Judge: Lisa R. Jaskol, Case: 23STCV05946, Date: 2024-05-23 Tentative Ruling
Case Number: 23STCV05946 Hearing Date: May 23, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On March 17, 2023, Plaintiff Alice Alexis Leigh (“Plaintiff”) filed this action against Defendants Louisiana Fried Chicken Inc. (“Defendant”) and Does 1-25 for general negligence and premises liability.
On April 24, 2023, Defendant filed an answer.
On February 20, 2024, Defendant filed a motion for leave to obtain Plaintiff’s second physical examination, to be heard on March 26, 2024. The Court continued the hearing to May 23, 2024. On March 13, 2024, Plaintiff filed an opposition. On March 19, 2024, Defendant filed a reply.
On February 27, 2024, Defendant filed a motion to obtain Plaintiff’s mental examination, to be heard on March 26, 2024. The Court continued the hearing to May 23, 2024. Plaintiff did not file an opposition.
Trial is currently scheduled for September 13, 2024.
PARTIES’ REQUESTS
Defendant asks the Court for leave to conduct (1) a second physical examination of Plaintiff by orthopedic surgeon A. Nicholas Shamie, M.D., at 10850 Wilshire Blvd., Suite 520, Los Angeles, California 90024, at 3:00 p.m. on April 17, 2024 and (2) a mental examination by neuropsychologist John T. Dunn, Ph.D., at 23734 Valencia Blvd., Suite 306, Valencia, CA 91355, on April 26, 2024, at 9:00 a.m.
Plaintiff asks the Court to deny the request for leave to conduct a physical examination.
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.
* * *
(Code Civ. Proc., § 2032.320, subds. (a), (d).)
DISCUSSION
A. Second physical examination
On February 15, 2024, Plaintiff participated in a defense physical examination by Barry Ludwig, M.D., a neurologist. Defendant now asks for leave to conduct a second physical examination based on Plaintiff’s assertion that, due to Defendant’s negligence, she suffers orthopedic injuries and has received orthopedic treatment for her injuries. A. Nicholas Shamie, M.D., an orthopedic surgeon, would conduct the examination.
Plaintiff opposes the motion, arguing Defendant has failed to show good cause for a second physical examination. According to Plaintiff, the medical records she provided to Defendant, together with Plaintiff’s previous physical examination, adequately document her medical condition. Plaintiff contends that a second physical examination would be cumulative, unduly burdensome, and an undue invasion of her privacy.
In particular, Plaintiff argues that neurologist Barry Ludwig’s examination “extended beyond a neurological consultation to include thorough assessments of Plaintiff’s right elbow, left knee, neck, and back pain.” (Opposition p. 1.) Indeed, Plaintiff contends, Defendant is now seeking a “second orthopedic examination” because Dr. Ludwig’s examination included an orthopedic assessment. (Opposition p. 4.)
The Court has reviewed Dr. Ludwig’s report and finds nothing to support Plaintiff’s contention that Dr. Ludwig conducted an orthopedic assessment. The report states that Plaintiff was referred to Dr. Ludwig “for neurological evaluation.” (Exh. 3, p. 1.) The report does not state that the evaluation included an orthopedic component. Plaintiff has presented no evidence that she or her counsel has background, training, or experience needed to characterize Dr. Ludwig’s neurological examination as an orthopedic examination.
The Court finds good cause and grants Defendant’s motion for leave to conduct a second physical examination. The examination may include the tests and procedures described in Defendant’s notice of motion. The parties and their counsel will comply with the manner, nature, and conditions of the examination specified in Defendant’s notice of motion. The examination will take place on a mutually agreeable date within 30 days of the hearing on the motion.
B. Mental examination
Plaintiff asserts that she has experienced mental, emotional, and cognitive injuries due to Defendant’s alleged negligence. As a result, Plaintiff has placed her mental, emotional, and cognitive condition at issue. The Court finds good cause and grants Defendant’s motion for leave to conduct a mental examination.
The examination may include the tests and procedures described in Defendant’s notice of motion and motion. The parties and their counsel will comply with the terms and conditions specified in Defendant’s notice of motion. The examination will take place on a mutually agreeable date within 30 days of the hearing on the motion.
CONCLUSION
The Court GRANTS Defendant Louisiana Fried Chicken Inc.’s motion for leave to obtain Plaintiff Alice Alexis Leigh’s second physical examination. The second physical examination will take place on a mutually agreeable date within 30 days of the hearing on the motion. Orthopedic surgeon A. Nicholas Shamie, M.D., at 10850 Wilshire Blvd., Suite 520, Los Angeles, California 90024, will conduct the examination.
The Court GRANTS Defendant Louisiana Fried Chicken Inc.’s motion for leave to obtain Plaintiff Alice Alexis Leigh’s mental examination. The mental examination will take place on a mutually agreeable date within 30 days of the hearing on the motion. Neuropsychologist John T. Dunn, Ph.D., at 23734 Valencia Blvd., Suite 306, Valencia, CA 91355, will conduct the examination.
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.