Judge Lynne M. Hobbs, Case Number: 21STCV41222, Date: 2024-01-24 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV41222, Date: 2024-01-24 Tentative Ruling

Case Number: 21STCV41222 Hearing Date: January 24, 2024 Dept: 30

SOMMER KASKOWITZ vs JAMISON PROPERTIES, INC., et al.

TENTATIVE

Defendant’s motion to compel an independent medical examination is GRANTED. Plaintiff is ordered to submit to an additional IME with Dr. Ludwig upon a duly served notice. Court encourages the parties to meet and confer to accommodate Plaintiff's medical condition before the IME notice is served. Moving party to give notice.

Legal Standard

Code of Civil Procedure (“CCP”) section 2032.220(a) provides:

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.

CCP section 2031.310 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), 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.

CCP section 2032.320(a) provides: “The court shall grant a motion for a physical or mental examination under¿Section 2032.310¿only for good cause shown.”

¿“Section 2036 defines a showing of ‘good cause’ as requiring that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” (Vinson v. Superior. Court (1987) 43 Cal.3d 833, 840.)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP §2032.020(a).) This means the examination must be directly related to the specific injury or condition that is the subject of the litigation. (Roberts v. Superior Court

(1973) 9 Cal.3d 330, 337.) Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837 [wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer].) Discovery responses can also frame the issues regarding the injuries and damages alleged.

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of the plaintiff. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)

Discussion

Defendant seeks to compel Plaintiff to undergo a second independent medical examination (IME) with neurologist Dr. Barry Ludwig. Plaintiff has already undergone an IME with orthopedist Stephan Milulak. Dr. Milulak examined and evaluated Plaintiff regarding Plainiff’s injuries to Plaintiff’s head/neck, upper back, right arm, low back, left hip and right hip. However, Defendant contends there is good cause to compel Plaintiff to submit to the IME with Dr. Ludwig because Plaintiff is claiming a concussion, post concussive syndrome, and vision issues due to the accident. These complaints are within the specialty of a neurologist.

Defendant adequately articulated that a neurologist needs to examine Plaintiff concerning her complaints relating to her concussion. Defendant previously had Plaintiff examined by an orthopedist concerning her complaints relating to her head/neck, upper back, right arm, low back, left hip and right hip. Plaintiff does not, in opposition to the motion, deny suffering from these conditions or attributing the conditions to the accident.

Plaintiff also argues that Defendants knew of Plaintiff’s condition for over a year, but only recently moved to compel a second IME. Further, Plaintiff is currently eight months pregnant with triplets, meaning that her due date falls extremely close, if not at the exact time as Defendant's proposed medical evaluation.

Defendant argues that it attempted to schedule a defense exam several months ago in October of 2023, and plaintiff agreed to appear for an examination. However, the parties needed to work out logistics. The parties faced very significant logistical hurdles as a result of Plaintiff’s complicated pregnancy.

Plaintiff has not submitted any authority that would support her argument that failing to seek the examination as soon as possible waives the right to do so. Further, as to whether she can submit to an IME, Defendant’s contention that if Plaintiff cannot travel for a defense examination, she certainly cannot sit through a trial several weeks after giving birth is well taken. Plaintiff has filed this lawsuit against Defendant. Defendant has shown good cause to take an additional IME of Plaintiff. Plaintiff may move to continue trial if there is no time to undergo an additional IME after she gives birth and before trial.

As a result, the Court finds there is good cause to compel Plaintiff to submit to an additional IME with Dr. Ludwig. The motion is granted.