SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On January 29, 2020, Marianna Melikova (“Plaintiff”) filed this action against Defendants Alexis Nicholson and Christoph Martin Schuenke (“Defendants”) for damages arising out of a motor vehicle accident. 

On March 6, 2023, Defendants filed the instant motion to compel a second defense medical examination (“DME”) of Plaintiff and seeks monetary sanctions. Plaintiff opposes the motion, and Defendants filed a reply.  

 

II. Motion to Compel Second Physical Examination 

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP §2032.320(a).)   

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP §2032.020(a).)  This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.  (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)  Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837 [wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer].)  Discovery responses can also frame the issues regarding the injuries and damages alleged.   

Where the 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 the plaintiff.  (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) 

The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action.  The moving party must also establish good cause for the examination(s) sought.  A court order for physical or mental examination must be based on a showing of “good cause” (CCP § 2032.320(a)): (1) relevancy to the subject matter; and (2) specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)  The purpose is to protect an examinee's privacy by preventing annoying “fishing expeditions” - i.e., one party may not compel another to undergo psychiatric testing “solely on the basis of speculation that something of interest may surface.”  (Id.) 

Pursuant to CCP § 2032.220, Defendants are entitled to one physical exam of Plaintiff.  Nonetheless, Defendants are seeking to compel a second DME with Dr. Brien for an exam of Plaintiff’s knee.  Plaintiff does not dispute she is alleging knee injury requiring surgery, in addition to back injury. A second DME is not necessarily duplicative on the sole basis of covering the same discipline. However, in this case, Defendants have not sufficiently demonstrated how the proposed orthopedic examination with Dr. Brien is substantially different from Plaintiff’s previous orthopedic examination with Dr. Grossman.  

First, the DME notice with Dr. Grossman is identical to the notice for a second DME with Dr. Brien. Both DME notices provide: “The examination shall include, but not be limited to, taking of a complete medical history; evaluating movements and ranges of motion of Plaintiff’s cervical, thoracic, lumbar spine, and extremities and all nerves or neurological systems related to them.” (Def. Exh. 1 – Dr. Grossman, 2:13-15; Exh. 4 – Dr. Brien, 2:13-15.) Second, Dr. Grossman’s March 29, 2023 orthopedic examination report provides that, aside from an examination Plaintiff’s spine, Dr. Grossman also performed an examination of Plaintiff’s right knee, including a diagnosis and opinion of the treatment rendered to Plaintiff’s right knee. (Opp. Exh. 2.) 

Defendant does not establish good cause for the two physical exams, and does not properly establish how Dr. Brien’s examination of Plaintiff’s knee would substantially differ from Dr. Grossman’s examination to merit another physical examination regarding the same body part. Defendant’s contention that Plaintiff will have two different specialized providers, one for spine and the other for knee, and that therefore Defendant is entitled to the same, is not a sufficient basis for a second physical examination.  

Based on the foregoing, the motion is DENIED. Because the motion is denied, the request for sanctions is similarly denied.