Judge: William A. Crowfoot, Case: 20STCV34715, Date: 2022-09-14 Tentative Ruling

Case Number: 20STCV34715    Hearing Date: September 14, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On September 11, 2020, Plaintiff Holly McKay (“Plaintiff”) filed this action against Defendant Samuel Nicholas Wechsler (“Defendant”) arising from a September 15, 2018, motor vehicle and electric scooter accident.  Trial was previously scheduled for September 6, 2022.  On July 14, 2022, pursuant to Defendant’s ex parte application, the Court continued the trial date to May 16, 2023 but did not continue the discovery or motion cutoff deadlines.  On August 17, 2022, at a hearing on Plaintiff’s motion for reconsideration, the Court scheduled trial for February 8, 2023, pursuant to oral stipulation.  On August 19, 2022, Defendant filed this motion to reopen discovery for the limited purpose of conducting independent medical examinations (“IME”) of Plaintiff and completing expert depositions.  Defendant also requests an order compelling Plaintiff’s attendance at two IMEs. 

II.          LEGAL STANDARD

A.           Reopen Discovery

Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.  (Code Civ. Proc., § 2024.020, subd. (a).)  On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.  This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.  (Code Civ. Proc., § 2024.050, subd. (a).) 

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”  (Code Civ. Proc., § 2024.050, subd. (b).)

B.           Compel IME

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).)  If any party desires to obtain discovery by additional physical examinations, the party shall obtain leave of 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 the motion only for good cause shown.  (Code Civ. Proc., § 2032.310, subd. (a).)

“Nowhere does the Legislature specifically limit the number of available examinations, either mental or physical.  The authoritative discovery commentators agree that multiple defense examinations are permitted on the necessary showing of good cause.”  (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)  A showing of good cause 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. Superior Court (1987) 43 Cal.3d 833, 840.) 

III.        DISCUSSION

First, Defendant argues that good cause exists to reopen discovery because Plaintiff needs to be examined by a neurologist and an orthopedist.  Previously, at a status conference on March 11, 2022, the Court reopened discovery so that Defendant could seek IMEs of Plaintiff by a neurologist, a neuropsychologist, and an orthopedist.  At that time, trial was scheduled for September 6, 2022, but Defendant scheduled the orthopedic exam on August 25, 2022, with Steven Nagelberg, M.D. (“Dr. Nagelberg”) and the neurological exam with Edwin Amos, M.D. (“Dr. Amos”) on October 24, 2022.  Plaintiff claims Defendant deliberately scheduled these exams to take place after the trial date in order to force a trial continuance and that Defendant has refused to depose Plaintiff’s experts.  However, Defendant argues that Plaintiff has refused to appear for his examination by Dr. Amos on the grounds that Dr. Amos was not designated as an expert.  Defendant states that Plaintiff’s objections are meritless because another neurologist had been previously designated but that Dr. Amos had replaced him because the other neurologist was unavailable to perform Plaintiff’s IME.  Defendant also points out that Plaintiff has refused to provide all of her medical records and that he cannot depose her expert witnesses until the records have been received and the IMEs have taken place.  Defendant contends Plaintiff still needs to produce loss of earnings documents, documents regarding a subsequent motor vehicle accident, and medical records for visit to Plaintiff’s neurologist on February 15, 2021, and March 15, 2021, among others. 

As for the IMEs, Plaintiff argues that no orthopedic examination is necessary because she has withdrawn those claims.  (Opp., Burtchaell Decl., Ex. A.)  Therefore, the Court will not order an IME by Dr. Nagelberg.  Plaintiff also argues she should not be examined by Dr. Amos because Dr. Amos was not “properly designated” and has never been offered for deposition.  Defendant argues that Plaintiff has been aware of Dr. Amos since February 2022 and that there have been multiple attempts to meet and confer to schedule dates for Plaintiff’s examination.  In Defendant’s first expert witness designation on January 20, 2022, a neurologist had already been designated, but was later replaced by Dr. Amos because the neurologist was unavailable to conduct Plaintiff’s IME.  As Plaintiff has not withdrawn her claims for neurological injuries and has herself designated a neurologist, neuropsychologists, neurosurgeons, and forensic neuropsychiatrists, the Court finds good cause to order an examination by Dr. Amos. 

 The Court finds that reopening discovery for the limited purpose of conducting the IME by Dr. Amos and allowing both sides to conduct expert depositions would not be prejudicial to Plaintiff, but that refusing to reopen discovery would heavily prejudice Defendant.  Also, Defendant has made a satisfactory showing that he has been acting diligently in attempting to schedule Plaintiff’s examinations and depose Plaintiff’s experts but has been unable to move forward due to Plaintiff’s objection that the examination was scheduled after the trial date, even though Plaintiff had her own motions and hearings scheduled after the trial date as well.  (See Motion, Dondanville Decl., Exs. D, G; Reply, Dondanville Decl., ¶ 10.)  

IV.         CONCLUSION

In light of the foregoing, Defendant’s motion to reopen discovery is GRANTED.  Discovery is reopened for the limited purposes of conducting expert depositions and the IME of Plaintiff by Dr. Amos.  The cutoff date for discovery shall be based on the trial date of 2/8/2023. 

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.