I. BACKGROUND 

Plaintiff Kathryn Crespin (“Plaintiff”) filed this action against Defendant Kathryn Alverson (“Defendant”) for injuries arising from a motor vehicle incident. Trial is currently set for September 11, 2024.   

The Court previously granted Defendant’s motion to compel Plaintiff’s physical examination with neurosurgeon Luke Macyszyn, M.D. (“Dr. Macyszyn”). (Min. Order, March 28, 2024.) 

Defendant now seeks Plaintiff to submit to a second physical examination with neurologist Barry Ludwig, M.D. (“Dr. Ludwig”). Additionally, Defendant seeks a mental examination of Plaintiff with psychologist John T. Dunn, Ph.D. (“Dr. Dunn.”). 

Plaintiff filed an opposition, and Defendant filed a reply.  

II. MOTION TO COMPEL EXAMINATIONS 

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, Plaintiff submitted already submitted to her first physical examination with neurosurgeon Dr. Macyszyn on March 26, 2024. Defendant argues there is a good cause for a second physical examination with a neurologist, because the first physical examination was “designed to probe Plaintiff’s allegations related to neurological issues.” The Court finds that Defendant has not properly delineated the meaningful difference between Plaintiff’s first examination with Defendant’s neurosurgical expert and the proposed examination with a neurologist. Due to this vagueness, there appears to be no good cause for a second physical examination. Accordingly, Defendant’s motion to compel Plaintiff’s second physical examination is DENIED.  

Defendant argues that Plaintiff claims severe emotional distress, mood swings, inability to focus, forgetfulness, emotional instability, and that Plaintiff testified that her mental issues played a big factor in her failed marriage. Defense counsel avers they made a good faith effort to meet and confer with Plaintiff’s counsel, but that Plaintiff’s counsel failed to respond to correspondence seeking a stipulation and has a penchant for not responding for long periods of time. In opposition, Plaintiff contends Defendant has not provided the Curriculum Vitae (“CV”) for Dr. Dunn, and that the motion is defective because it is a motion to compel and not a motion to seek leave for a mental examination.  

Plaintiff appears to have filed an omnibus opposition, which primarily opposes the physical examination sought with Dr. Ludwig, and requests only the denial of the second physical examination. Here, Plaintiff does not directly dispute that she has placed her mental condition at issue, and therefore concedes on this point. Regardless of whether the motion is stylized as a “compel” versus “leave” for a mental examination, Plaintiff is clearly on notice that a mental examination is being sought due to a purported unwillingness of Plaintiff to stipulate to said examination. Further, Plaintiff does not properly support the contention that, because she has not seen Dr. Dunn’s CV, that therefore Defendant’s neurosurgical physical examination of Plaintiff would speculatively be the same as a mental examination to be conducted by a psychologist. In conclusion, the Court finds good cause for Plaintiff’s mental examination because Plaintiff has placed her mental condition at issue and has not otherwise opposed this.  

CCP § 2032.320(d) requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.” Defendant indicates the scope of the examination in the moving papers. The Court notes Defendant also listed the potential tests in the moving papers, which is sufficient to permit Plaintiff to prepare for the examination. (Mot. Mental Exam. at p. 3:4-20.)  Moreover, Plaintiff’s opposition did not object to scope of the exam or any of the listed tests. The Court therefore finds Defendant has met her obligations in this regard. The motion to compel Plaintiff’s mental examination is GRANTED.  

III. CONCLUSION 

Defendant’s motion to compel Plaintiff’s mental examination with Dr. Dunn is GRANTED. Plaintiff is ordered to appear for a mental examination with Dr. Dunn at 23734 Valencia Blvd., Suite 306, Valencia. The scope and manner of examination shall be as set forth in Defendant’s Notice of motion. (Mot. Mental Exam. at p. 3:4-20.) Counsels must meet and confer to determine a mutually agreeable date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendant may unilaterally set the date and time for the examination with at least ten days’ notice to Plaintiff (extended per Code if by other than personal service).  

Defendant’s motion to compel Plaintiff’s second physical examination with Dr. Ludwig is DENIED. Plaintiff’s request for monetary sanctions in opposing the motions is denied.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 9th day of April 2024