Judge: William A. Crowfoot, Case: 22AHCV01287, Date: 2023-09-21 Tentative Ruling

Case Number: 22AHCV01287    Hearing Date: September 21, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

          On December 12, 2022, plaintiff Catherine Garcia (“Plaintiff”) filed this action against defendant Kee Zhang (“Defendant”) arising from a motor vehicle collision that occurred on February 25, 2022.  On August 25, 2023, Defendant filed this motion seeking leave of court to conduct a second physical examination and a mental examination.  On September 8, 2023, Plaintiff filed an opposition.  On September 14, 2023, Defendant filed a reply brief.

          Physical Examination by Dr. Paul Kaloostian

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 of Civ. Proc., § 2032.220, 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.)  “The requirement of a court order following a showing of good cause is doubtless designed to protect an examinee’s privacy interest by preventing an examination from becoming an annoying fishing expedition.”  (Ibid.)

Defendant argues that an examination by Dr. Kaloostian is necessary because on June 20, 2023, Plaintiff testified at her deposition that she has undergone an epidural injection in her lower back and has been recommended for low back surgery.  Although Plaintiff underwent a previous medical examination with a hand surgeon, Dr. Nicholas Rose, Defendant argues that another examination with Dr. Kaloostian is necessary because Dr. Rose only assessed Plaintiff’s claims regarding her right wrist and hand, whereas Dr. Kaloostian is a neurosurgeon and would examine Plaintiff’s lower back. 

In opposition, Plaintiff argues that Dr. Rose already examined her lower back even though his medical report, attached as Exhibit B to her opposition brief, does not show any examination of her lower back occurred. Plaintiff argues that she disclosed in her discovery responses that she sustained lower back pain from the motor vehicle collision; however, she did not disclose until her deposition that she was a candidate for low back surgery, which is more severe than a report of lower back pain.  (Motion, Exs. A-B.) Thus, the fact that Dr. Rose could have examined her back (and has examined the lower backs of other patients in other cases) is irrelevant.  Furthermore, Dr. Kaloostian’s curriculum vitae shows that he is a neurosurgeon with a specialty in spine surgery. (Motion, Ex. F.) In contrast, Dr. Rose is an orthopedic surgeon but specializes in hand surgery.

Nevertheless, Plaintiff raises an issue which Defendant fails to address: the scope of Dr. Kaloostian’s examination appears to exceed his specialty because it includes a “mental status exam.”  

Accordingly, Defendant’s motion for leave to conduct a second physical examination by Dr. Kaloostian is GRANTED in accordance with the demand for defense medical examination attached as Exhibit G to Defendant’s motion; the Court only strikes the reference to a “mental status exam” in the section of the demand which describes the scope of examination.

Mental Examination with Dr. Anne C. Welty

          Defendant also requests that Plaintiff submit to a mental examination with Dr. Welty because Plaintiff claims psychological damages.  This part of the motion is DENIED because in opposition, Plaintiff states that she will waive her claims for psychological distress beyond the customary pain and suffering.  Therefore, a mental status examination is not warranted because Defendant has not shown “exceptional circumstances” requiring a mental examination.  (Code Civ. Proc., § 2032.320.) 

          Sanctions

          Plaintiff’s request for sanctions is DENIED.

Moving party to give notice.

Dated this 21st day of September 2023

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.