Judge Ralph C. Hofer, Case BC699002 2022-10-21 Tentative Ruling

Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery. The complaint alleges that defendant was negligent per se and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn). The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.

The motion is a bit unclear, as it requests that the court order plaintiff to respond to and comply with defendants’ demands for supplemental physical examinations and supplemental deposition. Defendants argue that plaintiff was served with demands for further orthopedic IME and further deposition but did not respond so has waived any objection.

However, the moving papers recognize that defendants are limited to only one physical examination of plaintiff under statute, and that once a party has been deposed, a subsequent deposition may be permitted by the court, but only upon a showing of good cause. The moving papers concede that plaintiff has already submitted to a physical examination in this matter, and a deposition.

(b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

“(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”

Defendants here have served plaintiff with notices without first obtaining leave of court to serve such notices, and the court cannot on this motion enforce those notices and order plaintiff to respond or comply. The request for this relief accordingly could be denied, and the court could deny the motion outright on this ground, but elects not to do so. In any case, it is clear that plaintiff was under no obligation to respond to these improper notices, so has not waived any objection to submitting to this supplemental discovery.

The motion appears to be an attempt to establish good cause to conduct these additional physical examinations and to conduct a further deposition, and the opposition appears to treat the motion as one for leave to conduct this further discovery. Such relief is not clearly sought in the notice of motion, however, giving rise to due process concerns. The court will proceed with determining whether the moving papers have sufficiently established grounds for obtaining leave of court to pursue this supplemental discovery.

It is conceded by the moving papers that plaintiff has already attended a deposition and given testimony on April 17, 2019 and attended a physical examination with orthopedist Richard Rosenberg on April 30, 2019. Plaintiff points out in the opposition that plaintiff has also attended a second physical examination with a neurologist, Dr. Ludwig. [Opposition, Exs. 1, 2].

With respect to the further physical examinations, defendants request that defendants take an additional medical examination with the orthopedist who originally examined plaintiff, Dr. Rosenberg, because plaintiff has undergone an additional medical procedure since she was examined, a subsequent cervical spine fusion procedure which may have led to change in plaintiff’s physical condition. Defendants also seek that plaintiff attend an IME with a plastic surgeon, indicating that plaintiff first asserted claims of scarring and dermatological issues in March of 2022 (evidently by identifying a plastic surgeon expert and providing his

A showing of good cause generally requires the requesting party to show both relevancy to the subject matter, and specific facts justifying the discovery, in effect, specific facts showing the need for the information sought. See Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Weil & Brown, Civ. Proc. Before Trial (The Rutter Group, 2022 rev.) 8:1557. Weil & Brown note that the party should also show a lack of means for obtaining the information elsewhere. Id.

Weil & Brown note that good cause for permitting a second examination in personal injury cases can be shown in circumstances where plaintiff claims additional injuries, that the symptoms or conditions are worsening or that there has been a significant lapse of time since the initial exam. Civ.Proc. Before Trial, at 8:1558.

“Where 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 of harassment of plaintiff. [Shapira v. Sup. Ct. (Sylvestri) (1990) 224 Cal.App.3d 1249, 1255… (citing text)—second mental examination may be ordered.”

The moving papers rely on Shapira, cited in Weil and Brown, above, in which the court of appeal vacated a trial court order denying a motion to compel a second mental examination by a different mental specialist, finding that there was no limitation on the number of mental examinations which could be ordered, and directing the trial court to determine if good cause had been established for the second exam.

As set forth above, such a motion requires that the moving party, “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of the person or persons who will perform the examination.” Defendants in the motion identify Dr. Rosenberg as an orthopedist, and requests the examination be compelled, “for a date in the very near future,” but also indicates in a footnote that Dr. Rosenberg is currently out on medical leave, so that the examination may be conducted by a doctor of the same or similar specialty. This showing is an insufficient specification of the time, place, manner, conditions, scope, and nature of the examination, as well as the identity of the ultimate examiner. With respect to the plastic surgeon examination, none of this information is specified in the motion, not even the name of the examiner.

The information specified in the statute is necessary for the court to determine if there is good cause to permit these subsequent examinations, and particularly whether the second examination with an orthopedist will duplicate the first, and whether either examination present a proposed examination which would be objectionable and intrusive, take place at a place further than 75 miles from plaintiff’s residence, or be conducted by an appropriate licensed physician or health care practitioner. The motion could be denied on the ground the required information is not provided for the court in a sufficiently adequate fashion to make a determination on such a motion, but the court elects not to do so.

Defendant may be taking the position that the notices which are attached to the motion provide the information, but they are outdated and do not sufficiently specify the scope of the proposed examinations to permit the court to determine if they are sufficiently supported by the good cause urged. [See Exs. F, K].

With respect to good cause, it would appear that in January of 2020, after plaintiff’s orthopedic examination in May of 2019, plaintiff underwent a subsequent surgery, and indicated she had undergone such a procedure in discovery responses served on February 3, 2020. [Ex. C].

