Judge: Mark C. Kim, Case: 20STCV42676, Date: 2023-03-16 Tentative Ruling

Case Number: 20STCV42676    Hearing Date: March 16, 2023    Dept: S27

1.     Background Facts

Plaintiff, Miguel Antonio Osorio filed this action against Defendants, Roadex Cy, Inc. and Jose Reyes Baca for damages arising out of an automobile accident.  Plaintiff claims serious injuries as a result of the accident, and has undergone a spine surgery as well as two shoulder surgeries since the accident, all of which he attributes to the accident. 

2.     Motion to Compel Additional Medical Examinations

a.     History of Parties’ Discovery Dispute

Plaintiff underwent spine surgery in December of 2020.  He underwent shoulder surgery in August of 2021, with a second shoulder surgery in April of 2022. 

Defendants originally scheduled Plaintiff’s IME with Dr. Scott Lederhaus for 4/07/22; the parties agreed, however, to reschedule the examination in light of Plaintiff’s shoulder surgery.  The examination ultimately went forward on 7/28/22.    

b.     Law Governing Additional IMEs

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).) 

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.

The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action.  The moving party must also establish good cause for the examination(s) sought.  A court order for physical or mental examination must be based on a showing of “good cause” (CCP § 2032.320(a)): (1) relevancy to the subject matter; and (2) specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  The purpose is to protect an examinee's privacy by preventing annoying “fishing expeditions” - i.e., one party may not compel another to undergo psychiatric testing “solely on the basis of speculation that something of interest may surface.”  (Id.)

The notice of motion must state the time, place, identity and speciality of the examiner, and the “manner, conditions, scope and nature of the examination.”  (CCP § 2032.310(b).)  The requirement for specification of the “manner, conditions, scope and nature of the examination” apparently requires disclosure of whatever diagnostic tests and procedures will be utilized (x-rays, blood and urine samples, etc.).  (See CCP § 2032.220(c).)  The notice of motion must be accompanied by a separate document setting forth the discovery request, the Declarations must state facts showing that “a reasonable and good faith attempt” to arrange the examination by stipulation was unsuccessful.  (CCP § 2032.310(b).) 

c.     Parties’ Arguments

Defendants argue an additional examination with a shoulder specialist is necessary because Plaintiff is claiming shoulder injuries in addition to the spinal issues about which he was previously examined. 

Plaintiff argues in opposition that the motion must be denied because (a) Defendants knew of all Plaintiff’s claimed injuries at the time they chose a spine doctor to conduct the examination; they could have chosen a doctor qualified to examine all of Plaintiff’s injuries; (b) Defendants’ chosen expert already examined Plaintiff’s shoulder and shoulder injuries; and (c) Defendants have not adequately identified the specifics of the examination as required by Code. 

d.     Multiple Examinations

Plaintiff makes two intertwined arguments in connection with his opposition to the motion.  First, he argues his shoulder condition was known to Defendants’ chosen expert prior to the examination, and second, he argues Defendants’ chosen expert already examined his shoulder, such that a second examination is not permissible. 

Exhibit C to Plaintiff’s opposition is Dr. Lederhaus’s post-examination report.  The report makes clear that Dr. Lederhaus works for the Inland Neurosurgery Institute, which specializes in brain, spinal, stereotactic, micro, and endoscopic neurosurgery.  Lederhaus is identified as a neurological surgeon.  In the report, Lederhaus identifies Plaintiff’s complaints and history, including his shoulder complaints.  Lederhaus also details Plaintiff’s shoulder range of motion.  In his “necessity and reasonableness of treatment” section, however, he specifically defers to “the evaluating orthopedist” in connection with any and all issues relating to the shoulder, stating, “I will not comment on the PRP injection as I am not the evaluating orthopedist on this case” and “The surgery done of his shoulder I will defer to the orthopedist.” 

The Court finds it is entirely reasonable for a defendant to hire a spine expert and also a shoulder expert in a case where a plaintiff has undergone both spinal and shoulder surgeries.  The Court notes that Plaintiff would not have gone to one surgeon to perform both surgeries, as such surgeries are specialized; similarly, any evaluation would also be specialized.  The Court therefore finds Defendants showed “good cause” to have a shoulder specialist examine Plaintiff’s shoulder injuries.

e.     Notice of Motion

Plaintiff also argues Defendants failed to provide all information required by CCP §2032.310(b) (detailed above) in their notice of motion.  Plaintiff is correct.  Defendants’ notice of motion is entirely devoid of the information required per Code.  The Court finds this is an absolute requirement, and therefore the motion must be denied without prejudice. 

Despite the denial of the motion, the Court strongly encourages the parties to work together to resolve any issues relating to a second IME in light of the above analysis, as the Court would be inclined to grant a future, properly noticed, motion, and it is in the interest of justice to have all remaining issues resolved between the parties without the need for additional law and motion practice. 

f.      Conclusion

The motion to compel an additional IME is denied without prejudice due to deficiencies in the notice of motion.  The parties are encouraged to work together to resolve issues relating to a second IME in light of the above guidance. 

Defendants are ordered to give notice.