Case Number: BC652521 Hearing Date: May 14, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR AN ORDER ALLOWING SECOND MEDICAL EXAMINATION

On March 3, 2017, Plaintiff Kevin Kelley (“Plaintiff”) filed this action against Defendants Izat Murataliev, Harutyun Ajaryan, Irena Arakelyan, Vahagn Siroyan, SVC Transportation LLC, and Unique Transportation, Inc. for general and motor vehicle negligence arising out of a March 4, 2017 automobile collision. Defendants Harutyun Ajaryan and Irena Arakelyan (collectively, “Defendants”) move for an order allowing a second medical examination of Plaintiff.

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 Civ. Proc., § 2032.220, subd. (a).) Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, 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.)

In response to Form Interrogatories Nos. 6.1 and 6.2, Plaintiff claims injuries to his neck, back pain, left elbow pain, and left leg pain as a result of this accident. In response to Form Interrogatory No. 6.3, Plaintiff claims ongoing pain, emotional anguish from physical injuries, and flare-ups to his back. In response to Form Interrogatory No. 6.4, Plaintiff lists a number of healthcare providers that he has treated with as a result of the accident, including SoCal Orthopedic Institute, a neurosurgeon, and decompression surgeon. At his January 17, 2019 deposition, Plaintiff testified he sustained injuries to his bilateral shoulders, neck, upper back, lower back (surgery), left leg, and experienced continuing pain to his left shoulder, right shoulder, neck, upper back, and lower back. Plaintiff testified he would consider neck surgery if his pain increased and indicated a recent pain level of 10/10 in his right shoulder. Plaintiff had a spinal disc condition prior to the accident.

Defendants seek to have Plaintiff undergo a spinal examination with Brian D. Rudin, M.D., who will perform a physical evaluation of Plaintiff’s neck injuries, cervical spine injuries, thoracic spine, upper back and lower back injuries, and the relationship among the injuries and alleged deficits. Defendants also seek an orthopedic examination by Richard Rosenberg, M.D., who will evaluate the nature and extent of injuries to Plaintiff’s bilateral shoulders and upper extremities, and will not evaluate any areas examined by Dr. Rudin.

Plaintiff argues the two medical examinations are identical and Defendants have not shown Plaintiff’s injuries are complex. Plaintiff contends Defendants have failed to distinguish between the two examinations and two doctors. Based on a reading of each doctor’s qualifications, Plaintiff argues it is evidently clear that either doctor can perform both examinations.

Defendants have not shown good cause for the two examinations. It is not clear that Plaintiff’s injuries are distinctive enough such that Defendants require examinations by a joint/orthopedic specialist and a spinal specialist. For example, Defendants did not provide declarations by Dr. Rudin or Dr. Rosenberg, or other evidence, showing there is good cause for the two examinations or why one of the doctors is not able to conduct the examination as to all of the injuries.

Accordingly, the Motion for an order allowing two physical examinations is DENIED without prejudice.

Moving party to give notice.