Judge: Michael E. Whitaker, Case: 21STCV06410, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCV06410    Hearing Date: August 2, 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

            Plaintiff Jose Urbano sued defendant Ernest Phaynan Chock based on a motor vehicle collision.  Defendant moves for leave to obtain a second independent medical examination of Plaintiff by Chris Phillip O’Carroll, M.D. (“O’Carroll”), who is a neurologist. Plaintiff opposes the motion.

ANALYSIS

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 contends that, due to the incident, he sustained a traumatic brain injury.  (See Declaration of Brian W. Plummer, ¶ 4, Exhibit A.)  Defendant represents Plaintiff has already undergone a defense medical examination related to his orthopedic injuries.  Now, Defendant seeks leave to obtain a second examination of Plaintiff with O’Carroll solely for an evaluation of his claimed traumatic brain injury and whether it is related to the collision in this case.

In opposition, Plaintiff does not dispute that he has placed his mental condition in controversy nor is he opposed to the second medical examination with O’Carroll.  But Plaintiff asserts Defendant’s motion is defective because Defendant has not specified the time, place, manner, conditions, scope and nature of the examination.  The Court agrees. 

To compel Plaintiff to submit to an additional examination, the Court must “describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

In reply, Defendant asserts that Plaintiff has been apprised of this information by virtue of the demand for physical examination of Plaintiff served on Plaintiff on July 12, 2022.  The Court notes that Defendant has not provided a copy of that demand in connection with the motion.  Consequently, the Court is unable to issue an order describing, in detail where and when the examination will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. 

The Court therefore denies Defendant’s motion as procedurally defective without prejudice.  Defendant shall provide notice of this ruling and file a proof of service of such.