I. Background 

Plaintiff Armand Ramirez (“Plaintiff”) filed this action against defendants Macy’s for damages arising from a trip and fall over a moving cart. Trial is currently set for April 29, 2024.  

On November 17, 2023, defendant Macy’s Retail Holdings, LLC (erroneously sued as Macy’s) (“Defendant”) filed the instant motion for leave to obtain an additional independent medical examination (“IME”) of Plaintiff with Defendant’s neurosurgeon Paul E. Kaloostian, M.D. (“Dr. Kaloostian”) for Plaintiff’s alleged spinal injury.  

Any opposition was due on or before February 15, 2023; none 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.)  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.) 

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.) 

Defendant brought a similar motion to compel Plaintiff to attend a physical examination with spine surgeon Dr. Spoonamore, which was heard on February 29, 2024. At the February 29, 2024 hearing, Defendant provided that the proposed examination of Plaintiff’s spine with Dr. Kaloostian is neurological, as opposed to Dr. Spoonamore’s orthopedic examination. The Court construes Plaintiff’s failure to oppose as consent to the granting of the motion. (CRC, rule 8.54.) 

Therefore, Defendant’s unopposed motion to compel Plaintiff’s examination with Dr. Kaloostian is GRANTED. 

Plaintiff is ordered to appear for a physical examination with Dr. Kaloostian at 960 East Green Street, Suite 320, Pasadena, CA 91106. The parties 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, 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). The proposed scope of the examination, as well as the manner, conditions, and nature of the examination as set forth in the Notice of the motion 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