Judge Lynne M. Hobbs, Case Number: 22STCV24057, Date: 2024-03-11 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV24057, Date: 2024-03-11 Tentative Ruling

Case Number: 22STCV24057 Hearing Date: March 11, 2024 Dept: 30

MARIA LUISA OBANDO BALLADARES vs H.M. INVESTMENTS, INC.

TENTATIVE

Defendants’ motion to compel a second independent medical examination of Plaintiff is GRANTED.

The court orders that Plaintiff submit to an independent medical examination before Dr. Scott K. Forman, whose specialty is Orthopedics, on April 5, 2024, at 1:30 p.m., at 360 San Miguel Suite 701, Newport Beach. CA 92660.

Moving party is ordered to give notice.

Legal Standard

C.C.P. §2032.220(a) provides, as follows:

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.

C.C.P. §2031.310 provides, as follows:

(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.

C.C.P. §2032.320(a) provides, as follows: “The court shall grant a motion for a physical or mental examination under¿Section 2032.310¿only for good cause shown.”

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.)

Discussion

Defendant moves to compel Plaintiff to submit to a second independent medical examination (IME) with Dr. Scott K. Forman, whose specialty is Orthopedics, on April 5, 2024, at 1:30 p.m., located at 360 San Miguel Suite 701, Newport Beach. CA 92660. (Decl., Exh. K.)

Defendant argues that good cause exists to compel Plaintiff to submit to an orthopedic examination of plaintiff’s knee, because Plaintiff claimed injuries to her neck and spine, and is now alleging that her knee injuries resulting from the accident may require surgery. Defendant’s expert, Amandeep Bhalla, M.D., a Board-certified orthopedic spine surgeon, conducted an IME of Plaintiff on October 24, 2023. Plaintiff already had neck surgery and low back surgery was recommended, so Defendant wanted a spine surgeon to perform the examination. Dr. Bhalla’s examination of Plaintiff’s knees at the IME was purely incidental to his examination of her purported spinal and back injuries. Notably, his IME report does not discuss Plaintiff's knee injuries at all.

When Defendant learned in late September 2023 that Plaintiff’s alleged knee injuries might necessitate surgery, it was determined that a second IME by an orthopedic surgeon specializing in knee injuries was necessary. Defendant selected Scott Forman, M.D., an orthopedic surgeon specializing in knee, shoulder, foot and ankle surgery, to perform the examination. (Levine Decl., ¶ 6.) Defendant argues engaging a separate expert for the knee would be appropriate rather than risking Dr. Bhalla’s credibility by having him testify about a subject—knee arthroscopy—where he has never performed surgery. A spinal surgeon is not someone who does knee surgeries and therefore, while Dr. Bhalla is an orthopedist and could comment on the knee, it is not one of his areas of expertise.

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no specific limit on the number of available mental or physical examinations and multiple defense examinations are permitted on the necessary showing of good cause.¿ (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)¿ “ ‘Good cause’ is a factual question which the trial court should resolve in the first instance.”¿ (Id. at p. 1256.)

The court finds that Defendant has shown good cause. The second IME involves examination and testing of a different injury of Plaintiff’s (the knee) than the first IME (neck and back). Additionally, the first medical examiner specialized in spinal evaluations. The proposed independent medical examiner specializes in the knees. Moreover, Dr. Forman needs to conduct additional testing of the knees. Further, Plaintiff’s knee injury is ongoing and at issue.