Defendants argue that it is necessary to explore any change in plaintiff’s condition due to this surgery, and due to the passage of time since the initial examination. This fact would, at best, show good cause for conducting a second orthopedic examination limited to the time frame since the previous examination and areas affected by the surgery. As pointed out in the opposition, the notice relied upon appears to contemplate an entirely new history and new examination without limitation, which is overly broad and intrusive. Plaintiff also points out that the burden will be especially improper if an entirely new orthopedist is the examiner, as a new examiner will require the same background material already provided previously.

Plaintiff also argues that with respect to the request for a new examination by a plastic surgeon, it has been clear throughout this action that plaintiff had scarring to her neck from surgical intervention, and the scarring was extensively noted in Dr. Rosenberg’s report, and the new surgery does not drastically change the nature of the scar. Plaintiff refers to Exhibit 1, p. 44, but there is no page 44. The reference may be to page 5, in which the Dr. Rosenberg reports on his examination and notes, “Examination of the cervical spine shows an almost invisible, well healed right sided anterior cervical discectomy incision.” [See Ex. 1, p. 5]. Plaintiff also argues that defendants concede they have been aware of plaintiff’s plastic surgeon expert since March of 2022, but have not designated a counter plastic surgeon expert, and have not conducted any discovery into the issue.

Plaintiff in opposition also argues that the surgery was in January of 2020, defendants have known about it since February of 2020, and it is now two years later, on the eve of trial, that defendants are seeking relief, without explanation for such a delay. Plaintiff also points out defendants are seeking to compel discovery to be completed after the discovery cut off in this matter.

Under CCP § 2024.020 (a), “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”

Here, the motion is set to be heard on October 21, 2022. This is on or before the 15th day before the date set for trial, so the motion itself is not barred by the discovery cut off. However, the 30th day before the date set for trial was October 8, 2022, so that if the court were to permit leave to conduct the requested discovery, the discovery could not be noticed or conducted within the deadline but would be weeks late.

This motion does not affirmatively seek this relief. Plaintiff argues that the current trial date is only four months away from the five-year statute, making a trial continuance an unattractive solution, and argues that discovery in this matter has closed and defendants are estopped, by their dilatory conduct, from such broad discovery on the eve of trial. The motion could be denied on the ground it seeks to conduct discovery beyond the discovery cut off date, in violation of plaintiff’s entitlement as a matter of right to complete discovery proceedings on or before the 30th day before the date set for trial, but the court elects not to so.

Overall, the court notes that there are significant shortcomings in the motion discussed above, but the motion supports a finding of good cause for a limited supplemental orthopedic examination. The supplemental examination is limited to the time since the original examination, on April 30, 2019, and areas affected by the supplemental surgery, to be conducted by the same orthopedist already approved by the court, Dr. Rosenberg, limited to a two-hour examination. The court has been provided insufficient information to determine any good cause for any different or more extensive examination. The court would also consider finding good cause to conduct the discovery closer to the trial date, or to briefly continue the trial date. The court does not find good cause has been established to conduct a physical examination by a plastic surgeon, given the failure of defendants to previously pursue discovery of this nature, and to follow the usual expert designation processes to counter-designate an expert in the area. The cause for any need for an examination by as plastic surgeon at this late date lies in the conduct of defendants in this litigation, which could have been avoided.

Defendants argue that a supplemental deposition is necessary as over three years have passed since plaintiff was initially deposed, and it is likely her physical condition has changed, particularly given the subsequent cervical spine fusion procedure has since undergone. Defendants also argue that the alleged scarring to plaintiff’s throat was not mentioned in discovery, and defendants’ counsel was unable to question plaintiff regarding this injury during the original deposition. Defendants also argue that a life care plan submitted by plaintiff’s expert includes future treatment, which supports a limited, supplemental deposition of plaintiff.

As discussed above, the court could deny this relief on the ground the motion does not support the relief sought. The motion seeks an order that plaintiff respond to, and comply with, a notice of deposition for a supplemental deposition which was served without advance permission of the court, and that the discovery be completed outside the discovery cutoff date.

The court will permit this supplemental discovery, any deposition is limited to questions regarding (1) plaintiff’s injuries and damages as developed since the date of the previous deposition on April 17, 2019, including those directly pertaining to the January 2020 surgery, (2) plaintiff’s complaints of and plans for treatment due to scarring, and (3) future treatment recommended to and contemplated by plaintiff since the previous deposition. Such a deposition shall take no longer than three hours.

Defendants Guillermo Eduardo Padilla, Jr. and Greenwood Motor Lines, Inc. dba R+L Carriers’ Motion to Compel Response to and Compliance with Supplemental Physical Examinations and Supplemental Deposition of Plaintiff is GRANTED IN PART.

1) A supplemental physical examination of plaintiff Lisa Goodrich, to be conducted by Dr. Richard Rosenberg, at a place within 75 miles of plaintiff’s residence, limited to physical symptoms and developments since the original examination, on April 30, 2019, and areas affected by the supplemental surgery.

2) A supplemental deposition of plaintiff, limited to limited to questions regarding (1) plaintiff’s injuries and damages as developed since the date of the previous deposition, April 17, 2019, including those directly pertaining to the January 2020 surgery, (2) plaintiff’s complaints of and plans for treatment due to scarring, and (3) future treatment recommended to and contemplated by plaintiff since the previous deposition.

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