Judge: Steven A. Ellis, Case: 23STCV00689, Date: 2024-08-23 Tentative Ruling

Case Number: 23STCV00689    Hearing Date: August 23, 2024    Dept: 29

Hunter v. Abbou
23STCV00689
Motion for Leave to Conduct Physical (Neurological) Examination of Plaintiff
Motion for Leave to Conduct Mental (Neuropsychological) Examination of Plaintiff

Tentative

The motions are granted.

Background

On January 12, 2023, Alex Hunter (“Plaintiff”) filed a complaint against Gregory Abbou (“Abbou”), Irina Godestsalyuk (“Defendant”), and Does 1 through 50 for motor vehicle negligence and general negligence arising out of an accident occurring on June 10, 2022, on the I-10 freeway near the Crenshaw Boulevard exit.

On February 6, 2023, Abbou filed an answer to the complaint.  Abbou also filed a cross-complaint against Defendant and Roes 1 through 20.

On February 14, 2023, Defendant filed an answer to the complaint.  The next day, Defendant filed a cross-complaint against Abbou and Roes 1 through 10.

On July 12 and 15, 2024, Defendant filed these two motions for orders for Defendant to conduct a mental (neuropsychological) and a physical (neurological) examination of Plaintiff.

No opposition has been filed.

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).)

Motion to Compel Initial Physical Examination

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.)

As to the first physical examination, 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 ….

Within 20 days of service of a demand for a physical examination, the plaintiff to whom the demand is directed must respond in writing and state that the plaintiff “will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination.”  (Code Civ. Proc., § 2032.230, subd. (a).)  Failure to serve a timely response waives any objection to the demand.  (Code Civ. Proc., § 2032.240, subd. (a).)

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).)  The motion “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., § 2032.250, subd. (a).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc., § 2032.250, subd. (b).)

Motion to Compel Subsequent Physical Examination or Any Mental Examination

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 a motion for a mental examination of a plaintiff “only for good cause shown.” (Id., § 2032.320, subd. (a).) The examination will be limited to whatever condition is “in controversy” in the action.¿ (Ibid.) 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.)  By alleging a causal link between the emotional distress and the defendant's conduct, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.”  (Ibid.) 

A mental examination is appropriate only if the plaintiff alleges continuing emotional distress. (Doyle v. Super. Ct. ¿(1996) 50 Cal.App.4th¿1878, 1886-1887.) “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.”  (Vinson,¿supra, 43 Cal.3d at p. 840.) 

“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.)¿¿¿¿ 

A court shall not (except under “exceptional circumstances”) order a mental examination if the plaintiff stipulates (1) “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed” and (2) “that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” (Code Civ. Proc., § 2032.320, subds. (b) & (c).)

Discussion

Motion to Compel Physical Examination

As a threshold matter, Defendant’s moving papers do not make it clear whether the neurological examination at issue is the first physical examination requested or a subsequent physical examination.  As Defendant is seeking an order before the date noticed in the demand, and as Defendant this motion under Code of Civil Procedure sections 2032.310 and 2032.320, it appears to the Court that this must be a request for a subsequent physical examination, which requires advance leave of the court.

Defendant has satisfied the procedural and substantive requirements for such a motion.

Defendant 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.” (Code Civ. Proc., § 2032.310, subd. (b).) Defendant attaches its demand for an examination on August 27, 2024, at 1:30 p.m. at 2021 Santa Monica Blvd, Suite 525E, Santa Monica, CA 90404 with Edwin Amos, M.D., a specialist in neurology. (Exh. C.) The examination shall include “the taking of a complete medical history (past and current), an evaluation of the Plaintiff’s musculoskeletal/neurological health, as well as plaintiff’s response in reaction to standard neurological tests, including but not limited to, posture/deformity testing, gait testing, heel walking, toe walking, measurements of upper and lower extremities, palpation of the spine and extremities, motor and reflex tests, sensory tests, range of motion testing of the spine and extremities on all planes, head compression, Straight Leg Raise and basic mental status (not neuropsychological testing). The examination will not include any diagnostic test or procedure that is painful, protracted or intrusive, but may include x-rays as deemed necessary by the examining physician.” (Id., 2:3-11.)

The meet and confer requirement is satisfied.  (Cadet Decl., ¶¶ 4 & 5; see also Exh. B.)

Substantively, Defendant has shown that good cause exists for the examination, as during Plaintiff’s deposition, Plaintiff admitted to having seizures, anger, and memory problems arise (Exh. A, 79:15-18, 83:12-25, 92:19-25, 93:1-23.) Plaintiff also stated he saw a neurologist for his brain function. (Id., 71:10.)  The Court finds that this testimony of Plaintiff’s establishes good cause for leave to be granted to Defendant to conduct the requested physical examination by a neurologist.

