Judge: Mark H. Epstein, Case: 19SMCV02200, Date: 2023-01-05 Tentative Ruling

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Case Number: 19SMCV02200    Hearing Date: January 5, 2023    Dept: R

The motion is GRANTED.

This is a case in which the plaintiff claims various injuries from exposure to mold.  Defendant has conducted a medical examination with a pulmonologist by right.  Defendant moves to compel plaintiff’s examination by an allergist-immunologist.  Plaintiff opposes primarily on procedural grounds.  First she claims that the notice of the examination was not proper in that it was in the form of a Word document and was unsigned.  Plaintiff also complains that the description was too vague.  And plaintiff argues that the motion is improper because it should be a motion for leave to conduct a second examination rather than a motion to compel.

Frankly, many of those objections are not ill-taken.  But the court is nonetheless inclined to overlook them and construe the motion as one for leave rather than one to compel.  The trial is currently set for March 6, 2023.  If defendant moves with alacrity, defendant could start over and still get the motion for leave heard in time.  The court sees little purpose in requiring defendant (and plaintiff) to jump through those hoops.  Other than running up the bill, all that accomplishes is delaying the resolution of the matter for a month or six weeks.  And even if the cut-offs might interfere, all that would mean is that the court would have to deal with the inevitable application to shorten time or continue the trial.  Trial is not a game of “gotcha.”  While the procedural rules are there for a reason and must be followed, they are not enacted as a design to give one party the ability to hide the facts from the jury.  The interests of justice require the court to consider the matter on the merits.  Plaintiff is correct that prior defense counsel did not work the case up properly (or at least not overly diligently), but that alone is not good cause to deny new counsel the ability to work it up, especially where doing so will not require that the trial be continued.

On the merits, the court must agree with the defense.  The two medical experts have different specialties and opine as to different aspects of plaintiff’s alleged injury.  Indeed, plaintiff plans on calling an expert from each discipline.  This hardly seems to be even a close question.

Nor is the examination unduly intrusive.  True, it involves needles.  And the court gets it; the court hates needles, too.  But it is not surgery; it is an in-office procedure that is typical and that plaintiff has already done for her doctor.  And the court believes that, at this point, the examination’s scope has been adequately disclosed, but, in the interest of completeness, defendant will by close of business tomorrow (meaning 5:00 pm) reiterate in detail what tests will be performed.  The court is aware that in some cases there is by the nature of the beast some generality or open-endedness, but at this point the tests ought to be pretty well known.  The court does not expect to see any ex parte applications based on this.

The court is aware of the reply evidence defendant submitted regarding the meet and confer.  That evidence is not the engine driving this ruling and the court will say no more about it.

The examination will occur in the month of January.  Defendant will just have to make the expert available in the last two weeks of the month to get that done.  Plaintiff will have to make herself available as well.  The parties would be well advised not to return to this court with a scheduling squabble.  If defendant intends to designate this doctor as an expert, defendant ought to do so promptly and timely. 

If this cannot be done in a time frame that allows the trial date to remain, the court will ultimately have to figure out the reason for it.  If the fault lies with plaintiff, the case may need to be continued.  The likely new trial date is fall or winter or early 2024.  If the fault lies with the defense, the defendant might find itself without an allergist expert able to testify.  Again, the parties would be well advised to cooperate.

As the parties may have figured out from this order, the court expects reasonable professional courtesies and cooperation between counsel.  Things will proceed more quickly and with less expense for both sides if that is attained.