I. BACKGROUND 

Plaintiff Juan Pablo Alcantar, by and through his Guardian Ad Litem, Anita Gonzalez (“Plaintiff”) filed this action against defendant Alexander Escalante (“Defendant”) for injuries arising from a motor vehicle v. bicycle incident. 

Defendant now moves for an order compelling Plaintiff to appear for a second physical examination (“IME”) with neurologist Lorne Label, M.D. (“Dr. Label”) Plaintiff opposes the motion, and Defendant filed a reply.  

Defendant contends Plaintiff claims headaches, memory issues, frustration, anger issues, and difficulty focusing as a result of the incident, and that he has seen a neurologist for his injuries. Plaintiff previously submitted to an orthopedic examination, and will be undergoing a mental examination with Defendant’s neuropsychologist. Defendant seeks Plaintiff to undergo an additional evaluation with a neurologist to examine Plaintiff’s neurological and cognitive injuries. 

Defendant asserts that the neurological examination is different from the neuropsychological examination, because a neurologist assesses physical symptoms and causes of brain disorders to rule in or out the presence of organic brain injury. On the other hand, a psychologist is to diagnose mental disorders, learning disabilities, and emotional and behavioral issues. Defendant argues because Plaintiff has been treated by a neurologist for his injuries, that it is only fair that Plaintiff also be examined by Defendant’s own neurologist. The parties were unable to resolve the issue after meeting and conferring. 

Plaintiff argues that the neurological examination is cumulative. Plaintiff also asserts that the motion is defective because it does not specify the diagnostic tests and procedures and that the examination sought improperly seeks a medical history examination of Plaintiff. Further, Plaintiff avers that just because Plaintiff was treated by a neurologist does not establish good cause, and that Defendant fails to identify which conditions Dr. Label is specifically testing for.  

Defendant contends the motion is not defective, and that it has set forth in detail all procedures Dr. Label may perform during the examination. Further, Defendant avers that the taking of medical history is standard procedure, and an integral part of the physical examination to assist the examining doctor in forming an opinion about the diagnoses and prognosis of Plaintiff’s condition. Lastly, Defendant argues that the purpose of the examination is not to re-take Plaintiff’s deposition outside the presence of his counsel, because CCP § 2032.510 permits Plaintiff’s attorney or attorney’s representative to attend and observe the examination, and to record it.  

II. MOTION TO COMPEL SECOND 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.)  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. The moving party must also establish good cause for the examination(s) sought. (CCP § 2032.320(a). 

Here, Plaintiff previously underwent an orthopedic examination. Defendant has sufficiently delineated the differences between the proposed physical neurological examination with Dr. Label and the mental neuropsychological examination to be conducted with Dr. Dunn. Plaintiff has not sufficiently supported his contention that a portion of the neurological examination to test Plaintiff’s mental status would be entirely duplicative of Dr. Dunn’s mental examination. The Court therefore finds good cause for a neurological examination of Plaintiff. Further, in terms of meeting the requirements of CCP § 2032.320(d), the Notice provides that:  

“The examination will consist of a mental status examination which includes orientation, comprehensive and expressive speech, serial sevens, spelling a simple word, recalling 5 words to check memory, and Montréal Cognitive Assessment. The examination will also include checking all cranial nerves; a motor exam which includes checking tone, strength and reflexes, palpating any injured muscle areas; cerebellar which includes standing with feet together, standing on one foot, tandem gait, finger to finger touching, heel to shin and finger to nose touching; a sensory exam which includes checking light touch, sharp touch, cold touch and vibration in all 4 extremities; gait – watching the person walk, walking on toes and heels; and stance-watching - the person stand.”  

(Mot. 2:22-28; 3:1-2).  

The Court finds that this is sufficient to provide Plaintiff notice of the tests/procedures, conditions, scope, and nature to permit Plaintiff to prepare for the examination. Plaintiff relies upon City of Hayward v. United Public, etc. (1976) 54 Cal.App.3d 761, 766, arguing that the taking of Plaintiff’s medical history is improper for a physical examination. Contrary to Plaintiff’s contention, City of Hayward, which involves issues of an agency shop agreement between the City and a union, has no bearing here. The quote cited by Plaintiff provides, “A court may not add to or detract from a statute or insert or delete words to accomplish a purpose that does not appear on its face or from its legislative history.” (Id. at 766) However, the issue of the case relates to the Meyers-Milias-Brown Act (Gov.Code, §§ 3500—3510) and its construction rendering meaningless CCP §§ 3502 (right to join or abstain) and 3506 (discrimination prohibited). Unlike in City of Hayward, there is no actual clash between statutes here to nullify a contractual provision.  

In reliance on Golfland Ent. Centers, Inc. v. Superior Ct. (2003) 108 Cal. App. 4th 739, Plaintiff also argues that because he has already submitted to a physical examination, that cumulative history-taking is prohibited. However, Plaintiff does provide the full context for the Golfland court’s analysis. In Golfland, the trial court used its discretion to order that the examining doctor be forbidden from eliciting “narrative” responses from Plaintiff. The appellate court found that the trial court not properly limit the doctor’s questioning of plaintiff with respect to matters affecting his psychiatric conditions, symptoms, relationships, and so forth, and remanded the case with directions that the doctor may take a history of the plaintiff, but the doctor shall not ask questions regarding facts and circumstances of the accident to the extent that it was already stated by plaintiff in his deposition or interview with another doctor. (Id. at 746.) Further, the court specifically added that there was no suggestion that a limitation imposed by the trial court on the examining expert is a preferred procedure that should be used, and affirmed the broad discretion of the trial court. (Ibid.) In other words, Golfland does not stand for the proposition that there should be a limit imposed on the examining expert, or that Defendant’s expert is barred, altogether, from taking an oral history of Plaintiff’s symptoms and conditions.  

The Court agrees with Defendant that Plaintiff’s medical history is necessary for Dr. Label to form an opinion of Plaintiff’s condition. The Court is not persuaded by the argument that the taking of Plaintiff’s medical history is somehow a disguised attempt to “backdoor” an “unfettered second deposition.” As pointed out by Defendant, any concerns Plaintiff may have about questions asked by Dr. Label is ameliorated by CCP section 2032.510, which permits Plaintiff’s attorney or representative to attend and observe the examination, and to audio record it. 

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

III. CONCLUSION 

Plaintiff is ordered to appear for a physical examination with Dr. Label at 2190 Lynn Road, Suite 380, Thousand Oaks, CA. The parties must meet and confer to determine the date and time for the examination to be completed within the next thirty (30) days; if Plaintiff does not meaningfully participate in the meet and confer process, the 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 scope of the second examination provided in the moving papers may not be expanded in connection with the compelled exam. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 9th day of April 2024