2013-00138485-CU-PA

Jennifer Jacobs vs. Garda CL West, Inc.

Nature of Proceeding: Motion to Compel Independent Medical Examination

Filed By: Tashroudian, Mona
Filed By: Tashroudian, Mona

Defendants Garda CL West, Inc. (“Garda”) and Edward Arnold Junior Phelna’s
(“Phelna”) motion to compel Plaintiff Jennifer Jacobs’ IME is granted.

In this personal injury action in which Plaintiff alleges that she suffered distinct injuries
to her wrist and spine, Defendant Garda and Defendant Phelna (who was driving a
Garda company vehicle) each separately noticed an IME, one by an orthopedist
specializing in broken bones to evaluate Plaintiff’s wrist injury, and the other by a
neurosurgeon to evaluate the compression fracture to Plaintiff’s spine. Plaintiff
objected to attending two separate IMEs on the basis that a single physician could
evaluate both body parts in a single exam. Defendants now move to compel Plaintiff
to attend two separate IMEs.

Here, there is no question that Defendants are, at a minimum, entitled to one IME as a
matter of right pursuant to CCP § 2032.220. Further, Garda and Phelna are each
entitled to demand Plaintiff submit to an IME. Indeed, in a case such as this where
Plaintiff is “seeking recovery for personal injuries, any defendant may demand one
physical examination of the plaintiff…” (CCP § 2032.220(a) [emphasis added].) In
opposition, Plaintiff simply argues that the interests of both Defendants are the same
and the Court has the power to refuse two separate IMEs by the Defendants by way of
a protective order. (Opp. 6:7-14.) Plaintiff, however, never moved for a protective
order and cannot obtain such relief through her opposition. In any event, she makes
no showing that the “burden, expense, or intrusiveness of [the two IMEs] clearly
outweighs the likelihood that the information sought will lead to the discovery of
admissible evidence.” (CCP § 2017.020.) Thus, given that each defendant is entitled
to demand their own IME, the motion is granted regardless of whether good cause
existed for an additional IME if the defendants were considered a single “defendant”
for purposes of Section 2032.220(a).

In any event, arguendo, even if Defendants were not each entitled to their own
separate IMEs, such that they were collectively entitled to a single IME as a matter of
right, they have shown that they are entitled to an additional IME pursuant to CCP §§
2032.310, 2032.320. The Court shall grant a motion for an additional IME for good
cause. (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.) Here, the Court finds that good cause exists for an order requiring Plaintiff to
appear for an IME by neurosurgeon Dr. Lifschutz and orthopedic surgeon Dr.
Goldberg. Case law recognizes that there is no limit on the number of IMEs that may
be ordered on a showing of good cause and that multiple IMEs by specialists in
different fields may be appropriate where the plaintiff’s injuries are numerous. (
Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255) Here, Plaintiff seeks
recovery for a broken wrist and spinal injuries stemming from a compression fracture.
Thus, Plaintiff’s wrist and back conditions have been placed at issue. Indeed, she
testified at her deposition in November 2013, that she continues to experience issues
related both her wrist and her back. Good cause exists to allow Defendants to obtain
an IME conducted by Dr. Lifschutz, a neurosurgeon, who will be able to evaluate
Plaintiff’s spine injury, and a separate IME conducted by Dr. Goldberg, an orthopedist,
to examine and evaluate Plaintiff’s wrist injury. Good cause exists to allow two
separate IMEs focused on separate injuries and conducted by physicians with
expertise specific to the separate injuries.

Plaintiff’s opposition presents no persuasive reason why Defendants should not be
allowed to conduct two IMEs. Indeed, she argues that she has been seen by five
separate doctors and none have indicated that surgery is necessary for her back
injury. The fact that surgery may not have been recommended, does not preclude an
IME focused on Plaintiff’s back injury to allow Defendants to fully evaluate the injury.
In addition, the Court does not agree that two IMEs would, as Plaintiff argues in
conclusory fashion, “impose unjust hardship on the Plaintiff as she would have to both
incur travel expenses to and from Chico and miss school.” (Oppo. 6:1-3.) Indeed,
Plaintiff submitted no declaration demonstrating any such burden and as Defendants
point out in their motion, the IMEs are scheduled during Plaintiff’s Spring Break.

The motion is granted.

Pursuant to CRC Rule 3.1312, Defendants shall submit a formal order that specifies
“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” as required by CCP § 2032.210(a). The proposed order does not
contain the required information.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Defendants’ counsel to notify
Plaintiff’s counsel immediately of the tentative ruling system and to be available at the
hearing, in person, or by telephone, in the event Plaintiff’s counsel appears without
following the procedures set forth in Local Rule 1.06(B).