2011-00115584-CU-MM

Diane Muro vs. Colin Arnold

Nature of Proceeding: Motion to Compel Independent Medical Examination

Filed By: Gosling, Sarah C.

Defendant Colin Arnold, M.D.’s motion to compel Plaintiff Diane Muro’s independent
medical examination is ruled upon as follows.

Trial is currently scheduled for June 30, 2014. Defendant moves to compel Plaintiff’s
IME on the grounds that on May 8, 2014, Plaintiff disclosed a new and separate
diagnosis of Sympathetic Opthalmia, a condition which may cause damage to her
other eye. Defendant argues that prior to May 8, 2014, there was no mention of Ms.
Muro’s diagnosis of Sympathetic Opthalmia. Defendant indicates that prior to this new
diagnosis, he did not believe that an IME was necessary. On May 16, 2014, Defendant’s counsel sent a letter asking if Plaintiffs would agree to the IME.

In opposition to the motion, Plaintiff’s counsel states that after Ms. Muro’s deposition
and prior to March 26, 2014, he advised Defendant’s attorney, Thomas Doyle, via
telephone conversation that Ms. Muro was diagnosed with Sympathetic Opthalmia.
(Declaration of Mark A. Muro, ¶3.) He further informed Mr. Doyle that Ms. Muro was
receiving care and treatment for Sympathetic Opthalmia at UC Davis Medical Center.
(Id.) Defendant subpoenaed Ms. Muro’s medical records from UC Davis, which were
produced on or about April 24, 2014. (Id. Exs. 2-3.) Ms. Muro’s medical records
indicated that she suffers from Sympathetic Opthalmia. (Id.) Thus, according to
Plaintiff, the instant motion is untimely as Defendant was on notice of the diagnosis
before the deadline to demand an IME expired. Plaintiff also argues that Defendant
waived his opportunity to conduct an IME because he failed to comply with the
requirements of CCP §2032.220.

The motion is DENIED. As an initial matter, the motion is defective as it fails to 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.” (CCP §2032.310(b).) Moreover, Defendant’s May 16, 2014 letter to
Plaintiffs failed to 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” as required by CCP §2032.220. Moreover, the
Court agrees with Plaintiff that the motion is untimely as it appears that Defendant was
put on notice of Ms. Muro’s Sympathetic Opthalmia prior to March 26, 2014.

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

Item 8 2011-00115584-CU-MM

Diane Muro vs. Colin Arnold

Nature of Proceeding: Motion for Protective Order

Filed By: Lambert, Aimee L.

Plaintiff Diane Muro and A.L. Muro’s (collectively “Plaintiffs”) Motion for Protective
Order requiring Defendant Colin Arnold, M.D. to Reduce his List of Retained Expert
Witnesses is ruled upon as follows.

This is an action for medical malpractice arising from Ms. Muro’s cataract surgery on
both eyes and subsequent intraocular lens exchange. Ms. Muro subsequently suffered
blindness in the right eye due to a detached retina.

On May 12, 2014, the parties exchanged their expert witness information. Defendant
listed three opthalmologists as retained experts to testify regarding the standard of
care, causation and extent of damages, if any. The three opthalmologists are: (1) Dr.
Grutzmacher ($800/hour for deposition, located in Sacramento, California), (2) Dr.
Mark ($500/hr for deposition, located in Sunnyvale, California), and (3) Dr. Pesavento
($500/hr for deposition, located in Riverside, California).

A party may move for a protective order that includes a directive “That a party or a side
reduce the list of employed or retained experts designated by that party or side under
subdivision (b) of Section 2034.210.”

Plaintiffs seek an order requiring Defendant to elect a single expert opthalmologist to
testify regarding the standard of care, causation, and damages on the grounds that all
three expert testimonies are cumulative and the costs to take their depositions will be
unduly expensive.

In opposition to the motion, Defendant argues that Dr. Pesavento’s testimony is not
cumulative of the other experts because he is not proffering testimony regarding the
standard of care. The Court notes that Defendant’s expert disclosure specifies that Dr.
Pesavento will only be testifying regarding causation and damages, if any.

Defendant further argues that the testimonies are not duplicative because each expert
has a different specialty or practice and each specialty or practice is directly related to
portions of the care and treatment provided by Defendants, the subsequent care
provided by UC Davis Medical Center, and Ms. Muro’s retinal detachment.
Specifically, Dr. Grutzmacher is a board-certified, community-based opthalmologist
with a general practice who may testify regarding the cataract procedure, intraocular
lens exchange, subsequent retinal detachment and blindness, causation and
damages. Dr. Mark is a board-certified opthalmologist and corneal specialist who may
testify regarding the corneal procedure performed at UC Davis Medical Center,
causation and damages. Dr. Pesavento is a board-certified opthalmologist and retinal
specialist who may testify regarding causation and damages.

Plaintiff’s motion is DENIED. Given that each expert has a different specialty and
appears to opine on different aspects of Ms. Muro’s treatment , the Court is not
convinced that Defendant’s experts’ testimonies are duplicative and cumulative or
unduly burdensome.

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