2015-00188039-CU-PA

Tammy Jorgenson vs. Brandon Guerrero

Nature of Proceeding: Motion for Order Granting Leave to Submit to a Second Independent

Filed By: Snook, Terrence T.

Defendants Motion for Order that Plaintiff Submit to a Second Independent Medical Examination is granted.

This action arises from a vehicle collision that occurred on September 13, 2014. Plaintiff filed her Complaint on December 17, 2015. The trial is currently set for June 24, 2019.

Defendants seek an examination by an orthopedic surgeon concerning plaintiff’s claim of a disc injury that requires surgery and which she contends is a result of the subject accident. At the time of plaintiff’s deposition in October of 2016, she testified that no doctor had told her that neck surgery would be necessary. On May 30, 2018, plaintiff’s counsel told defense counsel that plaintiff’s doctor stated she may need surgery for her neck.

Plaintiff previously underwent a medical examination with Dr. Stephen Forner, M.D., a neurologist on June 23, 2017. Before the initial trial date of May 22, 2018, defendant had scheduled a deposition with plaintiff’s treating orthopedic surgeon, Dr. Tyler Smith. Plaintiff’s counsel unilaterally cancelled the deposition. Defendant’s Motion to continue the May 22 trial date was granted.

In opposition, plaintiff contends it will be costly to hire an expert or depose a second expert. She contends she will be prejudiced by having two professional witnesses testify for the defense against plaintiff’s treating doctors. Plaintiff has attached Dr. Forner’s report stating that any cervical sprain from the accident would have returned to baseline within 2-3 months and that any ongoing degenerative disease of the cervical spine would have to be evaluated by an orthopedic surgeon. (Declaration of Phillip Cooke)

The court shall grant a motion for physical or mental examination under Section 2032.310 only for good cause shown.” (CCP § 2032.320(a).) Good cause requires a showing of relevancy to the subject matter and specific facts illustrating a need for the information and a lack of means for obtaining it elsewhere. (Vinson v. Superior Court (1987) 43 Cal.3d. 833, 840.)

Code of Civil Procedure section 2032.310 states in relevant part:

(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.

(b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be “accompanied by a meet and confer declaration under Section 2016.040.

Defendant’s request plaintiff Tammy Jorgenson submits to a physical medical examination before Gary Alegre, M.D., an orthopedic surgeon, on Friday

November 30, 2018 at 1:00 p.m., at 7248 South Land Park Drive, Suite 210, in Sacramento California. This physical medical examination before Dr. Alegre would

take place under the following conditions:

1) A physical examination of plaintiff which may include, but is not limited to:

• Vitals check (height, weight, blood pressure, heart rate)

• Grip strength test may be employed
• Range of motion exercises
• Manipulation of plaintiffs body

2) The physical examination would take approximately I hour to
complete.

3) Dr. Alegre would discuss plaintiffs current physical complaints she relates to the subject incident, not her complete medical history
4) Plaintiff would not be required to undergo any tests such x-rays.

The Court finds good cause to order a second medical exam by an orthopedic surgeon as one of the major issues in this case is whether the cervical disc injury requiring surgery is related to the automobile accident or instead an ongoing degenerative condition. Dr. Forner did not evaluate plaintiff’s cervical condition and specifically recommended that it be evaluated by an orthopedic surgeon. Plaintiff’s condition concerning her neck has changed significantly in the last two years, necessitating the second IME by an orthopedic surgeon. Plaintiff’s arguments do not persuade the Court that the motion should not be granted. Indeed, where a plaintiff’s injuries are complex, several examinations, by specialists in different fields, may be necessary. There is, as such, no limit on the number of physical or mental examinations which may be ordered on a showing of good cause. (Code Civ. Proc. § 2032.320(a); see Shapira v. Sup. Ct

.(1990) 224 Cal. App. 3d 1249,1255.) The good cause requirement checks any potential harassment of plaintiff. (See Id.)

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.