Judge: Lynne M. Hobbs, Case: 18STCV09295, Date: 2023-09-29 Tentative Ruling
PLEASE NOTE:
The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.
Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.
Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.
If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.
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.
Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.
Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.
Case Number: 18STCV09295 Hearing Date: December 21, 2023 Dept: 30
JUSTINE GURROLA vs STATE OF CALIFORNIA, et al.
TENTATIVE
Defendant City of Whittier’s motion to reopen discovery for the limited purpose to conduct Plaintiff’s IME is GRANTED. Defendant’s motion to compel Plaintiff’s IME is GRANTED.
The court orders that plaintiff submit to an independent medical examination before Neuro-Ophthalmologist, Alfredo Sadun M.D., within 20 days of this order at a mutually convenient date.
Legal Standard
Motion to Reopen Discovery
Except as otherwise provided, “any¿party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.”¿ (Code Civ. Proc., § 2024.020(a).)¿ “[A]¿continuance¿or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to¿CCP¿section 2024.050.¿ (Code Civ. Proc., § 2024.020(b);¿Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568.)¿¿CCP¿section 2024.050 provides that “[o]n¿motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.”¿ (Code Civ. Proc., § 2024.050(a).)¿
The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ (Code Civ. Proc., § 2024.050(a), (b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:¿¿
1. The necessity and the reasons for the discovery.¿¿
2. The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿¿
3. Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿¿
4. The length of time that has elapsed between any¿date¿previously set, and the date presently set, for the trial of the action.¿¿
(Code Civ. Proc., § 2024.050(b).)¿¿
A motion to reopen discovery pursuant to¿CCP¿section 2024.050 must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050(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.” (Code Civ. Proc., § 2032.220(a).)
Motion to Compel Additional IME
Code of Civil Procedure section 2032.220, subdivision (a) states: “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.”
Code of Civil procedure section 2032.310 states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210)[where there are multiple physical examinations or the proposed procedures will be painful, protracted, or intrusive, etc.], or by a mental examination, the party shall obtain leave of court.
Such an order may be made only after notice and hearing, and for "good cause shown."¿ (Code Civ. Proc., §§ 2032.310(c), 2032.320(a).) Good cause generally requires a showing both of relevancy to the subject matter and specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial, ¶ 8:1157. “’Good cause’ may be found where plaintiff claims additional injuries, or that his or her condition is worsening…).” (Id., ¶ 8:1558.) “As a general matter, a defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy.” (Carpenter v. Superior Court (2006) 141 Cal. App. 4th 249, 258.)
The motion must state the time, place, identity and specialty of the examiner, and the "manner, conditions, scope and nature of the examination."¿(Code Civ. Proc., § 2032.310(b).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc., § 2032.320(d).)
The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2032.310(b).)¿
Discussion
Defendant City of Whittier moves for an order to reopen discovery for the limited purpose of allowing the City to conduct a Neuro-Ophthalmology Independent Medical Examination (“IME”) of Plaintiff. Defendant also moves to compel an additional IME of Plaintiff, a Neuro-Ophthalmology examination with Alfredo Sadun, M.D.
I. Reopen Discovery
A. Necessity and Reasons for the Discovery and Defendant’s Diligence
Defendant argues that despite never disclosing any issues related to Plaintiff’s vision in verified responses to discovery, Plaintiff now asserts a plethora of visual complaints and Plaintiff’s retained expert recommends extensive future care related to Plaintiff’s vision. Just three weeks prior to the filing of this motion, on August 23, 2023, Plaintiff underwent a Neuro-Optometric Examination with Plaintiff’s retained expert, Penelope Suter, O.D. This Examination Report was provided on September 1, 2023, in conjunction with Plaintiff’s expert designation. (Ibid.) Therefore, the Neuro-Ophthalmology examination is necessary to allow the City to adequately evaluate the nature and extent of Plaintiff’s previously undisclosed claimed injuries. Given the number of years that has passed and the absence of any such prior complaints, the City is understandably skeptical of Plaintiff’s complaints, so needs to investigate the veracity of the same by way of the requested IME.
Defendant has demonstrated that the Neuro-Ophthalmology IME of Plaintiff is necessary for this litigation in order to verify Plaintiff’s vision complaints.
As to diligence, Defendant argues it sought an IME upon notice that Plaintiff was claiming these injuries on September 1, 2023. Plaintiff’s “ongoing complaints” identified in written discovery were limited to the following: 1) “nose dripping”; 2) “Traumatic Brain Injury”; 3) “Back Pain”; 4) “Neck Pain”; 5) “Right knee pain”; and 6) “Left knee pain.” (Spearman Decl., ¶¶ 4-5, Exs. 3-4.) Plaintiff did not mention complaints of ongoing issues related to her eyes or vision. (Ibid.) Plaintiff never underwent any Neuro-Optometric evaluations throughout the course of her treatment other than with her retained expert, Penelope Suter, D.O., a few weeks ago. (Id., at ¶ 6.) The City was first made aware that Plaintiff was claiming such ongoing vision issues when Plaintiff designated Penelope Suter, D.O., on September 1, 2023. (Id., at ¶ 6, Ex. 5.)
Plaintiff argues that Defendant has not been diligent. She argues that the fact that she designated an expert to deal with the vision issues should be no surprise to Defendant, considering the medical records produced and the common association of vision problems with a traumatic brain injury.
