Judge: Mark H. Epstein, Case: 23SMCV01837, Date: 2025-04-14 Tentative Ruling

Case Number: 23SMCV01837    Hearing Date: April 14, 2025    Dept: I

This is an application to continue the trial or shorten time on defendant’s motion to compel a second IME.  The trial date is currently May 12, 2025.  That date was set by order of December 14, 2023.  There was plenty of time to get everything done, and defendants have not explained why they waited until February of this year to depose plaintiff.  (The court does understand why a second day was needed.)  According to the defense, on the second day of plaintiff’s deposition—March 19, 2025—she testified about cognitive, memory, and behavioral changes that she attributes to the accident.  She apparently also disclosed that during her IME with a neurologist that occurred on March 3, 2025.  The neurologist recommended that plaintiff be seen by a neuropsychologist as to those issues, and defendant seeks such an IME.  Plaintiff, however, will not stipulate to a second IME, and hence this motion.  The underlying motion was filed on April 2, 2025, and is now set for May 6, 2025—after the FSC.

What puzzles the court is this.  Normally, the scope of a plaintiff’s injury is known early on in the litigation.  Generally, an interrogatory is sent asking plaintiff to describe her injury as caused by the accident.  That answer then governs the IME or IMEs that are required.  Here, defendant seems to be suggesting that the first it heard of the cognitive, memory, and behavioral changes was at the IME that occurred on March 3, 2025.  If plaintiff did not disclose these injuries in response to the interrogatory, then the court has some sympathy for the defense and will need to hear from plaintiff why that is.  If, on the other hand, this was disclosed, then the court will need to know from the defense why it waited so long to bring this to the court’s attention and why a second IME was not earlier requested.  If defendant never asked, then the court will need to know why.  In short, the papers currently before the court are not sufficient.

The parties also claim to want to mediate.  The court will inquire as to what happened at the prior mediation, which the court ordered be completed no later than May 31, 2025.

At present, the court is inclined to DENY the application, but, depending on the answers to the above questions, plaintiff might be barred from seeking damages for these injuries or continuing the trial, but if the trial is continued, the court gives no assurance as to when the matter will be restored to the trial calendar.