SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Iris Carmina Escobar Alba (“Plaintiff”) filed this action against Defendants Rexdeo Properties LTD dba Rexdeo Apartments and Envoy Properties Inc. (“Defendants”) for damages arising from a slip and fall on a common area walkway of an apartment building owned and managed by Defendants.    

At this time, Plaintiff moves for an order of compelling Defendants to produce Eric S. Millstein, M.D.’s (“Dr. Millstein”) defense medical examination report concerning Plaintiff’s physical examination that is code-compliant with Code Civ. Proc. § 2032.610.   

Defendants oppose the motion, and Plaintiff filed a reply. 

(2) A copy of reports of all earlier examinations of the same condition of the examinee made by that or any other examiner. 

(b) If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier. 

 

“If the party at whose instance an examination was made fails to make a timely delivery of the reports demanded under Section 2032.610, the demanding party may move for an order compelling their delivery. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2032.620(a).)   

 

Here, Plaintiff attended her physical examination with Dr. Millstein on September 18, 2023. On October 12, 2023, October 19, 2023, and November 6, 2023, Plaintiff’s counsel requested defense counsel provide a copy of Dr. Millstein’s report. On November 8, 2023, Plaintiff’s counsel received Dr. Millstein’s report. However, Plaintiff contends that the report does not comply with CCP §2032.610 because the report failed to include any of Dr. Millstein’s “diagnoses, prognoses and conclusions.” Plaintiff contends the report served is not complete, and seeks a further report compliant with CCP §2032.610 either providing those details. 

In opposition, Defendants acknowledge service of the report was untimely, but contest that Dr. Millstein’s report is deficient. Defendants argue Dr. Millstein’s report contains the history Plaintiff was allowed to provide, describes the examination, discusses Dr. Millstein’s findings, records the test results, and includes all conclusions made about Plaintiff’s condition based on the examination. Defendants contend the report does address the points of “diagnoses, prognoses and conclusions.” In terms of diagnoses, Defendants argue this was fulfilled by Dr. Millstein’s summary section that Plaintiff’s examination is consistent with the surgical procedure and that there are no objective signs of loss of motion nor mechanical instability. Defendants argue Dr. Millstein does not have any prognoses based on his conclusions of Plaintiff’s physical maladies. Lastly, Defendants aver the report plainly contains all of Dr. Millstein’s conclusions in the summary section that Plaintiff’s physical examination demonstrates subjective pain/tenderness with no loss of motion nor mechanical instability. 

In reply, Plaintiff contends the report does not set forth any prognosis because it does not address the need for any future medical treatment such as total knee replacement and/or hardware removal, and that the whole purpose of the examination was to address the future care needs of Plaintiff. Plaintiff argues if the expert does not in fact have any opinion regarding future care, then that opinion should be reflected in the report.  

The Court reviewed the subject report. The Court agrees that, although short and bare, partially due to Plaintiff’s accompanied observer Brian Levine instructing Plaintiff to not respond to questions concerning Plaintiff’s past history and prior injuries, the report is statutorily compliant in part. Dr. Millstein’s report provides a diagnosis (the nature of Plaintiff’s injury being her left knee from falling on a wet floor, in which she had surgery on August 4) and conclusion that Plaintiff demonstrates subjective pain/tenderness without loss of motion or mechanical instability. However, the Court also agrees that it does not contain any prognoses, and that defense counsel’s contention that Dr. Millstein had none should be clearly reflected in the report.  

 

Based on the foregoing, Plaintiff’s motion is GRANTED IN PART; Defendants are ordered to produce within thirty (30) days of this Order an amended copy of Dr. Millstein’s report addressing Dr. Millstein’s prognoses. (CCP § 2032.610(a)(1).) 

 

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel delivery of medical reports under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2032.620(b).) Both Plaintiff and Defendants request the imposition of monetary sanctions. Because there was justification for Plaintiff to bring the motion, but also justification for Defendants to oppose the motion, the Court declines to award sanctions to any party.  

 

Moving party is ordered to give notice.