34-2015-00174376

Marcella Crisan vs. State of California

Nature of Proceeding: Motion to Enforce the Court’s Order

Filed By: Garey, Meredith P.

Defendants Department of State Hospitals, Mark Grabau and Heather

Riis’ (collectively “Defendants”) motion to enforce court order and compel Plaintiff Marcella Crisan to attend independent psychiatric examination and for sanctions and fees is rule upon as follows.

On 6/6/2018, the Court signed the parties’ stipulation and order for independent examinations of Plaintiff. The parties agreed that Plaintiff would submit to two psychiatric exams and one physical exam. At issue here is the psychiatric exam by Dr. Jason Roof. Plaintiff agreed to appear on July 26, 2018 for the exam. The parties further stipulated that “[b]ecause the doctors are setting aside time for the examination

and testing, they will lose valuable time that can be scheduled for others in the event Plaintiff does not appear. If Plaintiff does not appear for the examination, she agrees to compensate the doctor in question for the full cost of the examination date.”

For medical reasons, Plaintiff did not appear at the July 26, 2018 exam. Defendants now move to compel the examination, and for Plaintiff to pay $4000 for the canceled exam and $2,040 in sanctions.

Plaintiff has agreed to appear at the exam which is rescheduled for September 13, 2018. To the extent Defendants desire an order compelling Plaintiff to appear at the exam, the motion to compel appearance at the September 13, 2018 exam is GRANTED.

The only issues now remaining are the $4,000 in fees and $2,040 in sanctions.

The pertinent facts are recited below.

On July 12, 2018, Plaintiff notified her counsel that she was in the hospital and required surgery and could not travel until September 2018. (Ulmer Decl., ¶ 4.) That same day, Plaintiff’s counsel, Derek Ulmer (“Ulmer”), sent an email from his phone to Defense counsel, Meredith Garey (“Garey”), informing her that Plaintiff was in the hospital and scheduled for surgery. (Ulmer Decl., ¶ 5.) At the time, he was in trial in Stockton and did not have access to his calendar, therefore, he only mentioned Plaintiff’s upcoming deposition set for August 2, 2018, and overlooked her upcoming IME’s on July 16, 2018, and July 26, 2018. (Id.) On July 12, 2018, Garey called Ulmer to determine whether the independent medical examinations were also affected. (Garey Decl. ¶ 6.) Ulmer did not know and stated that the September date was an “estimate.” (Id.)

On July 13th, Garey sent an email stating “I imagine that we will also need to move the IME examinations scheduled with Dr. Younger July 16 (Monday) and Dr. Roof on July

26. Please confirm these will need to be moved as soon as possible so I can let the providers know.” (Ulmer Decl., ¶ 6.) Ulmer’s associate responded “she expects to find out her limitations today. We should have an answer by Monday at the latest.” (Ulmer Decl., ¶ 7.) Garey then sent two follow-up emails requesting that Plaintiff confirm whether or not she would attend the July 16th IME. (Ulmer Decl., ¶¶ 8-9.) She also stated that to move the IMEs, she “would need some sort of proof of her medical condition. . . [and that] we need to deal with these IME’s IMMEDIATELY.” (Ulmer Decl., ¶ 9 [emphasis in original].) The same morning, Ulmer and Garey spoke regarding rescheduling the IMEs and that Defendants would need proof of her medical condition. (Ulmer Decl., ¶ 10.) Ulmer told her that he would forward a note as soon as possible. (Ulmer Decl., ¶ 10.) From the conversation and the previous emails, Plaintiff was under the impression that both IMEs had been rescheduled. (Ulmer Decl., ¶ 10.)

