Judge: Michael E. Whitaker, Case: 21STCV08606, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV08606    Hearing Date: December 8, 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  

 

DEPARTMENT 

32 

HEARING DATE 

December 8, 2022

CASE NUMBER 

21STCV08606

MOTIONS 

Motion for Order requiring plaintiff to submit to a neuropsychological examination and assessment

MOVING PARTY 

Defendant Christopher Berberyan

OPPOSING PARTY 

Plaintiff Ricardo Vega

 

MOTION 

 

            This action arises out of an automobile accident that occurred on August 16, 2019. On March 4, 2021, Plaintiff Vega (“Plaintiff”) filed a complaint for negligence against Defendant Berberyan (“Defendant”). Plaintiff seeks damages because of the subject incident.

 

            On November 4, 2022, Defendant moved for an order compelling Plaintiff to submit to further defense medical examinations pursuant to Code of Civil Procedure sections 2032.310 and 2032.320 to be conducted by Dr. Philip K. Stenquist, Ph.D. ABCN, a neuropsychologist, and Dr. Robert Freundlich, M.D., a neurologist, confined to conditions of Plaintiff as related to the complaint for which Plaintiff seeks damages in this action.

 

            On November 28, 2022, Plaintiff filed an opposition.  On December 1, 2022, Defendant filed a reply.

 

ANALYSIS 

 

  1. Authority for Leave to Obtain Examination

 

            Under Code of Civil Procedure section 2032.310, subdivision (a),“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.”

 

            Further, under Code of Civil Procedure section 2032.310, subdivision (b),“A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.”

 

  1. Standards for Granting Leave to Obtain Examination

           

            Under Code of Civil Procedure section 2032.320, subdivision (a), “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”

 

  1. Meet and Confer

 

            Under Code of Civil Procedure section 2032.310, subdivision (b), the motion “shall be accompanied by a meet and confer declaration under Section 2016.040.”

 

            Under Code of Civil Procedure section 2016.040, “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

 

            Here, Defendant argues that Plaintiff has placed his mental condition at issue because he is alleging a traumatic brain injury. (Farazian Declaration ¶¶ 6-7.)  On November 4, 2022, Defendant filed a motion for leave to obtain further medical evaluations of Plaintiff. Defendant’s motion specifies that Dr. Philip K. Stenquist, Ph.D. ABCN, a neuropsychologist, and Dr. Robert Freundlich, M.D., a neurologist will conduct the examinations at their respective offices on a date certain. (Motion at p. 4.) According to Defendant’s motion, Dr. Freundlich’s examination will include “the examination of the Plaintiff’s mental status, gait, coordination, cranial nerves, and motor examination.” (Ibid.) Dr. Stenquist’s examination will “consist of intellectual functioning, language processing skills, perceptual skills, higher motor functions, attention and concentration skills, judgment, reasoning skills, mental flexibility, memory, constructional skills, abstract thinking and conceptualization skills, problem solving skills, behavioral regulation, personality alterations, and emotional functioning.” (Ibid.)

 

            Defendant contends good cause exists for the medical examinations because “Plaintiff is claiming a traumatic brain injury as well as orthopedic injuries.” (Motion at p. 5.) Also, because  Plaintiff’s own doctors have examined him, “to exclude Defendant from having defense medical examinations of Plaintiff would result in undue prejudice and hamper preparation of a proper defense.” (Ibid.)

 

            In opposition, Plaintiff requests the Court to deny Defendant’s motion in its entirety or modify to include Plaintiff’s request.

 

            Plaintiff argues, first, that the demand for an examination conducted by Dr. Freundlich is vague and gives the doctor the chance to perform an orthopedic evaluation because the demand indicated that the Doctor would examine those parts of the body which may be related to the Examinee’s complaints relative to the action. (Opposition Generally; Exhibit 1.) In reply, Defendant asserts that Dr. Freundlich will evaluate only Plaintiff’s specific and separate alleged neurological injury and he does not evaluate orthopedic issues. (Reply at pp. 1-2.) In support of this, Defendant includes the scope of the neurological examination, offered by Dr. Freundlich’s office. (Reply at p. 2.) After examining the scope of the neurological examination, the Court finds that it is not vague. The scope of the neurological examination provides:

 

            “The examination performed by Dr. Freundlich is the neurological examination similar to         examinations performed by other board certified neurologists.

