Judge: Martha K. Gooding, Case: 2019-1069354, Date: 2022-08-29 Tentative Ruling

Motion to Compel Physical/Mental Examination

The Motion by Defendant Roy E. Whitehead, Inc. (“REW”) to compel a second physical examination of Plaintiff Kevin Rye is DENIED.

The defendant has an unqualified right to demand one physical examination in a suit for personal injuries.  (Pratt v. Union Pacific R. Co. (2008) 168 Cal. App. 4th 165, 181.)  Specifically, 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.  (Code Civ. Proc. § 2032.220(a).)  The physical examination shall be performed only by a licensed physician or health care practitioner.  (Code Civ. Proc. §2032.020(b).)

In order to conduct a second physical examination, leave of court is required. Good cause must be shown. (Code Civ. Proc., §§ 2032.310, 2032.320.)

“Good Cause” is established when (1) there are specific facts justifying the discovery and (2) the inquiry is relevant to the subject matter. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)

Defendant moves to compel a second physical examination of Plaintiff Kevin Rye with Dr. Kevin Triggs, a board-certified orthopedic surgeon.  Dr. Triggs previously examined Plaintiff nearly two years ago on 5/28/20.

Defendant contends that a second examination is necessary to determine whether Plaintiff’s condition has improved or conversely, deteriorated, over the past two years.   In opposition, Plaintiff states that he has undergone no treatment related to his injuries since before his last physical examination, in 2018.  Specifically, on 8/17/18, Plaintiff was declared “permanent and stationary” and ceased treating for his injuries. (Serrano Decl., ¶ 1., Ex. A.)  

The Court finds that the passage of time, alone, does not amount to good cause justifying this discovery.  Defendant has submitted no evidence to suggest that Plaintiff’s condition has changed, such as updated written discovery responses, deposition testimony, or third-party records.

As a result, the Motion is denied.

Plaintiff is ordered to give notice.