Judge Serena R. Murillo, Case 20STCV31300 2023-02-07 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV31300, Date: 2023-02-07 Tentative Ruling

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Case Number: 20STCV31300 Hearing Date: February 7, 2023 Dept: 29

Julie Bebek v. Clare Olson, et al.

Tuesday, February 7, 2023

CASE NUMBER: 20STCV31300

[OPPOSED]

Motion to Compel Second Independent Medical Evaluation filed by Defendants Clare Olson, C.L. Olson & Associates, Inc., and Irvine Welding, Inc.

Background

On August 18, 2020, Plaintiff Julie Bebek filed this action against Defendants Clare Olson, C.L. Olson & Associates, Inc., and Irvine Weding, Inc., for motor vehicle negligence, stemming from a vehicle collision that occurred on August 28, 2018.

On January 10, 2023, Defendants filed the instant motion to compel Plaintiff to attend a second independent medical examination. On January 25, 2023, Plaintiff filed an opposition. On January 31, 2023, Defendants filed a reply.

Summary

Moving Arguments

Defendants argue that good cause exists to compel Plaintiff to submit to an orthopedic examination of plaintiff’s knees to take place with Ronald S. Kvitne, M.D., as Plaintiff alleges, by way of responses to written discovery and at deposition, a wide range of complex injuries, including injuries to her neck, left shoulder, chest, hips, both knees and lower back. Moreover, Plaintiff has testified that she underwent right L3-4 lumbar epidural steroid injection with platelet-rich plasma, right knee arthroscopic medial and lateral menisci partial meniscectomy, right knee arthroscopic partial synovectomy, right knee joint injection, transforaminal epidural steroid injections at left and right L5 and S1 and transforaminal epidural steroid injections at left and right L5 and S1 and that she is currently treating both knees. Plaintiff has alleged that her right knee injury is permanent and will necessitate future treatments including but not limited to a total knee arthroscopy. Dr. Kvitne is a Board-Certified Orthopedic Surgeon specializing in the lower extremity and knee injuries.

The first independent medical examination (IME) of Physical was performed by Jennifer Kaur R. Sohal, M.D., a board-certified orthopedic spine surgeon, on December 8, 2021. Dr. Sohal was retained by Defendants to render opinions solely regarding Plaintiff’s neck and back complaints. Dr. Kvitne has indicated that Dr. Sohal’s IME Report fails to include the significant knee-related testing for which a specialist of knee injuries must depend on. (Kvitne Decl., at ¿ 1, 7-9). Moreover, Defendants argue, Dr. Kvitne must be afforded the opportunity to conduct a more detailed examination of Plaintiff knee by way of inspection and palpation examinations, stability testing, testing of muscle strength and tone, testing of sensation and neurologic function as well as an opportunity to conduct a more thorough discussion with Plaintiff regarding her knee symptoms. (Id).

On February 25, 2022, Plaintiff’s attorney refused to produce Plaintiff for a second IME with Dr. Kvitne’s. (Hovsepian Decl., at ¿ 4 and Exhibit 4). On March 16, 2022, Defendants served a Second Amended Notice of Independent medical Examination to be conduct with Dr. Kvitne on August 22, 2022. (Hovsepian Decl., at ¿ 6 and Exhibit 6). On May 18, 2022, Defendants attorney met and conferred with Plaintiff’s attorney regarding Dr. Kvitne’s IME. Plaintiff’s attorney was informed that Dr. Sohal’s opinions were limited to Plaintiff’s neck and back complaints while Dr. Kvitne’s opinions were limited to Plaintiff’s knee complaints. Defendants were and are still willing to stipulate in this regard. Further Plaintiff’s attorney was informed that Dr. Kvitne has a subspecialty in the lower extremities and would be greatly limited if he was forced to rely on Dr. Sohal’s reports. Plaintiff requested additional time to consider Defendants’ request. (Hovsepian Decl., at ¿ 7 and Exhibit 7). On August 9, 2022, Plaintiff’s attorney informed Defendants that Plaintiff would not appear for a second IME absent this Court’s order.

Opposing Arguments

Plaintiff filed an opposition arguing that Defendants have not shown good cause as Dr. Sohal already performed an orthopedic examination of all of plaintiff’s claimed musculoskeletal injuries, including the knees. While Defendants contend that Dr. Sohol “has been retained to render opinions solely regarding Plaintiff’s neck and back complaints,” regardless of what Dr. Sohol was “retained” for, it was indicated in defendant’s notice of physical examination that Dr. Sohal would be examining plaintiff’s “orthopedic injuries...[and that she] he will conduct a review of the patient’s symptoms and history...perform tests involving skeletal system and associated muscles, joints, and ligaments.” (See Exhibit 1, Defendant’s Notice of Physical Examination.) The notice for the first examination did not in any way indicate that the exam would be limited to the neck and back. Further, as previously noted, Dr. Sohal’s physical examination included a history, examination, diagnostic impressions and discussions related to the knees. (See Exhibit 2, Dr. Sohal’s report.) Indeed, the defendants concede that plaintiff’s knee has already been examined and discussed, but they want “the opportunity to conduct a more detailed examination of Plaintiff’s knee...” Defendant already had the “opportunity” to examine and in fact did so. Defendant now want another bite of the apple for a “more detailed” exam. If Dr. Sohal was not “retained” to examine and opine as to plaintiff’s knee, why did defendant’s notice of examination not clarify this point? Why is that Dr. Sohal proceeded to examine, opine and discuss the knee? Why is that Dr. Sohal’s report refers to her examination and opinions about the knees? Could it be that defense counsel is not pleased with Dr. Sohal’s opinions regarding the knees and now wants to shop around for a better defense advocate that will agree with defense’s position? It is not good cause to ask for a “more detailed” second examination of the same type (i.e., orthopedic) and of the same body parts simply because the defense does not like Dr. Sohal’s opinion and wants a different opinion.

