TENTATIVE

Defendant’s motion to compel Plaintiff to present for physical examination is DENIED without prejudice. Plaintiff’s request for sanctions is DENIED. Plaintiff to give notice.

Legal Standard

“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., section 2032.220, subd. (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 mental examination, the party shall obtain leave of court. (Code Civ. Proc., §2032.310, subd. (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, subd. (a).)¿ 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, subd. (e)(1)-(2).)¿ ¿

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 moving party¿must support their motion with a meet and confer declaration.¿¿(Code Civ. Proc., § 2032.310(b).)¿ A meet and confer declaration must state facts "showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion."¿ (Code Civ. Proc., § 2016.040.)¿¿¿¿

Discussion

Defendant moves to compel Plaintiff’s physical independent medical examination (IME) with Defendant’s neurosurgery expert, Dr. Thomas Rosenbaum, M.D., on February 27, 2024, at 11:00 a.m. Defendant argues there is good cause to compel an additional physical IME of Plaintiff because at Plaintiff’s last examination by Dr. Rosenbaum, Plaintiff refused to answer medically pertinent questioning regarding his medical history and treatment since the incident giving rise to this action, provided vague and evasive responses to the few questions he would answer, and further refused to remove his neck brace to permit Dr. Rosenbaum to complete necessary physical testing. Dr. Rosenbaum concluded that the examination was of no medical use, as a result. (Asrani Decl., ¶ 5; Exh. B.)

Defendant’s motion does not contain the location of the proposed examination and cannot be granted. It only states it is to be determined. (Opp., pg. 8:28.) 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).)

Defendant then requests that the examination take place at Dr. Rosenbaum’s office located in Portland Oregon, and admits it is outside of the 75-mile radius of Plaintiff’s residence. The Court notes that Defendant did not move to compel Plaintiff to submit to an IME at a location that is more than 75 miles from Plaintiff’s residence under Code Civ. Proc., § 2032.310, which requires a showing of good cause shown for the travel, among other things. Nor has Defendant made any arguments to meet the requirements under that section. As such, the Court must deny the motion at hand.

Plaintiff’s request for sanctions is denied as Plaintiff has failed to cite to any statute that would allow for sanctions in this circumstance.

Conclusion

Accordingly, Defendants’ motion is DENIED without prejudice.