SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Scott Coleman (“Plaintiff”) filed this action against Defendant Joshua Finn (“Defendant”) for damages arising from a motor vehicle incident.  

At this time, Defendant moves for an order compelling Plaintiff to appear for an examination with neurologist Dr. Jeffrey Bounds (“Dr. Bounds”) at 11370 Anderson St., Suite B100, Loma Linda, CA 92354 on December 19, 2023 at 11:00 a.m. Defendant contends a neurological examination is necessary because Plaintiff claims traumatic brain injury from the incident.    

Any opposition was due on or before November 17, 2023; none was filed.   

 

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, Defendant avers he noticed Plaintiff’s examination with neurosurgeon Dr. Paul Kaloostian  to evaluate Plaintiff’s spine injuries, and with neurologist Dr. Bounds for Plaintiff’s traumatic brain injury claim. Defendant provides that Plaintiff identified in written discovery neurological conditions of dizziness, weakness, fatigue, headaches, tingling, numbness of the extremities, and tinnitus 24 hours a day. Plaintiff objected only to the neurological examination. The parties met and conferred, and Plaintiff’s counsel stated he would not produce Plaintiff for a second examination without a court order. The parties met and conferred again, and defense counsel argued that Plaintiff has placed into controversy two different injuries, a traumatic brain injury claim and spine injury claim, which requires an evaluation in two different specialties. As of the last telephonic conversation with Plaintiff’s counsel, defense counsel avers Plaintiff’s counsel stated he would speak with Plaintiff, and has not indicated since whether Plaintiff will be waiving the traumatic brain injury claim or if they will stipulate to a second examination.  

Plaintiff did not oppose the motion to dispute that Plaintiff has put these conditions at issue, such that his claimed injuries necessitate an 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.” Defendant provides that the manner of the exam is neurological, and the nature of the exam is to take history and include testing, in which the examination will not include any diagnostic test that is painful, protracted or intrusive. The scope includes cranial nerves, sensory examination, examination of the deep tendon reflexes, motor examination, examination of Plaintiff’s coordination, and examination of Plaintiff’s station and gait. Further, Defendant provides a detailed description of the diagnostic test and procedures as follows: 

 

The cranial nerve examination includes evaluation of the nerves in the head and face including eye movement, visual fields, bulbar functions, and hearing. For the sensory examination, several stimuli are used to analyze sensory nerves that extend from the extremities to the brain. None of the tests in the sensory examination will be painful or intrusive. The deep tendon reflexes will be examined in the upper and lower extremities for degree of activity and symmetry. For the motor examination, muscular bulk and tone are evaluated, followed by sequential evaluation of strength in upper and lower extremities. The responses are compared to expected results from a normal population. For coordination, Plaintiff will be evaluated for involuntary movements and ability to perform extremity and trunk movements in a stable manner. For station and gait, Plaintiff will be observed sitting, standing, ambulating, and ambulating on heels and toes. The Romberg test is generally completed. None of the outlined portions of the neurological examination are painful or intrusive. The complete evaluation will likely take 60-90 minutes. 

(Mot. at p. 8, lines 1-15.) 

The diagnostic tests and procedures, conditions, scope, and nature of the examination are described in the moving papers are sufficiently detailed to apprise Plaintiff of the exam and for Plaintiff to prepare for it. 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 Defendant has met his obligation in this regard.    

 

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

 

Plaintiff is ordered to appear for a neurological examination with Dr. Jeffrey Bounds at 11370 Anderson St., Suite B100, Loma Linda, CA 92354. Because it is unknown whether Plaintiff is available on December 19, 2023 at 11:00 a.m., 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).