Judge Michelle C. Kim, Case 21STCV03015 2023-03-21 Tentative Ruling

Plaintiff Kaitlyn Adams (“Plaintiff”) filed this action against Defendant Kate Lebenzon (“Defendant”) for damages arising from a motor vehicle accident.

Defendant moves for an order compelling Plaintiff to appear for two physical examinations- one with Dr. Michael P. Weinstein and one with Dr. Scott Forman. Plaintiff opposes the motion, and Defendant filed a reply.

(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:

(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of 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.) 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. (CCP § 2032.320(a).

Here, Defendant asserts that as a result of the accident, Plaintiff is claiming multiple orthopedic injuries, including to her right shoulder, right arm, right elbow, right shoulder blade, and neck. Defendant argues that Plaintiff has placed her shoulder and neck injuries in controversy, so Defendant should have the opportunity to conduct her own evaluation of Plaintiff’s claims. Defendant provides that Dr. Weinstein has expertise in spinal neck injuries and Dr. Forman has expertise in foot, ankle, knee, and shoulder injuries.

In opposition, Plaintiff argues that both of Defendant’s experts are orthopedic surgeons and have the skill and knowledge to examine all of Plaintiff’s injuries without a second physical examination. Plaintiff asserts that she does not take issue with appearing for one examination but contends there is no need for two separate exams. Further, Plaintiff contends that Defendant is aware that Plaintiff relocated to New Jersey in March 2022, Defendant noticed the proposed exams with both experts to take place in Newport Beach, California, well beyond the 75-mile limit permitted by Code. Plaintiff argues that requiring her to travel thousands of miles for a second exam for a duplicative exam only harasses Plaintiff.

In reply, Defendant argues that the exams will be done for the purpose of determining the nature and extent of injuries Plaintiff allegedly sustained. Additionally, Defendant asserts that it is reasonable to ask Plaintiff to return to California for the exams.

Plaintiff does not dispute that Defendant is entitled to one physical exam of Plaintiff. However, Defendant is seeking two orthopedic examinations with two different experts. While Defendant asserts that she should be able to evaluate Plaintiff with Defendant’s experts, Defendant does not meaningfully articulate why two physical examinations of Plaintiff are necessary to assess Plaintiff’s condition. The fact that Plaintiff is claiming injuries to multiple body parts does not automatically entitle Defendant to separate exams of each body part at issue. Defendant submits no evidence showing that separate exams of Plaintiff’s alleged neck and shoulder injuries are required. Furthermore, as to Defendant’s argument that “Plaintiff will likely be calling her own experts and physicians to the trial”, (Mot. at p. 6:22-23), there is no authority cited holding that this alone is sufficient to establish good cause for multiple exams of Plaintiff.

Moreover, Defendant does not dispute being aware that Plaintiff currently resides in New Jersey. The exams with Dr. Weinstein and Dr. Forman are set for beyond 75-miles from Plaintiff’s residence. Defendant does not establish good cause for requiring Plaintiff to travel from New Jersey to California for two physical exams. While Defendant argues for the first time in the reply that that the accident occurred in Los Angeles, where the action is pending, Defendant does not argue that venue in any other county would have been proper. Defendant does not make any showing she attempted to retain an expert within 75 miles of Plaintiff’s residence or provide evidence showing that an expert in New Jersey would not be available to testify in California for trial. Defendant merely contends that Defendant will have to incur unreasonable expenses in having New Jersey doctors examine Plaintiff. Defendant, thus, fails to establish good cause for requiring Plaintiff to travel from New Jersey to California for two physical exams.

Hon. Michelle C. Kim

Judge of the Superior Court