Judge: Thomas S. Mcconville, Case: 2021-01233083, Date: 2023-06-12 Tentative Ruling
Defendants Caegis Solutions, LLC and
Alejandro Lozano-Peralta’s (collectively, defendants) motion to compel
plaintiff Larry J. Kates (plaintiff) to submit to independent medical
examinations in California is GRANTED. (See Code Civ. Proc., §§ 2032.310,
2032.320, subds. (a), (e).)
Plaintiff is ORDERED to travel to
California and attend the following physical examinations:
- A
physical examination with orthopedic surgeon Michael Weinstein, M.D.,
who specializes in spinal injuries, on 6/20/23 at 8:30 a.m. at 360 San
Miguel, Suite 701, Newport Beach, California 92660. This
examination will focus on plaintiff’s alleged spinal injuries and
symptoms. Claims of continuing, ongoing or permanent problems, if any,
will be within the scope of the examination, including claims for future
care and/or surgery. The examination will be consistent with the
orthopedic practices in Southern California and consultations in
connection with such practices. It will consist of procedures and tests
routinely used by physicians examining patients for conditions such as
those alleged by plaintiff in this action, including the taking of an
oral history and orthopedist tests pertaining to the plaintiff’s claimed
injuries in the expert’s respective specialty. This includes range of
motion testing and palpation. The exam may include the taking of X-rays,
CT Scans and/or MRI Studies as deemed necessary by the examining
physician. If any such studies were performed by previous doctors and
plaintiff does not wish said studies to be repeated, plaintiff shall authorize
access to and make arrangements for said studies to be delivered to Dr.
Weinstein before the examination. The examination will not include any
invasive or painful tests or procedures.
- A
physical examination with orthopedic surgeon Scott Forman, M.D., who
specializes in injuries to the extremities, on 6/20/23 at 1:30 p.m. at
360 San Miguel, Suite 701, Newport Beach, California 92660. This
examination will focus on plaintiff’s alleged injuries and symptoms to
his extremities, including his left knee. Claims of continuing, ongoing or
permanent problems, if any, will be within the scope of the examination,
including claims for future care and/or surgery. The examination will be
consistent with the orthopedic practices in Southern California and
consultations in connection with such practices. It will consist of
procedures and tests routinely used by physicians examining patients for
conditions such as those alleged by plaintiff in this action, including
the taking of an oral history and orthopedist tests pertaining to the
plaintiff’s claimed injuries in the expert’s respective specialty. This
includes range of motion testing and palpation. The exam may include the
taking of X-rays, CT Scans and/or MRI Studies as deemed necessary by the
examining physician. If any such studies were performed by previous
doctors and plaintiff does not wish said studies to be repeated,
plaintiff shall authorize access to and make arrangements for said
studies to be delivered to Dr. Forman before the examination. The
examination will not include any invasive or painful tests or
procedures.
- A
physical examination with neurologist Paul E. Kaloostian, M.D., on
6/21/23 at 1:00 p.m. at 960 East Green Street, Suite 320, Pasadena,
California 91106. The examination will concern plaintiff’s alleged
neurological injuries and symptoms. Claims of continuing, ongoing or
permanent problems, if any, will be within the scope of the examination,
including claims for future care and/or surgery. The examination will be
consistent with the practices of neurology in Southern California and
consultations in connection with such practices. It will consist of
procedures and tests routinely used by physicians examining patients for
conditions such as those alleged by plaintiff in this action, including
the taking of an oral history. The examination may include the taking of
X-rays, CT Scans and/or MRI Studies as deemed necessary by the examining
physician. If any such studies were performed by previous doctors and
plaintiff does not wish said studies to be repeated, plaintiff shall
authorize access to and make arrangements for said studies to be
delivered to Dr. Kaloostian before the examination. The examination will
not include any invasive or painful tests or procedures.
Defendants are ORDERED to advance all reasonable
expenses and costs for plaintiff to travel to and from California to attend
these examinations, including, inter alia, for lodging, direct flights to and
from California, and other transportation costs. (See Code Civ. Proc., §
2032.320, subd. (e)(2).)
There is no dispute that plaintiff’s
condition is “in controversy” in the action; this is a personal injury case
arising out of an automobile accident, in which plaintiff is claiming
significant physical injuries. (See Feng Decl. ¶¶ 2-3, Exs. A, G.) There is
also no dispute as to the number of proposed examinations. Plaintiff has
already agreed to undergo the three exams requested by defendants; the number
of exams is not at issue. (See Feng Decl. ¶ 4, Ex. B [2/7/23 email from
Taylor Traut to Irving Feng]; see also Opp. at pp. 4:15-16.) Plaintiff also
does not take issue with the proposed scope of the examinations. (See Opp.,
in passim.)
The only dispute here is whether plaintiff,
who relocated to and now resides in Oakland, Iowa as of August 2022, should
be compelled to return to California for the subject exams (with all
reasonable travel expenses paid for by defendants, which defendants have
already agreed to advance and pay). (See Feng Decl. ¶¶ 4, 6, Ex. B.)
Defendants have shown good cause to compel
plaintiff to travel to California for the subject exams. This is a personal
injury action arising out of an automobile collision, in which plaintiff has
treated with at least 20 California healthcare providers for the injuries he
claims in this case, and for which he seeks medical specials totaling more
than $338,538.23. (See Feng Decl. ¶¶ 2-3, Exs. A, G; see also id. at
Ex. C [Pltf. Depo. 30:1-17].) Given that plaintiff has received the majority,
if not all, of his medical treatment for the alleged injuries in California
from California healthcare providers, plaintiff’s treating providers/experts
will likely be available to testify in-person at the time of trial.
Defendants is thus entitled to the same opportunity, i.e., to secure local
experts who will also be available to testify in-person at trial, without
having to incur prohibitively expensive costs for that same benefit. (See Rycz
v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, 843
[generally discussing the benefits/flexibility of local witnesses and
in-person trial testimony]; see also Supp. Feng Decl. ¶ 2.) Further,
defendants have “been unable to locate qualified medical experts who are able
to examine plaintiff within 75 miles of his residence in Iowa, including
Omaha, Nebraska, as plaintiff propose[s], who are also able to appear and
testify at trial” (Supp. Feng Decl. ¶ 3), and defendants will not be forced
to retain an expert(s) who they may not be able to call.
Defendants shall give notice of all of the
above within two court days of the date of this hearing.
