Judge: Mark A. Young, Case: 24SMCV04940, Date: 2025-05-07 Tentative Ruling

Case Number: 24SMCV04940    Hearing Date: May 7, 2025    Dept: M

CASE NAME:           Fox v. King Fish, Inc., et al.

CASE NO.:                24SMCV04940

MOTION:                  Motion to Compel Second Independent Medical Examination (Neurological)

HEARING DATE:   5/7/2025

Legal Standard

Any party may obtain discovery by means of mental or physical examination of a party to the action if the mental or physical condition of that party is in controversy in the action. (CCP § 2032.020.) The demand must specify the date, time, 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 exam. (CCP § 2032.220(c).) Any demand shall be scheduled for a date that is at least 30 days after service of the demand, but the court may shorten this time upon motion. (CCP § 2032.220(d).) Within 20 days after service of the demand the party to whom the demand is directed shall respond to the demand by a written statement that the party will comply as stated, comply as modified, or refuse. (CCP § 2032.230(a).)   

If any party seeks discovery by physical examination, other than that described in section 2032.210 et seq., “the party shall obtain leave of court.” (CCP § 2032.310(a).) A motion for an examination “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.” (CCP § 2032.310(b).) The court shall grant a motion for a physical or mental examination “only for good cause shown.” (CCP §2032.320(a).)

ANALYSIS

Defendants King Fish Inc. and Anthony Balboa move to compel Plaintiff Jodie Fox attendance at a second IME with Defendant’s unspecified neurosurgical expert. Defendants argue that good cause exists for such an exam because Plaintiff allegedly sustained severe orthopedic and neurological injuries as a result of the traffic collision that gave rise to this action, and Defendants have not had a reasonable opportunity to examine Plaintiff for the claimed neurological injuries.

In Plaintiff’s discovery responses dated January 3, 2025, Plaintiff claimed pain in the lower back pain, neck pain, upper left arm pain, and upper left shoulder pain. (Nelson Decl., ¶ 2.) Due to the alleged orthopedic injuries being claimed by Plaintiff, Defendants retained an Orthopedic surgeon to conduct an IME. (Id., ¶ 3.) Defendant had the orthopedic surgeon examine Plaintiff on January 6, 2025. (Id.) Since the initial examination, Plaintiff underwent additional surgery, including a spinal cord stimulator (SCS), and made claims of neurological damage. (Nelson Decl., ¶¶3-9.) Defendants contend that they did not know Plaintiff had treatment outside of the orthopedic treatment until after the IME, thus justifying the second IME.

At this time, Defendants do not demonstrate good cause for a second IME. Defendants were required to specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty of their neurosurgical expert. Aside from stating that the IME would take place on an agreeable date, Defendants have not explained who will perform this examination, what the examination would entail, or any of the other conditions of the IME. Without such information, the Court cannot evaluate whether there is a need for the second IME, or if the second IME would be cumulative with the prior IME. Therefore, the Court cannot conclude that there is good cause for an IME.

Accordingly, the motion is DENIED.