Plaintiff argues that defense counsel did not meet and confer until after the first examination was already completed. In other words, prior to the first exam, defense counsel did not “meet and confer” with plaintiff’s counsel to inform him that it was their intent to one exam of plaintiff’s neck and back only and then a second back for the knees.

Reply Arguments

Defendants’ experts have specialties in different fields and their opinions will relate to different body parts. Dr. Sohal’s examination did not include significant knee related testing. (Kvitne Decl., ¶ 7.) The various tests Dr. Kvitne will need to conduct on Plaintiff’s knee which cannot be gathered from Dr. Sohal’s reports, includes but is not limited to:

“a. Inspection and Palpation examination of the distal quadriceps tenderness and defect, medial patellar and lateral patellar facet tenderness, patellar tendon tenderness and defect, medial epicondylar, joint line and tibia tenderness, lateral epicondylar, joint line and fibula tenderness, effusion, alignment, ecchymosis, and evaluations of Plaintiff’s scars, spasms, an evaluation of the medial, lateral and patella crepitus, thigh atrophy and calf atrophy.

b. Stability and provocative testing of patellar apprehension, abnormal passive patellar translation and tilt, lateral and medial McMurray’s sign, MCL (Valgus), LCL (Varus) and PCL (posterior drawer) testing, posterolateral rotatory instability testing, ACL, Lachman’s test, pivot shift, and testing of the generalized ligamentous laxity.

c. In order to opine regarding Plaintiff’s knee injuries and alleged knee symptoms I must also be afforded the opportunity to conduct a more detailed examination of Plaintiff’s muscle strength and tone to her quadricep and hamstring muscles.

d. Also, as is necessary to properly formulate my opinion I must conduct a more detailed sensation and neurologic function evaluation of Plaintiff’s distal sensation and examination of Plaintiff’s reflexes and femoral, posterior tibialis, dorsalis pedis, cyanosis vascularity. As well as an examination of calf tenderness, edema and Homan’s sign.

...
Furthermore, my evaluation will necessitate a more thorough discussion with Plaintiff regarding her knee symptoms. I must be afforded the opportunity to question Plaintiff regarding the frequency, duration, character, aggravating and resolving factors of her symptoms, radiation and neurological symptoms experienced.”

(Kvitne Decl., ¶¶ 8-9.)

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…).” (Id., ¶ 8:1558.)

Discussion

On February 25, 2022, Plaintiff’s attorney refused to produce Plaintiff for a second IME with Dr. Kvitne’s. (Hovsepian Decl., ¶ 4; Exh. 4.) On March 16, 2022, Defendants served a Second Amended Notice of Independent medical Examination to be conduct with Dr. Kvitne on August 22, 2022. (Id., ¶ 6; Exh. 6.) On May 18, 2022, Defendants’ attorney met and conferred with Plaintiff’s attorney regarding Dr. Kvitne’s IME. Plaintiff’s attorney was informed that Dr. Sohal’s opinions were limited to Plaintiff’s neck and back complaints while Dr. Kvitne’s opinions were limited to Plaintiff’s knee complaints. Defendants were and are still willing to stipulate in this regard. Further, Plaintiff’s attorney was informed that Dr. Kvitne has a subspecialty in the lower extremities and would be greatly limited if he was forced to rely on Dr. Sohal’s reports. Plaintiff requested additional time to consider Defendants’ request. (Id., ¶ 7; Exh. 7.) On August 9, 2022, Plaintiff’s attorney informed Defendants that Plaintiff would not appear for a second IME absent this Court’s order.

The Court first finds the meet and confer requirement has been met. Plaintiff argues that defense counsel did not meet and confer until after the first examination was already completed. In other words, prior to the first exam, defense counsel did not “meet and confer” with plaintiff’s counsel to inform him that it was their intent to one exam of plaintiff’s neck and back only and then a second back for the knees. However, this is a narrow reading of the meet and confer requirement. Nowhere in the meet and confer requirement does it specify that the process must occur before the first examination. Moreover, it would be impractical to meet and confer prior to the first examination because in some instances, the need for a second IME may arise later in the case. For example, Plaintiff may claim additional injuries midway through a case, and the need to conduct a second IME will be arise later down the line after the first IME has been completed.

There is no specific limit on the number of available mental or physical examinations and multiple defense examinations are permitted on the necessary showing of good cause.¿ (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)¿ “ ‘Good cause’ is a factual question which the trial court should resolve in the first instance.”¿ (Id. at p. 1256.)

The court finds that Defendants have shown good cause. The second IME involves examination and testing of a different injury of Plaintiff’s (the knees) than the first IME (neck and back). Additionally, the first medical examiner specialized in spinal evaluations. The proposed independent medical examiner specializes in the lower extremities and knees. Moreover, Dr. Kvitne has indicated that Dr. Sohal’s IME Report fails to include the significant knee-related testing for which a specialist of knee injuries must depend on. Dr. Kvitne needs to conduct additional testing of the knees. Further, Plaintiff’s knee injury is ongoing and at issue.

Conclusion

Therefore, Defendants Clare Olson, C.L. Olson & Associates, Inc., and Irvine Welding, Inc.’s motion to compel a second independent medical examination of Plaintiff Julie Bebek is GRANTED.

The court orders that Plaintiff Julie Bebek submit to an independent medical examination before Ronald S. Kvitne, M.D., at 2275 Huntington Dr., #124, San Marino, CA 91108, on February 15, 2023, at 9:15 a.m., or within 30 days from this order at a mutually convenient date.