Accordingly, Defendant’s motion to compel the neurological independent medical examination by Edwin Amos, M.D. is GRANTED.

Motion to Compel Mental Medical Examination

Defendant seeks leave of court to conduct a neuropsychological examination of Plaintiff.

“A motion for examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination.” (Code Civ. Proc. § 2032.310(b).)

Defendant attaches its demand for an examination would be with neuropsychologist, Dylan Harwood, Ph.D., on August 30, 2024 at 10 a.m. at 11835 W. Olympic Boulevard, Suite 1270E in Los Angeles. (Exh. C.) The examination would involve first a history taking and observation of Plaintiff for his current symptoms, followed by Dr. Harwood conducting some or all of the following tests “Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visualspatial Memory Test – Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; the Victoria Symptom Validity Test; Shipley-2; Pain Disability Index, and the NAB Shape Learning subtest.” (Exh. C, 2:6-7, 3:1-8.)

The meet and confer requirement is satisfied.  (Cadet Decl., ¶¶ 4 & 5; see also Exh. B.)

Defendant has shown good cause.  Defendant attaches the same portions of Plaintiff’s deposition in which Plaintiff testified that he has symptoms of memory loss and anger issues which could be from the alleged incident. (See Exh. A, 79:15-18, 83:12-25, 92:19-25, 93:1-23.)

Therefore, the Court GRANTS Defendant’s motion to conduct a neuropsychological examination.

Conclusion 

The Court GRANTS Defendant’s Irina Godestsalyuk motion for leave to conduct a neurological examination of Plaintiff Alex Hunter.

The Court GRANTS Defendant’s Irina Godestsalyuk motion for leave to conduct a neuropsychological examination of Plaintiff Alex Hunter.

Plaintiff Alex Hunter is ordered to appear for a neurological medical examination with Edwin Amos, M.D.  at 1:30 p.m. on August 27, 2024, at 2021 Santa Monica Blvd, Suite 525E, Santa Monica, CA 90404. The examination shall include, but not be limited to, the taking of a complete medical history (past and current), an evaluation of the Plaintiff’s musculoskeletal/neurological health, as well as plaintiff’s response in reaction to standard neurological tests, including but not limited to, posture/deformity testing, gait testing, heel walking, toe walking, measurements of upper and lower extremities, palpation of the spine and extremities, motor and reflex tests, sensory tests, range of motion testing of the spine and extremities on all planes, head compression, Straight Leg Raise and basic mental status (not neuropsychological testing). The examination will not include any diagnostic test or procedure that is painful, protracted or intrusive, but may include x-rays as deemed necessary by the examining physician.

The provisions of Code of Civil Procedure section 2032.510 will apply to the physical examination.

Plaintiff Alex Hunter is ordered to appear for a neuropsychological medical examination with Dylan Harwood, Ph.D. at 10 a.m. on August 30, 2024 at 11835 W. Olympic Boulevard, Suite 1270E in Los Angeles. The examination is not to involve any invasive, dangerous, or painful physical procedures other than the subjective pain or distress ordinarily associated with the recall of psychologically and/or emotionally upsetting events and situations in one’s life. The IME will consist of two parts. The first part of the IME will involve a history taking and observation of Plaintiff for the purpose of gathering information in specific areas limited to Plaintiff’s current symptoms, Plaintiff’s history of the alleged injuries, including subjective report of the events leading to the psychological/neuropsychological damage, Plaintiff’s treatments and the effect of those treatments on symptoms, as well as past psychological/psychiatric and medical illnesses and difficulties, and educational and occupational history. The second part of the IME will consist of the administration of psychological and neuropsychological tests, limited to the following: Wechsler Adult Intelligence Scale – III or IV; California Verbal Learning Test – II; Dot Counting Test; MMSE; Brief Visualspatial Memory Test – Revised; Trailmaking; Finger Tapping; Finger Agnosia; B Test; Wide Range Achievement Test – IV; Word Memory Test; Rey Auditory Verbal Learning Test; Wechsler Memory Scale – III or IV; Portland Digit Memory Test; Rey-Osterrieth Complex Figure; Test of Memory Malingering (TOMM); Minnesota Multiphasic Personality Inventory – 3; Stroop Test; Warrington Recognition Memory Test; FAS; Rey 15-item; Morel Emotional Numbing Test; Rey Word Recognition Test; Wisconsin Card Sorting Test; Coin in Hand Test; the Victoria Symptom Validity Test; Shipley-2; Pain Disability Index, and the NAB Shape Learning subtest. Dr. Harwood will make available any audio recording and all copies of the psychological test data sheets used to document Plaintiff’s test performance to Plaintiff’s retained licensed psychologist expert.

The provisions of Code of Civil Procedure section 2032.530 will apply to the mental examination.  Plaintiff will be permitted to record the entire examination by audio technology.

Moving party is ordered to give notice.