 

            The examination includes:

 

  1. The cranial nerves will be examined.

  2. The motor system will be evaluated including assessment of bulk, tone, strength and deep tendon reflexes, as well as the presence or absence of pathological reflexes.

  3. Sensation will be assessed using various sensory modalities.

  4. Gait, station and coordination will be assessed by having the individual walk, stand, and perform tests of coordination with eyes closed and open.

  5. General physical examination including vital signs, skin, head, eyes, ears, nose, mouth and throat, neck, back, chest, heart, abdomen, and extremities.

 

            No portion of the examination violates (C.C.P. 2032(i)j) nor is intrusive, or subjects the             individual to pain.”

 

(Ibid.)

 

            Second, Plaintiff argues Defendant’s demand for a Neuropsychological Examination fails to identify the specific diagnostic tested and procedures to be used by Dr. Stenquist. (Opposition Generally; Exhibit 2.) Defendant disagrees and submits the scope of Dr. Stenquist’s examination as offered by his office. (Reply at p. 2-3.) The scope of the neurocognitive examination provides, among other things:

 

            “The examination consists of three segments. First, the patient’s medical history and the       details of their present symptoms are determined. Then, he or she is asked to complete a          series of tasks which elicit the patient’s store of information, ability to pay     attention,             ability to use language, perceptual skill, memory, motor function and emotional status. In             addition, the patient may be asked to fill out various self-report measures, usually a             personality test. This provides objective information about their emotional state.

           

            These examinations require approximately one hour of interview time, three or four hours             of testing time and perhaps one to two hours more to complete self-report measures.             This time frame may vary and generally patients should put aside the entire day.         Most             examinees find this time goes by very quickly, and often find the tests surprisingly fun and interesting. Test components are completely painless and non-invasive. Breaks      are available throughout the             day, for lunch or at any time on request. Respect holds a        high-priority at our laboratory. Patients are always afforded the utmost dignity and      consideration.

 

(Ibid.)

 

            Based on the information provided above, the Court finds that the Defendant has specified the diagnostic tested and procedures to be used by Dr. Stenquist.

 

            Third, Plaintiff argues that requesting Plaintiff remove clothing and allow x-rays to be conducts is intrusive to Plaintiff’s privacy. (Opposition Generally.) In reply, Defendant asserts that, according to the scope of the examinations provided by both doctors, neither examination requires x-rays or the removal of clothing.

 

            Lastly, Plaintiff requests that the Court order Defendant’s examiner(s) to provide copies of all tests, test response, and other written communication by Defendant’s examiners after the examination. (Ibid.) Defendant, in reply, agrees to produce to Plaintiff’s counsel the written report of the doctors no later than 30 days after the examinations or within 15 days of trial, whichever is earlier, pursuant to Code of Civil Procedure section 2032.610, subdivisions (a)-(c). Code of Civil Procedure section 2032.610 requires “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner” and “[a] copy or reports of all earlier examinations of the same condition of the examinee made by that or any other examiner” be provided to the examined party.

 

            As stated in the Declaration of Farazian, Defendant’s counsel emailed Plaintiff’s counsel requesting “a NeuroPsych and/or a neurologist to address Plaintiff’s TBI complaints, as well as an orthopedic examination to address Plaintiff’s lower back pain, neck pain, cervical sprain/strain, thoracic sprain/strain and lumbar sprain/strain.” (Motion; Farazaian Decl. 7.) Plaintiff’s counsel, however, “emailed back stating that Defendant would need to ‘obtain leave of court if you wish to proceed with an exam of my client other than a physical examination.’” (Motion; Farazian Decl. 8; Exhibit “A”.) The Court finds that there was a reasonable and good faith attempt at an informal resolution.  

 

CONCLUSION AND ORDER 

 

            Having read and considered the moving, opposition and reply papers, the Court finds that Defendant has established good cause for the requested examinations.  Therefore, the Court grants Defendant’s motion for leave to obtain further defense medical evaluations of Plaintiff, and orders Plaintiff submit to examinations by Dr. Freundlich and Dr. Stenquist at their respective offices on dates and times as noticed by Defendant.

 

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