Judge: Michael J. Strickroth, Case: 2021-01184040, Date: 2022-11-07 Tentative Ruling

Motion to Compel Physical Examination

Defendants’ (Joshua Grant Littleford, Christine Littleford, and Joel Littleford) Motion to Permit a Second Physical Examination of Plaintiff is GRANTED in part.

Code of Civil Procedure Section 2032.220(a), provides that any defendant may demand one physical examination of the plaintiff seeking damages for personal injuries. A party desiring to obtain discovery by a second physical examination or mental examination must obtain leave of court. Code Civ. Proc., § 2032.310(a). A motion for examination must 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(s) who will perform the examination. Code Civ. Proc., § 2032.310(b). The motion must be accompanied by a meet and confer declaration. (Id.)

The court shall grant the motion under section 2032.310 only for good cause shown. Code Civ. Proc., § 2032.320(b). “[A] showing of ‘good cause’ as requiring that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” Vinson v. Superior Court (1987) 43 Cal.3d 833, 840 [based on prior statute Code Civ. Proc., § 2036; footnote omitted]. “The authoritative discovery commentators agree that multiple defense examinations are permitted on the necessary showing of good cause.” Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255. Where plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of plaintiff. Shapira, Id., at 1255 [second mental examination may be ordered].

The order granting a physical or mental must 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(s) who will perform the examination. Code Civ. Proc., § 2032.320(d).

Here, there is good cause for the second orthopedic physical examination due to Plaintiff’s claims of injury to his spine, as well as leg/ankle injury, among others.  (Decl. of Camacho, Exs. A and B.)  Moreover, Defendants contend, and Plaintiff does not dispute, that Plaintiff has also sought treatment for these injuries from different medical providers.  Thus, Plaintiff has placed both his spine and leg/ankle at issue. 

Plaintiff has failed to establish a second examination, with Dr. Forman, will be unreasonably cumulative and/or duplicative, as the first examination was performed by Dr. Weinstein and related to Plaintiff’s alleged spinal injuries.  The second, proposed examination will be performed by Dr. Forman and relates to Plaintiff’s legs/ankles. While both Drs. Weinstein and Forman are both orthopedic surgeons, Dr. Weinstein is an orthopedic surgeon who specializes in the spine. Dr. Forman, on the other hand, is an orthopedic surgeon, but one who specializes in injuries of the knees, shoulders, foot and ankle.

To the extent Defendants seek an examination of Plaintiff’s shoulders, that request is denied, as good cause has not been established at this time. 

Accordingly, Plaintiff is ordered to appear for examination performed by Scott Forman, M.D., which will consist of the following: a physical orthopedic examination of Plaintiff’s legs and ankles, including range of motion testing, and inquires related to Plaintiff’s complaints and symptoms, the manner in which his alleged injuries occurred, and treatment received to date. The examination shall not include any examination or procedure which would cause Plaintiff any undue discomfort or endanger his life or health. The evaluation would take approximately 1-2 hours to complete (not including breaks). Plaintiff would be allowed to take breaks as needed. The location for the examination would be 360 San Miguel Suite 701, Newport Beach, CA 92660. The examination shall take place on a date mutually agreeable to the parties.  Sufficient time to accomplish this exam would appear to exist based on the present trial date of 05/15/2023.

Moving Party to give notice.