Judge: William A. Crowfoot, Case: 20STCV04848, Date: 2022-08-02 Tentative Ruling

Case Number: 20STCV04848    Hearing Date: August 2, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On February 6, 2020, plaintiff Jeffrey A. Mundt (“Plaintiff”) filed this action against defendants Marvin A. Balcaceres and C & B Towing Inc. (collectively, “Defendants”) arising from a motor vehicle accident that occurred on February 22, 2018.  On May 2, 2022, Defendants filed this motion to compel a second independent medical examination of Plaintiff by an orthopedic spine surgery specialist

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee.  (Code Civ. Proc., § 2032.220, subd. (a).)  Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court.  (Code Civ. Proc., § 2032.310, subd. (a).)  A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2032.310, subd. (b).)  The court shall grant a motion for made under section 2032.310 only for good cause shown.  (Code Civ. Proc., § 2032.320, subd. (a).) 

The Court notes that Defendants’ motion is devoid of the details required by CCP section 2032.310, including the name of the examiner, the time, place, manner, condition, and scope of the proposed examination.  However, the Court also notes that Defendants attempt to remedy this error by identifying William Dillin, MD (“Dr. Dillin”) as the examiner and proposing that the examination take place on August 30, 2022 at 9 a.m. at 6080 Center Drive 6th Floor, #652 in Los Angeles CA 90045.  As the mandatory information has been provided, the Court proceeds to evaluate whether good cause exists for a second medical examination. 

Any motion seeking a second DME must be based upon an explicit showing of “good cause.” (Code. Civ. Proc., § 2032.320, subd. (a).) This requires a showing of both relevancy to the subject matter and specific facts justifying discovery.  (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) The purpose is to protect an examinee’s privacy by preventing annoying “fishing expeditions,”—a party cannot compel another examination “solely on the basis of speculation that something of interest may surface.” (Id. at p. 840.) 

Defendants argue good cause exists for a second examination by an orthopedist because the first examination, which took place on December 10, 2020, was performed by Scott Foreman, M.D. (“Dr. Foreman”), who is board certified in orthopedic surgery specializing in shoulders, knees, and ankles.  Defendant claims that Plaintiff has since received recommendations for cervical spine surgery and disc replacement from his treating physician, Keith S. Feder, M.D. (“Dr. Feder”).  Dr. Feder testified at his deposition on April 12, 2022, that Plaintiff will likely need spine surgery and disc replacement.  Defendants argue that at the time of Dr. Foreman’s examination, Plaintiff’s complaints involved soft tissue and there were no findings for a surgical recommendation.  Defendants also argue that the shoulder and the spine involve different body parts and require different specialists. 

In opposition, Plaintiff argues that Defendants have been aware of his neck pains and problems since April 2020, and that Dr. Foreman examined Plaintiff’s neck by palpating and conducting a range of motion test.  Plaintiff states that Dr. Foreman opined that Plaintiff was overstating his injuries and argues that whether Plaintiff’s treating physician, Dr. Feder, has reached a different conclusion does not justify a second examination by an expert in the same field of medicine. 

In reply, Defendant adds that Plaintiff was examined by Sanjay Khurana, MD, FACS (“Dr. Khurana”) at Microscopic and Reconstructive Spine Surgery on May 5, 2022.  Dr. Khurana recommended that Plaintiff undergo cervical facet blocks with rhizotomy and a possible 2-level arthroplasty at C5-6 and C6-7.  Defendants reiterate that a spine surgeon must examine Plaintiff’s neck injuries in light of the recent recommendations for cervical surgery. 

In light of the foregoing, the Court finds Defendants have shown good cause for a second examination by Dr. William Dillin.  Defendants’ motion is GRANTED.  The physical and orthopedic examination will take place on August 30, 2022 at 9:00 a.m.at 6080 Center Drive, 6th Floor, #652, Los Angeles, CA 90045.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.