Case Number: BC662566 Hearing Date: May 30, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR LEAVE TO CONDUCT PHYSICAL EXAMINATION OF PLAINTIFF MORE THAN 75 MILES FROM PLAINTIFF’S RESIDENCE

On May 23, 2017, Plaintiff Lonnie Lee Johnson, Jr. (“Plaintiff”) filed this action against Defendants Jorge Angel Peralta and Antonia Arroyo (collectively, “Defendants”) for negligence, negligence per se, and statutory liability relating to a May 5, 2016 automobile collision.

Defendants seek leave to conduct Plaintiff’s physical examination more than 75 miles from Plaintiff’s residence. 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).) A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code of Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code of Civ. Proc., § 2032.220, subd. (d)).

If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to the examination may be entered only where: (1) the court determines that there is good cause for the travel involved, and (2) the order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination. (Code of Civ. Proc., § 2032.320, subd. (e).)

Plaintiff lives in Blythe, California, approximately 223 miles from Los Angeles on the Arizona border. (Declaration of James T. Shott, ¶ 2.) Defendants argue there is good cause to conduct Plaintiff’s IME more than 75 miles from her residence because defense counsel could not locate a qualified orthopedic surgeon in the Blythe area who was willing to conduct a physical examination of Plaintiff near Blythe and who would also be able to appear in Los Angeles to testify at the time of trial. Counsel also states it would be prohibitively expensive to send a local orthopedic surgeon to Blythe to conduct the examination. (Shott Decl., ¶ 2.)

Defendants seek to have Plaintiff examined by Scott K. Forman M.D., an orthopedic surgeon who is located in Newport Beach, California. (Shott Decl., ¶ 3.) Defense counsel met and conferred with Plaintiff’s counsel, but Plaintiff would not agree to conduct the examination in Newport Beach. (Shott Decl., ¶ 4.) Defendant served a Demand for IME with Dr. Forman and Plaintiff served a written objection stating Plaintiff would be unduly inconvenienced. (Shott Decl., ¶¶ 5, 6.)

Plaintiff filed no opposition to this Motion. Defendants are entitled to their choice of physician to conduct Plaintiff’s physical examination, but Newport Beach is approximately 220-245 miles from Plaintiff’s residence. Therefore, before Defendants’ Motion is granted, defense counsel is ordered to appear at the hearing on this Motion to inform the court which orthopedic surgeons, located closer to Plaintiff’s residence, were considered and were deemed unqualified or were unwilling to travel to Los Angeles for trial.

Moving party to give notice.