I. Background 

Plaintiff Alfred Hayrapet (“Plaintiff”) filed this action against defendants Thomas Riley, City of Glendale (“City”), City of Glendale Water & Power, and State of California for damages arising from a motor vehicle incident which occurred on June 23, 2020.  

The City now moves to compel a second physical examination of Plaintiff with Defendant’s neurological surgeon Paul E. Kaloostian, M.D. (“Dr. Kaloostian”).  

Plaintiff opposes the motion, and the City filed a reply. 

The City asserts a second physical examination with Dr. Kaloostian over the same areas is necessary, because Plaintiff was involved in another automobile accident two months on November 4, 2022 after the initial examination with Dr. Kaloostian on September 8, 2022. Ten days after the second automobile accident, Plaintiff saw orthopedic surgeon Stepan Kasimian, M.D. (“Dr. Kasimian”), whose records stated the November 4, 2022 accident aggravated Plaintiff’s neck and lower back pain. On October 4, 2023, Plaintiff produced a report from David E. Fish, M.D. (“Dr. Fish”), who opined Plaintiff would require future neck surgery, a cervical spinal cord stimulator, future lumbar surgery, and future home assistive care for a total of $950,376 in estimated future medical expenses. 

Plaintiff’s counsel had agreed to produce Plaintiff for a second deposition, in which Plaintiff testified that the second accident did not affect his neck or back. However, the City argues this testimony is contradicted by Plaintiff’s medical records from Dr. Kasimian. The City contends the proposed second physical examination is necessitated because of the aggravated neck and back pain, and Plaintiff’s future treatment plan in the amount of $950,376.  

Plaintiff contends there is no good cause for a second examination, because it would not yield any new information. Plaintiff argues his injuries for the subsequent accident are not at issue, and that Plaintiff’s future treatment had always been disclosed. Plaintiff asserts that Dr. Fish’s prepared lifecare plan has no bearing to conduct a second examination. 

 The City reiterates that Plaintiff claims neck and lower back pain as a result of the incident, and that Dr. Kasimian’s report noted an aggravation to these same areas. Further, the City argues that Plaintiff’s medical records indicate that he had returned to chiropractic therapy because of the second automobile accident. Dr. Fish’s report was written nearly a year after the second automobile accident. The City contends the second examination will have different results, because Plaintiff incurred new injuries, and the second examination is necessary to show that Plaintiff’s current complaints to his neck and back are attributable to the second automobile accident to some degree.  

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.)   

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”. 

Here, the City cites The Rutter Group California Practice Guide: Civil Procedure Before Trial at [8:1558], which provides that good cause may be found where there is a claim of additional or worsening injuries. Based on the declaration and evidence provided, the Court finds good cause to allow a second examination of Plaintiff with Dr. Kaloostian over the same areas previously examined due to the subsequent accident. Plaintiff has not provided any evidence demonstrating that Plaintiff’s future treatment had always been known to the City. The second examination may potentially yield additional information as to whether Plaintiff’s injuries over the same areas claimed had been aggravated, and if so, to what extent such that it may affect the life care plan proposed by Plaintiff’s expert 11 months later.  

Based on the foregoing, the City’s motion to compel the second physical examination of Plaintiff is GRANTED.  

Plaintiff is ordered to appear for a physical examination with Dr. Kaloostian at 960 E. Green Street, Suite 320, Pasadena, CA 91106. The parties must meet and confer to determine the date and time for the examination to be completed within the next thirty (30) days; if Plaintiff does not meaningfully participate in the meet and confer process, the City 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). The scope of the second examination provided in the moving papers may not be expanded in connection with the compelled exam.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 29th day of February 2024