Judge: Steven A. Ellis, Case: 19STCV12357, Date: 2024-01-24 Tentative Ruling

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Case Number: 19STCV12357    Hearing Date: January 24, 2024    Dept: 29

Motion to Compel Second Physical Examination of Plaintiff filed by Defendant Ashley Garcia.

Tentative

The motion is DENIED.

Background

On April 10, 2019, Plaintiff Megan E. Magana (“Plaintiff”), filed the Complaint in this action against Defendants Ashley Garcia (“Defendant”) and Does 1 through 10, asserting one cause of action for motor vehicle negligence arising out of an accident that allegedly occurred on May 10, 2018, at or near the intersection of Hollenbeck Street and Walnut Creek Parkway in West Covina.  Defendant filed her Answer to the Complaint on June 3, 2019.

Defendant conducted a physical examination (by orthopedic consultant Dr. Edward Younger III) on January 9, 2020.  (Jedrzekek Decl., ¶ 3.)

On October 13, 2023, Defendant filed this motion to compel Plaintiff to appear for and be examined in a second physical examination.

Plaintiff filed her opposition on December 8.  Defendant filed her reply on December 15, 2023.

Legal Standard

Code of Civil Procedure section 2032.220 provides, in pertinent part:

(a)  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.

(b)  A defendant may make a demand under this article without leave of court ….

(c)  A demand 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 physician who will perform the examination.

(d)  A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand ….

If a plaintiff fails to comply, the defendant may move for an order compelling plaintiff to appear at and submit to a physical examination. (Code Civ. Proc., § 2032.240, subd. (b), and § 2032.250, subd. (a).)

If a defendant seeks a further physical examination of plaintiff, or a mental examination, the defendant must first file a motion and “obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).)  Such a motion must “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.” (Id., subd. (b).)  

The court may grant such a motion “only for good cause shown.” (Id., § 2032.320, subd. (a).)  A showing of good cause generally requires “that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.”  (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 840.)

The good cause standard protects the examinee from “excessive and unwarranted intrusions.”  (Sporich v. Super. Ct. (2000) 77 Cal.App.4th 422, 428.)  “Good cause is established by facts that ‘appear in the record as a demonstrable reality.’ [Citation.] Mere speculation, standing alone, will not suffice.” (Ibid., quoting People v. Gates (1987) 43 Cal.3d 1168, 1199.) For example, without further showing, an attorney’s stated opinion that an examination is necessary does not provide good cause. (Ibid.) 

 “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”  (Code Civ. Proc., § 2032.320, subd. (d).)  “The court is to describe¿in detail¿who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed.  The way to describe these ‘diagnostic tests and procedures’—fully¿and¿in detail—is to list them by name.” (Carpenter v. Super. Ct.¿(2006) 141 Cal.App.4th 249, 260.)¿¿ 

The moving party¿must support the motion with a meet and confer declaration.  (Code Civ. Proc., § 2032.310, subd. (b).)  A meet and confer declaration must state facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”¿ (Id., § 2016.040.)¿¿¿¿ 

The examination will be limited to whatever condition is “in controversy” in the action.¿ (Id., § 2032.020, subd. (a).) 

“If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved. (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.” (Code Civ. Proc., § 2032.320, subd. (e).)

Discussion

Defendant seeks a second physical examination of Plaintiff.  The first examination occurred in January 2020, and Plaintiff has not treated since 2018.  (Jedrzekek Decl., ¶¶ 3-4.)  According to Defendant, in August 2023, Plaintiff was examined by Dr. Sanjay Gosh, who stated that Plaintiff may be a candidate for lumbar microdiscectomy surgery or lumbar discectomy infusion surgery, at a cost of $80,000-$350,000.  (Id., ¶ 5.)  This new information, Plaintiff argues, is a change of circumstances and represents a significant increase in the potential damages in the case.  (Id., ¶ 6.)

The Court has carefully considered the evidence and argument presented by both sides. 

First, the Court does not find that Defendant has made a showing of good cause for the requested second physical examination.  Defendant has already conducted a physical examination of Plaintiff.  (Jedrzekek Decl., ¶ 3.)  The examiner was Dr. Edward Younger III, a board certified diplomat of the American Board of Orthopaedic Surgery.  (Id.; Gaines Decl., Exhs. 2-3.)  Following the examination, Dr. Younger issued a detailed written report that addressed (among other things) the condition of Plaintiff’s lumbar area, including her lower lumbar disk, and discussed the need (or absence of need) for further treatment or procedures.  (Gaines Decl., Exh. 1.)  Defendant also designated Dr. Younger as a retained expert to testify on (among things) Plaintiff’s injuries and future care and treatment.  (Gaines Decl., Exh. 2.)

In sum, Defendant has already had an orthopedic surgeon examine Plaintiff.  Defendant has not shown good cause for a second examination by another orthopedic surgeon, Dr. A.N. Shamie.  (Jedrzekek Decl., ¶ 7.)

On that basis alone, the motion is denied.

Second, and independently, the Court finds that Defendant has not made a showing of good cause for an order compelling Plaintiff to travel more than 350 miles for the requested examination.

Third, contrary to the arguments made in Defendant’s reply, there is no waiver here.  The waiver provisions of Code of Civil Procedure section 2032.240, subdivision (a), refer to a properly noticed first physical examination (as of right under the Civil Discovery Act, with no need for a prior court order).  Here, Defendant is seeking to conduct a second examination, for which a prior court order is required.  Failure to object to a “notice” of second examination, which is not authorized absent a prior court order, does not result in any waiver.

Conclusion

Defendant’s motion to compel a second physical examination of Plaintiff is DENIED.

Moving party is ORDERED to give notice.