alleging new post-operative symptoms of right hand/finger numbness, loss of strength of the right hand, and no use of and inability to open the fourth and fifth fingers of his right/dominant hand.” (Motion p. 2.) Similarly, Plaintiff does not dispute Defendants’ assertion that the previous physical examinations involved Plaintiff’s spine, not his hand.
Therefore, the Court continues the motion to a date to be provided at the April 24, 2024 hearing. The Court grants Defendants leave to file supplemental papers at least ten days before the continued hearing addressing the following issues:
1. Do Defendants agree that the doctors conducting the neurosurgery and orthopedic evaluations will not inquire into Plaintiff’s family medical and psychiatric history, marital history, educational background, history and character of current emotional complaints, or history and character of previous psychological complaints?
2. Specific information about the time, place, manner, conditions, scope, and nature of the examination.
3. A list of the diagnostic tests and procedures that the examining doctors will use at the examinations.
4. Whether Defendants’ counsel has met and conferred with Plaintiff’s counsel about both requested examinations.
Plaintiff may file responsive papers no later than five days before the continued hearing. If the parties resolve the matter before the continued hearing, they may take the matter off calendar.
CONCLUSION
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.