I. BACKGROUND 

Plaintiff Guadalupe Rivera (“Plaintiff”) filed this action against defendants Chalio Birrieria and Does 1 through 100 for damages arising from a slip and fall on Defendant’s property. Plaintiff filed amendments to complaint, naming Brkic Ferdo and Zdenka Trs as Doe 1 and Brkic Ljilja as Doe 2. Trial is currently set for April 23, 2024.  

On December 18, 2023, defendants Maria Delgado dba Birrieria Chalio (erroneously named as Chalio Birrieria), Ferdo Brkic, Zdenka Brkic, and Brkic Trust (erroneously sued and served as Brkic Ferdo And Zdenka Trs) (collectively, “Defendants”) filed the instant motion for leave to obtain an independent medical examination (“IME”) of Plaintiff with Defendant’s orthopedic surgeon Dr. David Kaplan (“Dr. Kaplan”).  

Defendants aver they had to retain a new medical expert after their previous medical expert, Dr. Richard Rosenberg (“Dr. Rosenberg”) retired due to illness. Defendants argue the Court had granted their September 14, 2023 ex parte application to continue the FSC and trial date to allow them time to retain a new expert after its designated expert had retired. As such, Defendant selected Dr. Kaplan as their new expert, and served on Plaintiff a demand for medical examination with Dr. Kaplan for December 4, 2023. However, Plaintiff objected to the examination on the grounds that discovery has been cut off. The parties disagree as to whether the Court had “already permitted” the IME. (Mot. 4:10-11.) 

Plaintiff argues that she has already submitted to one physical examination, and that there is no good cause for a second examination. Plaintiff contends there is no evidence that Dr. Rosenberg was unable to continue as an expert in the matter, and that Defendants improperly framed their motion as a compel examination, but that it is actually a motion to compel an additional examination. Plaintiff asserts that just because Defendants were allowed time to find a new expert for trial does not mean that the Court authorized a second examination, nor Plaintiff must submit to it. In the event the Court grants the second examination, Plaintiff requests that the order specify there be no references to the first examination and report by any other witnesses or evidence.  

No reply was filed. 

II. MOTION TO COMPEL ADDITIONAL 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.)  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.  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.) 

Here, the Court continued the trial date from September 18, 2023 to January 19, 2024 in order for Defendants to find a new expert. (Min. Order, Sept. 14, 2023.) The parties were encouraged to meet and confer to resolve any remaining issues pertaining to any additional IME, and that if the parties could not agree, then they must plan for motion practice. (Ibid.) On December 27, 2023, the Court granted Defendants’ ex parte application and continued the trial date from January 19, 2024 to April 23, 2024 so that their motion to compel IME could be heard. (Min. Order, Dec. 27, 2023.) As Plaintiff points out, the Court neither explicitly nor implicitly granted Defendants leave to notice an IME of Plaintiff with their new expert. Rather, the Court granted the initial continuance to provide Defendants to obtain a new expert due to their previously designated expert’s retirement, and simply encouraged the parties to informally resolve any additional IME issues. The Court did not continue discovery-related cut-off dates to track with the new trial dates, and thus discovery remains closed. Further, the Court notes that the statutory bases cited in Defendants’ Notice is inaccurate. Defendants move to compel pursuant to CCP §2032.220 [the right to demand one physical examination of plaintiff] and CCP § 2032.320(e) [compelling examination more than 75 miles from person’s residence], which is clearly not what Defendants actually seek.  

Defendants reiterate in their moving papers that they will suffer irreparable harm and substantial prejudice if the motion to compel Plaintiff’s second physical examination with their new expert is not granted. However, Defendants do not detail exactly the nature of the irreparable harm or substantial prejudice, and thus have not properly set forth good cause as to why Dr. Kaplan must examine Plaintiff when Plaintiff has already submitted to her mandated physical examination with Dr. Rosenberg. Defendants did not respond to Plaintiff’s contention that Dr. Rosenberg had already been deposed, and that there is no basis for Dr. Kaplan to not be able to rely on Dr. Rosenberg’s examination findings. Plaintiff avers that if she were to stipulate to waive any possible hearsay issues with respect to the examination findings of the first report, then there would be no reason for Plaintiff to be examined a second time. 

Accordingly, Defendants’ motion to compel Plaintiff’s second physical examination is DENIED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 19th day of March 2024