Judge Serena R. Murillo, Case 20STCV01117 2022-09-06 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV01117, Date: 2022-09-06 Tentative Ruling

Case Number: 20STCV01117 Hearing Date: September 6, 2022 Dept: 29

Sayed Javeed Al Davood v. Sage Lianna Ellis, et al.

Tuesday, September 6, 2022

TENTATIVE

Defendants Sage Lianna Ellis and Robert Lemelson’s motion to compel a second independent medical examination of Plaintiff is GRANTED.

The court orders that plaintiff submit to an independent medical examination before Seth Gamradt, M.D., at 9033 Wilshire Blvd. Suit 400, Beverly Hills, CA 90211, on September 19, 2022, at 11:00 a.m., or within 30 days from this order at a mutually convenient date.

Legal Standard

C.C.P. §2032.220(a) provides, as follows:

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1)¿The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2)¿The examination is conducted at a location within 75 miles of the residence of the examinee.

C.C.P. §2031.310 provides, as follows:

(a)¿If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with¿Section 2032.210), or by a mental examination, the party shall obtain leave of court.

(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, if any, 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.

(c)¿Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.

C.C.P. §2032.320(a) provides, as follows: “The court shall grant a motion for a physical or mental examination under¿Section 2032.310¿only for good cause shown.”

Good cause generally requires a showing both of relevancy to the subject matter and specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial, ¶ 8:1157. “’Good cause’ may be found where plaintiff claims additional injuries, or that his or her condition is worsening; or even simply because of lapse of time (e.g., if it has been 3 or 4 years since the first exam and plaintiff claims continued symptoms, another physical examination before trial may be proper).” (Id., ¶ 8:1558.)

Discussion

Defendants argue that good cause exists to compel Plaintiff to submit to an orthopedic examination of plaintiff’s extremities to take place with Seth Gamradt, MD, a knee and shoulder specialist, as Plaintiff alleges that he suffered and continues to suffer from a long list of alleged injures concerning his neck, spine, shoulders, chest, and right knee, along with headaches. (Cain Decl. ¶ 3; Exh. A.) Plaintiff has previously undergone a physical examination with A.N. Shamie, M.D., a board-certified orthopedic spine surgeon. However, Defendants argue that because plaintiff’s physical injuries also include injuries to his extremities, specifically his knee and shoulders, and Defendants need to adequately assess all of the injuries claimed by the plaintiff. Further, Plaintiff was examined by a spine surgeon, Pablo Pazmino, M.D., for an initial orthopedic spine consultation. Then, Plaintiff sought extensive treatment with a knee, shoulder and hip specialist, Dr. Rajan Patel, who performed numerous specific tests to his extremities. As none of these tests were performed during plaintiff’s initial Independent Medical Examination (IME), Defendants argue that the additional IME will not be cumulative. Lastly, Defendants argue that good cause exists because Plaintiff testified that he did not have any ongoing further treatment to his right knee. However, records recently obtained by Defendant indicate that Plaintiff continues to treat with Dr. Patel, his knee specialist, who has recommended further treatment. This information was not previously made available to defendant, and thus defendant is requesting the second additional IME in order to evaluate these claims for damages.

The Court finds that Defendants have established good cause to compel Plaintiff to submit to a second IME. First, Plaintiff has been evaluated by another orthopedic knee and shoulder specialist, along with a spine surgeon. Plaintiff will have an advantage in relying on medical records or expert testimony from a range of doctors who have examined the full breadth of his injuries. The Court cannot simultaneously limit Defendants from having access to similar evidence. Second, it appears that Plaintiff’s knee injuries have worsened as further treatment has recently been recommended.

Conclusion

Therefore, Defendants’ motion to compel a second independent medical examination of Plaintiff is GRANTED.

Moving party is ordered to give notice.