Judge: Michael E. Whitaker, Case: 20STCV03967, Date: 2022-12-12 Tentative Ruling

Case Number: 20STCV03967    Hearing Date: December 12, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendants Caligold Equipment, LLC, Pebco General Engineering & Building Contractors, Inc., The Bedrock Company, and Myles Wayne Perkins (collectively, Defendants) move for leave to compel the subsequent deposition of Plaintiff Jennifer Olden (Plaintiff).  Additionally, Defendants move to compel Plaintiff to submit to a second independent medical examination, with Dr. Russel Nelson (Dr. Nelson), a board-certified orthopedic surgeon, specializing in spine, upper, and lower extremities.  Plaintiff opposes the motions. 

            Preliminarily the Court notes Plaintiff has submitted an untimely opposition to the motions to compel a subsequent deposition and additional independent medical examination.  Based on the hearing date of the motion, December 12, 2022, Plaintiff’s oppositions were due November 29, 2022, 9 court days before the hearing.  Plaintiff filed and electronically served her opposition to the motions on December 7, 2022, three court days prior to the hearing.  Defendants have not filed a reply.  Plaintiff’s Counsel (Counsel) avers that the reason for the tardiness of the opposition is Counsel’s recent diagnosis of pancreatic cancer.  Accordingly, the Court exercises its discretion to consider Plaintiff’s untimely opposition; however, the Court will consider continuing the hearings to permit Defendants time to file and serve replies to the oppositions. 

ANALYSIS

1. Subsequent Deposition

Per Code of Civil Procedure section 2025.610, “[o]nce a party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.  Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”  (Code Civ. Proc., § 2025.610, subds. (a)-(b).) 

Here, on January 14, 2022, Defendants deposed Plaintiff concerning the underlying accident as well as Plaintiff’s treatment, during which Plaintiff represented that her last treatment for the underlying accident was in August of 2020.  (Declaration of Sherry Santa Cruz, ¶ 4.)  On May 2, 2022, Defendants deposed Plaintiff’s treating physical therapist, Amy Bates (Bates) who testified that Plaintiff has, since temporarily stopping treatment in August 2020, returned for treatment with Bates starting in April of 2022.  Defendants now seek to depose Plaintiff concerning Plaintiff’s ongoing treatment subsequent to her initial deposition, her current limitations, and future prognosis.  Defendants’ argue that Plaintiff’s second deposition is crucial to determining Plaintiff’s damages, particularly future damages.  

In opposition, Plaintiff contends that Defendant has not demonstrated good cause for a subsequent deposition of Plaintiff because her injuries can more readily and accurately be determined by taking the deposition of Plaintiff’s treating physicians and reviewing doctor’s reports, MRI films, and related documentation.  Further Plaintiff highlights that there are no “new” injuries about which Plaintiff is complaining, nor has Plaintiff opened the door to new or different claims. 

The Court agrees with Plaintiff as Defendants have not shown good cause for deposing Plaintiff a second time in order to obtain Plaintiff’s treatment, current limitations, and future prognosis.  The information sought by Defendants can be obtained from either Plaintiff’s current health care records or deposing Plaintiffs’ health care providers. 

1. Additional Independent Medical Examination

When the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may obtain a physical examination of the plaintiff.  (Code Civ. Proc., §§ 2032.020, 2032.220.)  A defendant is permitted to one physical examination of the plaintiff in a personal injury action on demand. (Code Civ. Proc., § 2032.220, subd. (a).)  If the defendant seeks to obtain an additional physical examination of the plaintiff, the defendant must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).)   

A motion to compel an additional physical examination must “specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination . . . ,” and must include a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).)  Additionally, the defendant must make a showing of “good cause” to obtain the second physical examination.  (Code Civ. Proc., § 2032.320, subd. (a).) Under the Discovery Act, there is no limit on the number of mental or physical examinations, provided that a showing of good cause is made to justify more than one mental or physical examination of a party. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) The Shapira court also noted that “multiple examinations should not be ordered routinely; the good cause requirement will check the potential harassment of plaintiffs by repetitive examinations,” and “multiple examinations by medical specialists in different fields” may be necessary based upon a plaintiff's claimed injuries.  (Ibid.) 

            Plaintiff appeared for her initial orthopedic evaluation with Dr. Russel W. Nelson on April 13, 2021.  Defendants’ proffer similar arguments in support of their request for a second independent medical examination of Plaintiff.  Defendants argue good cause exists based on Plaintiff resuming treatment since her last deposition on January 14, 2022. 

            In opposition, Plaintiff attests there is not good cause to further investigate Plaintiff’s established injuries as there is no evidence indicating Plaintiff has new or different injuries.  Rather Plaintiff argues that the evidence only demonstrates an aggravation and extension of the injuries which were already sufficiently assessed in her first defense medical examination.

            The Court agrees, noting Plaintiff’s return to her treatment with the same health care provider she saw prior to her January 14^th deposition, without additional evidence of a change in her injuries or prognosis, does not indicate the circumstances of her injuries have changed enough to warrant an additional independent medical examination.  Again, the information sought by Defendants can be obtained from either Plaintiff’s current health care records or deposing Plaintiffs’ health care providers. 

CONCLUSION AND ORDER

Therefore, the Court denies without prejudice Defendants’ motions to compel Plaintiff to appear for a subsequent deposition and to compel an additional independent medical examination of Plaintiff.  Defendants have failed to establish good cause for both as the information sought may be obtained through other discovery methods. 

Defendants shall provide notice of the Court’s ruling and file proof of service of such.