Judge: Lisa R. Jaskol, Case: 23STCV03815, Date: 2025-02-18 Tentative Ruling
Case Number: 23STCV03815 Hearing Date: February 18, 2025 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
On February 21, 2023, Plaintiffs Norberto Eduardo Sosa Garcia and Manuel Enrique Del Rio (“Del Rio”) filed this action against Defendants Gabriel Antonio Torrone (“Defendant”) and Does 1-25 for negligence and negligence per se.
On August 17, 2023, Defendant filed an answer.
On October 31, 2024, Defendant filed a motion to compel Del Rio’s second independent medical examination with a neurosurgeon. The motion was set for hearing on January 6, 2025. On December 20, 2024, Plaintiffs filed an opposition. The Court continued the hearing to February 18, 2025.
Trial is set for July 23, 2025.
PARTIES’ REQUESTS
Defendant asks the Court to order Plaintiff to appear for a second medical examination by a neurosurgeon.
Plaintiffs ask the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2032.220 provides:
“(a) 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.
“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.
“(c) A demand 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 physician who will perform the examination.
“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.
“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.”
(Code Civ. Proc., § 2032.220.)
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), 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.”
(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 or mental examination under Section 2032.310 only for good cause shown.
* * *
“(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:
“(1) The court determines that there is good cause for the travel involved.
“(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”
(Code Civ. Proc., § 2032.320, subds. (a), (d), (e).)
DISCUSSION
Del Rio alleges that he has suffered injuries to his spine and low back and injuries to his foot/ankle. Del Rio previously participated in an examination by Lauchlan Chambers, M.D., an orthopaedic doctor specializing in injuries involving the foot/ankle. Defendant now asks the Court for leave to have Del Rio examined by neurosurgeon Paul Kaloostian, M.D., who specializes in spinal injuries and spinal surgery.
According to Defendant, the neurological examination will take approximately one hour to conduct. The examination does not involve any invasive, dangerous, or painful physical procedures other than the subjective pain or distress ordinarily associated with the recall of psychologically and/or emotionally upsetting events and situations in one’s life. The examination will consist of two parts. The first part will involve a history taking and observation of Del Rio for the purpose of gathering information in specific areas. These specific areas shall include current complaints for which he might seek care and the history of his alleged injuries, including his subjective complaints of the events leading to his low back injury. A further history shall be obtained concerning the development of physical symptoms, what treatments he has received, and the effect of those treatments on symptoms. The second part of the examination will consist of the administration to Del Rio of a number of standard validated neurological tests. The tests are not duplicative of the first part of the examination and allow a neurologist to form an informed and objective opinion about the cause, nature, and degree of Del Rio’s neurological complaints. In addition to the history of the incident and orthopedic and neurological damages at issue, the examination will gather important information about past orthopedic and/or neurological difficulties and occupational history.
Plaintiffs oppose the motion, arguing that the demand served on Del Rio for an examination by Dr. Kaloostian is nearly identical to the demand served on Del Rio for the previous examination by Dr. Chambers. Plaintiffs conclude that Dr. Kaloostian would conduct “duplicate” testing and examination of Del Rio without good cause. (Opposition p. 3.)
The Court has reviewed the demands served on Del Rio for physical examination by Dr. Kaloostian and Dr. Chambers. Both demands state:
“The manner, scope, conditions and nature of this examination encompass a physical and orthopedic examination of plaintiff with respect to plaintiff's injuries claimed in this lawsuit. The examination shall include, but not limited to, the taking of a complete medical history, an evaluation of the movements and ranges of motion of the plaintiff's cervical, thoracic, lumbar spine and extremities as well as plaintiff's response in reaction to standard orthopedic tests. The examination will not include any diagnostic test or procedure that is painful, protracted or intrusive, but will include x-rays as deemed necessary by the examining physician.”
Plaintiffs also argue that (1) Defendant is really asking for leave to conduct a neuropsychological (mental) examination, not a physical examination and (2) Defendant's purported request for a neuropsychological examination is defective in several respects.
The Court grants Defendant’s motion. The Court orders that Dr. Kaloostian’s examination shall be directed specifically at Del Rio’s spine and low back injuries. Dr. Kaloostian may not duplicate Dr. Chambers’ examination except to the extent necessary to carry out Dr. Kaloostian’s examination of Del Rio’s spine and low back injuries.
The Court sees no basis for Plaintiffs’ contention that Defendant is asking to conduct a neuropsychological examination of Del Rio.
CONCLUSION
The Court GRANTS Defendant Gabriel Antonio Torrone’s motion for leave to take Plaintiff Manuel Enrique Del Rio second physical examination. The Court orders Plaintiff Manuel Enrique Del Rio to appear for a physical examination by neurosurgeon Paul Kaloostian, M.D on a mutually agreeable date within 30 days of the hearing on this motion. The examination will take place at 960 E. Green Street, Suite 320, Pasadena, CA 91106 and will last no more than 1.5 hours. Dr. Kaloostian’s examination shall be directed specifically at Plaintiff Manuel Enrique Del Rio’s spine and low back injuries. Dr. Kaloostian may not duplicate Dr. Chambers’ examination except to the extent necessary to carry out Dr. Kaloostian’s examination of Plaintiff Manuel Enrique Del Rio’s spine and low back injuries. Otherwise the examination may proceed according to the demand for examination served on Plaintiff Manuel Enrique Del Rio.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.