I. BACKGROUND 

Plaintiff, Thomas Handzlik (“Plaintiff”) filed this action against Defendant, Hendrik J.W. Weenink, et al. for damages arising from an automobile incident.   

At this time, Defendant Hendrik J.W. Weenink, erroneously sued as Hendirk J.W. Weenink, (“Defendant”) moves to compel Plaintiff’s independent medical examination (“IME”) and requests monetary sanctions.  

This matter was initially set to be heard on February 5, 2024. However, pursuant to the stipulation between the parties, who met and conferred on the issue, the hearing was continued to March 14, 2024. (Stip. and Order, Feb 2, 2024.) The parties agreed that once Plaintiff’s IME is completed, that Defendant would withdraw the motion. (Ibid.)  

The motion was not withdrawn. On March 1, 2024, Plaintiff filed an opposition, and Defendant filed a reply. The Court will not consider Plaintiff’s “sur-reply” filed on March 11, 2024.  

II. MOTION TO COMPEL PHYSICAL EXAMINATION  

CCP § 2032.220 states: 

CCP § 2032.240 provides that, when a plaintiff fails to respond to a demand, the defendant may move for an order compelling a response to the demand and compelling compliance with the request for an exam. CCP § 2032.310 further provides that the motion shall be accompanied by a meet and confer declaration under Section 2016.040.   

Here, the parties stipulated to Plaintiff’s IME would appear for his IME with Dr. Nick Nenadovich at 3691 Willowcreek Rd, Portage, IN 46383 on either February 22, 2024 or February 29, 2024. (Stip & Order ¶ 5.) However, the IME did not move forward because Plaintiff was requested to sign forms, and Plaintiff refused. As such, Plaintiff left the examination. Further, Plaintiff argues he should not be charged for the late cancellation or a no-show because Plaintiff appeared and then left. In reply, Defendant argues that there was no reason for Plaintiff to not complete the examination over a consent form, and that Plaintiff’s counsel unilaterally instructed his client to leave the examination without discussing the issue with defense counsel. Further, Defendant argues Dr. Nenadovich’s fee is not at issue, because it was not charged to Plaintiff and has already been paid by defense counsel. 

In this case, Defendant properly served Plaintiff with a notice to appear for Plaintiff’s physical exam, and Plaintiff failed to appear. Merely appearing at Dr. Nenadovich’s office but not proceeding with the examination is equivalent to a no-show, because in effect Plaintiff may as well have not appeared at all. Further, Plaintiff does not fully articulate his objection to any forms that Plaintiff was requested to sign, nor does Plaintiff provide a proper basis to not proceed with his deposition over this. As a personal injury plaintiff, Plaintiff is required to submit to a defense medical examination pursuant to Code of Civil Procedure section 2032.220. Plaintiff’s opposition does not provide any valid grounds for refusing to proceed with his IME.  

Accordingly, Defendant’s motion to compel the physical examination of Plaintiff is GRANTED.   

Plaintiff is ordered to appear for a physical examination with Dr. Nenadovich at 3691 Willowcreek Rd Portage, IN 46368, pursuant to the agreement previously reached by the parties. 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, manner, conditions, and nature of the examination may not be expanded from the previous IME notice in connection with the compelled examination.   

III. SANCTIONS 

CCP § 2032.240(c) requires the court to impose sanctions in connection with a motion to compel physical examination unless the court finds Plaintiff acted with substantial justification or other circumstances make imposition of sanctions unjust.  Plaintiff has not provided any justification for failing to proceed with his IME due to a dispute over a consent form. Plaintiff’s request for sanctions against Defendant is denied. Defendant requests sanctions of $1,000 for the motion, reviewing Plaintiff’s opposition, drafting the reply, and to appear at the hearing at a rate of $250 per hour. The Court finds sanctions against Plaintiff is warranted here.  

Sanctions are sought and imposed against Plaintiff and Plaintiff’s attorney of record, jointly and severally. Plaintiff and/or Plaintiff’s counsel are ordered to pay sanctions to Defendant, by and through counsel of record, in the amount of $1,000, within twenty days. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 13th day of March 2024