Plaintiff argues that although it has taken additional time for continued medical expert evaluation to correlate the displayed reading deficits with her exact vision issues suffered from the accident, now better defined by Plaintiff’s neuro-optometry expert, the prior referenced medical records gave Defendant ample notice that vision issues existed due to the injuries incurred from the accident. Had Defendant conducted his expert consultation with his retained neuro-ophthalmologist sooner, he would have been able to evaluate the correlations between her symptoms, medical records and current diagnosis at least one year prior to the filing of this motion.
The Court finds that there is no lack of diligence on Defendant’s part, because the casual connection between Plaintiff’s vision complaints and the subject incident was only recently opined to. Moreover, Plaintiff only recently underwent the IME relating to her vision issues herself. Plaintiff concedes that it took additional time for the experts to correlate the reading deficits with her vision issues suffered from the accident. She states: “As time has passed since the incident, and Plaintiff has been thoroughly examined by multiple physicians with more focus on the compounding impact of the brain injury she suffered, she has learned that many of the vision issues she has experienced are directly related to injuries suffered as a result of the accident.” (Opp. 5.) Essentially, Plaintiff admits she has only recently discovered her vision issues are related to the incident, yet expects Defendant to have had ample notice of these claims prior to her recent disclosure.
In sum, the court finds that the necessity and reasons for the discovery weigh in favor of reopening the discovery at issue, and there was no lack of diligence on the part of Defendant in seeking the subject discovery.
B. The Likelihood that Permitting the Discovery Will Prevent the Case from Going to Trial on the Date Set, Prejudice, and the Length of Time Between the Date Previously Set for Trial and the Current Trial Date
Defendant contends that if discovery is not reopened to allow for the subject IME to proceed, it will be unduly prejudiced. Allowing Plaintiff to sneak in additional damage claims, not previously disclosed, at the last minute, and then to foreclose the City from investigating those claims, would be prejudicial. Defendant argues, on the other hand, Plaintiff will not be prejudiced by undergoing an examination relating to complaints she has recently put at-issue in this matter and undergone an evaluation with her own expert in the last few weeks.
Plaintiff argues she will be prejudiced if she undergoes her fifth Defense Medical Exam less than two months prior to trial, because it will prevent her from properly preparing for expert discovery, which will be underway after January 4, 2024. Also, the Court has already indicated trial will not be continued. Moreover, she contends she should not be subjected to another medical exam by a defense doctor solely due to her own expert’s findings to support the vision injury sustained by disclosing a preliminary report during expert discovery designation.
First, Plaintiff chose to undergo her own examination with her own expert, two months before trial. Thus, it is unclear why she would be prejudiced if Defendant does so now. Second, trial was already continued, and it does not appear a trial continuance is requested. Third, again, Plaintiff chose to see her own expert months before trial, and it is only fair that Defendant has its own expert evaluate Plaintiff now. Defendant would be unduly prejudiced without its independent evaluation of Plaintiff.
Accordingly, the court finds that this factor favors reopening discovery only as it relates to taking Plaintiff’s IME.
The final factor is the length of time that has elapsed between any date previously set and the date presently set for the trial of the action. (Code Civ. Proc., § 2024.050, subd. (b)(4).) The parties do not raise arguments concerning this factor and the court therefore does not find that it weighs for or against continuing the discovery cutoff date.
As such, because the applicable factors all weigh in favor of reopening discovery for this limited purpose, Defendant’s motion is granted.
II. Motion to Compel Additional IME
As noted above, Defendant also moves to compel Plaintiff’s Neuro-Ophthalmology IME with Alfredo Sadun, M.D. Defendant argues there is good cause to compel this IME, because the fact that Plaintiff has sought a recent evaluation in the same area of medicine as the subject IME is a strong indicator that the complaints are at-issue in this matter. The City is entitled to likewise have an expert examine Plaintiff to evaluate the nature and extent of Plaintiff’s claimed injuries; otherwise, Plaintiff and her experts and treaters will have free reign to provide unrebutted testimony and evidence. Plaintiff’s experts have unlimited access to Plaintiff and can evaluate her as many times as they would like. Plaintiff’s counsel’s first question of the City’s experts would surely be, “have you examined Plaintiff in-person in coming to your opinions?” If the City’s expert is not allowed to examine Plaintiff, counsel will utilize this fact at trial to undermine and attack the City’s experts’ credibility and the bases for their opinions. The subject Motion is simply meant to attempt to level the playing field (even though the City’s experts would only be entitled to one examination, versus unlimited for Plaintiff’s experts). Without the above independent Neuro-Ophthalmology examination, the City will be unduly prejudiced.
Plaintiff has not disputed that there is good cause, nor argued against granting the motion to compel other than to oppose reopening discovery.
The Court finds that Defendant has established good cause to compel Plaintiff to submit to a Neuro-Ophthalmology IME. First, Plaintiff has been evaluated by a Neuro-Optometrist. Plaintiff will have an advantage in relying on medical records or expert testimony by her expert who has examined the full breadth of her injuries. The Court cannot simultaneously limit Defendant from having access to similar evidence. Second, as discussed above, Plaintiff only recently disclosed this injury.