SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Juan R. Morales, Jr. (“Plaintiff”) filed this action against Defendants Southern California Exterminators and Steven C. Hennen (“Defendants”) for damages arising from a motor vehicle incident.  

At this time, Defendants move for an order compelling Plaintiff to appear for a subsequent physical examination.  Any opposition was due on or before August 31, 2023. No opposition was filed.   

Defendants seek leave to obtain a neurological examination of Plaintiff to be performed by board-certified neurologist Barry Ludwig, M.D. (“Dr. Ludwig”) at 2811 Wilshire Boulevard, Suite 508, Santa Monica, CA 90403, which is within 75 miles of Plaintiff’s residence in Ontario, California.  Defendants assert that Plaintiff will be relying on two separate experts with specialties in the field of neurology and neuropsychology to discuss Plaintiff’s alleged brain injury arising from the incident. Defendants contend a neurological examination is necessary to evaluate Plaintiff’s claimed injuries.   

 

II. Motion to Compel 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.)   

Here, Plaintiff had already been evaluated by Defendants’ orthopedic surgeon on October 19, 2022 for Plaintiff’s orthopedic complaints, and also had previously been evaluated by Defendants’ neuropsychologist on February 1, 2023. Defendants aver a third examination to address neurological claims is necessary because Plaintiff himself recognizes the need for two separate medical specialties of neurology and neuropsychology to address his claimed traumatic brain injury. Plaintiff claims symptoms such as headaches, memory loss, and trouble concentrating in addition to light sensitivity and blurred vision. 

Plaintiff objected to Defendants’ medical examination notice on the grounds that Defendants were entitled to only one examination. Defense counsel attempted to meet and confer with Plaintiff regarding the neurological medical examination with Dr. Ludwig, contending that Plaintiff’s claim for traumatic brain injury requires an evaluation by not just a neuropsychologist, but also a neurologist since Plaintiff’s counsel will be relying on both a neurologist and neuropsychologist at the time of trial. Defense counsel avers that Plaintiff’s counsel expressed a lack of interest in continuing to meet and confer about the examination. Thereafter, Plaintiff served an expert witness designation identifying neurologist Jonathan Eskenazi, M.D. and neuropsychologist Arnold D. Purish, Ph.D. Defendants seek a neurological examination on a mutually agreeable date and time on or before November 15, 2023 with Dr. Ludwig.  

Plaintiff did not file any opposition to the motion or otherwise dispute Plaintiff has put his mental condition at issue, such that his claimed injuries necessitate an additional examination by a neurologist.  Based on the foregoing, the Court thus finds good cause for the neurological examination sought.   

CCP § 2032.320(d) requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.”  Defendants indicate the nature and scope of the examination in the moving papers: “The examination will consist of the taking of a medical history, a physical and neurological examination, blood pressure reading, height and weight measurements, strength and range of motion testing, mental status examination, cranial nerve testing, visual acuity testing, coordination, sensation and reflex testing, and observation of gait.” (Mot. p. 7, lines 5-9.) The list of potential tests in the moving papers is sufficient to permit Plaintiff to prepare for the examination. Moreover, Plaintiff did not oppose the motion or otherwise object to scope of the examination or any of the listed tests.  The Court therefore finds Defendants have met their obligation in this regard.   

 

Based on the foregoing, Defendants’ motion to compel Plaintiff’s neurological examination is GRANTED.   

 

Plaintiff is ordered to appear for a mental examination with Barry Ludwig, M.D. at 2811 Wilshire Boulevard, Suite 508, Santa Monica, CA 90403. Defense counsel must meet and confer to determine the date and time for the examination; if Plaintiff does not meaningfully participate in the meet and confer process, Defendants 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).     

 

Defendants are ordered to give notice.   

 

 

Dated this 13th day of September 2023