Judge Steven A. Ellis, Case Number: 22STCV32554, Date: 2024-11-22 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV32554, Date: 2024-11-22 Tentative Ruling

Case Number: 22STCV32554 Hearing Date: November 22, 2024 Dept: 29

Johnson v. Osborne
Case No. 22STCV32554
Motion for Leave for Second Physical Examination of Plaintiff

Tentative

The motion is granted.

Background

On October 4, 2022, Michael Johnson filed the complaint in this action against Shelby Osborne, Randolph Osborne (collectively, “Defendants”), and Does 1 through 50, asserting a cause of action for negligence arising out of an alleged motor vehicle accident on November 28, 2020.

On December 13, 2023, Defendants filed an answer.

On April 24, 2024, Defendants conducted a physical (neurosurgical) examination of Plaintiff performed by Dr. Luke Macyszyn. (Radusic Decl., ¶ 7 & Exh. E.)

On October 17, 2024, Defendants filed this motion for leave to conduct a second physical (neurological) examination of Plaintiff. Plaintiff filed an opposition on November 6, and Defendants filed a reply on November 14.

Legal Standard

“Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc., § 2032.020, subd. (a).)

In a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court. (Code Civ. Proc., § 2032.220.)

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.” (Id., § 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 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.)¿¿¿¿

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

Discussion

Defendants move for leave to conduct a neurological examination of Plaintiff, to be performed by Dr. Edwin C. Amos.

Defendants satisfy the procedural requirements set forth in the Code. (Code Civ. Proc., § 2032.310; Carpenter, supra, 141 Cal.App.4th at p. 260.) The examination is to occur on December 10, 2024 at 2:00 p.m. at 2021 Santa Monica Blvd., Suite 525E, Santa Monica, California 90404. It is a neurological examination, and Dr. Amos will test mental status, cranial nerves, motor skills, gait and balance, and reflexes. Dr. Amos will also take a history. The specific tests and procedures are the following: speaking with the patient; visuospatial tasks; simple calculations; writing; having the patient perform various maneuvers; inspecting each patient’s muscle group; having the patient ambulate and perform turns; Romberg test; having the patient perform the tandem gait; assessing ability of the patient to stand on either leg; and tapping over the patient’s tendons.

Defendants have also shown good cause. As Plaintiff confirmed in written discovery, Plaintiff has experienced complex neurological injuries, including the following: loss of consciousness; intermittent tinnitus with weakness and numbness of the extremities leading to trouble and difficulty sleeping; and migraines and headaches. (Radusic Decl., ¶ 3 & Exh. A.) Plaintiff complained of headaches with nausea, difficulty concentrating and focusing, short term memory problems, and recalling names. (Id., ¶ 5 & Exh. C.) Plaintiff was diagnosed with post concussive syndrome with post traumatic headaches, including short term memory loss and difficulty focusing and concentrating. (Ibid.) Dr. Amos will examine Plaintiff to assess the existence, nature, and causation of the damages Plaintiff claims. (Amos Decl., ¶ 3.)

Notwithstanding Plaintiff’s argument to the contrary, the Court does not find these tests to be duplicative of the examination previously conducted by Dr. Macyszyn. Dr. Amos will test mental status, cranial nerves, motor skills, gait and balance, and reflexes. Dr. Macyszyn tested Plaintiff’s movements and the range of motion of Plaintiff’s cervical and lumbar spine. (Yazdanpanah, Decl., ¶ 3 & Exh. 2.) Dr. Macyszyn also tested Plaintiff’s ability to walk on toes and heels, squat, bend over to touch the toes, rotate the back and head to the left and right; Plaintiff’s motor strength, sensation, and deep tendon reflexes in upper and lower extremities; and Plaintiff’s upper and lower extremity symptoms and function in the cervical and lumbar spine. (Ibid.) There may be some overlap, but there are also meaningful differences, and the two examinations, conducted by doctors with different specialties assessing different injuries, are not unduly duplicative, repetitive, or burdensome. Good cause has been shown.

Conclusion

The Court GRANTS Defendants’ motion for leave to conduct a second physical examination of Plaintiff.

The Court ORDERS Plaintiff to appear for examination and be examined by Dr. Edwin C. Amos, a neurologist, on December 10, 2024 at 2:00 p.m. at 2021 Santa Monica Blvd., Suite 525E, Santa Monica, California 90404. Dr. Amos may test mental status, cranial nerves, motor skills, gait and balance, and reflexes. Dr. Amos may also take a history. The specific tests and procedures permitted are the following: speaking with the patient; visuospatial tasks; simple calculations; writing; having the patient perform various maneuvers; inspecting each patient’s muscle group; having the patient ambulate and perform turns; Romberg test; having the patient perform the tandem gait; assessing ability of the patient to stand on either leg; and tapping over the patient’s tendons.

Moving party to give notice.