On July 13th, Ulmer informed Garey that Plaintiff would not attend the Monday, July 16,

2018 orthopedic examination. (Garey Decl., ¶ 7.) Plaintiff’s counsel emailed a note from Plaintiff’s doctor, Dr. Walter Kusumoto. (Garey Decl., ¶ 7.) The note stated:

Marcella Crisan is currently in my care for arrhythmia. . . .She was last seen in my office on 04/10/2018, Ms. Crisan underwent a Right Ventricular Lead Extraction with implantation of new Right Ventricular Lead on 07/12/2018 at Enloe Hospital. She is unable to appear in court on 07/16/2018. Ms. Crisan is scheduled to be seen next in my office on 07/20/2018 for a wound care appointment.

(Garey Decl., Ex. E.) Defendants agreed to reschedule Plaintiff’s orthopedic examination with Dr. Edward Younger. (Garey Decl., ¶ 8.) The July 13th note did not purport to excuse Plaintiff from the July 26th psychiatric exam and, as such, Defendants did not reschedule the exam. (Garey Decl., ¶ 8.)

On July 19th, Defendants deposed Dr. Kusumoto. Dr. Kusumoto testified that it would take a couple of weeks after the surgery for Plaintiff to be able to attend a court proceeding. (Garey Decl., Ex. K, 48:1-5.) The same day, Garey forwarded a stipulation to reschedule the July 16th IME, it made no mention of the July 26th IME.

At a July 23rd deposition, Garey indicated that she had not received a note excusing Plaintiff from the July 26th IME. (Ulmer Decl., ¶ 13.) Ulmer responded that he had already turned in a note and that Dr. Kusumoto had testified days before that Plaintiff would need two weeks at least before attending a court proceeding. (Ulmer Decl., ¶ 13.) Garey explained that she would need a note of some kind. (Ulmer Decl., ¶ 13.) Prior to this time, Ulmer was under the impression that the July 26th IME had been taken off calendar when they originally agreed to do so on July 13, 2018 because it was the first time since July 13th that the July 26th IME was mentioned. (Ulmer Decl., ¶ 13.)

On July 25th, Ulmer emailed a note from Plaintiff’s doctor, Dr. James Carter, which stated “Marcella Crisan is unable to travel due to issues until 8/19/2018.” (Garey Decl., Ex. F.) Garey responded that the note was insufficient to excuse Plaintiff from appearing at the IME or to “reschedule the examination without a significant charge.” (Garey Decl., Ex. G.) Garey also objected because Dr. Carter did not treat Plaintiff for her recent defibrillator repair. (Garey Decl., Ex. G.) Between 4:30 p.m. and 5:00 p.m., Plaintiff sent Garey two additional medical notes from Drs. Kusumoto and Carter. Dr. Kusumoto’s note explained that Plaintiff was experiencing pain, but made no mention her ability to appear for the IME. (Garey Decl., Ex. H.) Dr. Carter’s note stated that Plaintiff was limited to travel (no more the 10 miles) until 8/19/2018, and that she “is at high risk of anxiety and is total bed rest due to the surgery of having a new defibrillator put in.” (Garey Decl., Ex. H.) Defendants objected to the notes as deficient and that they did not explain whether Plaintiff would appear at the IME. (Garey Decl., Ex. I.) Ulmer responded that Plaintiff would not appear at the July 26th IME.

On July 26th, Plaintiff was in the emergency room at Enloe Medical Center from around 2:00 p.m. to 6:00 p.m. due to heart palpitations and chest pain. (Ulmer Decl., ¶ 21.)

Given the above record, it appears that the disagreement on who is at fault and whether Plaintiff should pay the doctor’s fees is based on miscommunication and misunderstandings between both parties’ counsels, and delay on Defendants’ part for waiting until two days before the IME to inform Plaintiff that the prior doctors’ notes and Dr. Kusumoto’s testimony were insufficient and that they still needed a note regarding the July 26th IME. The Court, therefore, will split the $4000 cancellation fee between both parties.

Accordingly, Defendants’ motion for the cancellation fee is GRANTED in the amount of $2000. Defendants’ request for monetary sanctions is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.