Case Number: BC660835 Hearing Date: June 04, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Alma BUstamante,

Plaintiff,

v.

Hugo Ismael Gutierrez, et al.,

Defendants.

Case No.: BC660835

Hearing Date: June 4, 2018

[TENTATIVE] order RE:

Motion to compel independent medical examination

BACKGROUND

This case arises out of a motor vehicle collision. Defendants Hugo Ismael Gutierrez and G&H X-Press, Inc. (“Defendants”) move for an order compelling Plaintiff to submit to a neurological examination by Dr. Barry Ludwig. Plaintiff opposes the motion, and Defendant has replied.

Legal Standard

Where the physical condition of the plaintiff is in controversy in a personal injury case, the defendant may seek discovery by physical examination of the plaintiff. (Code Civ. Proc. §§ 2032.020, 2032.220.)[1] A defendant is permitted to demand one physical examination of the plaintiff in a personal injury action, as long as the examination complies with the statutory requirements. (§ 2032.220, subd. (a).)

Should a party wish to perform a subsequent physical examination or any mental examination, a party must obtain leave of court. (§ 2032.310, subd. (a).) Section 2032.310(b) provides that the motion “shall specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination.” A meet and confer declaration must also accompany the motion. (§ 2032.310, subd. (b).) There must be a showing of “good cause” for a motion compelling an examination to be granted. (§ 2032.320, subd. (a).)

Further, an order granting either a physical or mental examination must specify “the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (§ 2032.320, subd. (d).) The order for the mental examination must specify the diagnostic tests to be performed “by naming the test and procedures to be performed.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 261–262.) “Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant’s need for a meaningful opportunity to test the plaintiff’s claims of physical or mental injury.” (Id. at 261.)

DISCUSSION

Plaintiff claims the following injuries in her responses to Form Interrogatory 6.2: “Plaintiff sustained a traumatic brain injury, injuries to her neck, back, shoulders, knees and legs.” (Def. Exh. A.) In response to Form Interrogatory 6.4, Plaintiff stated that she received treatment from a neurologist, A. Kevin Aminian, M.D. (Ibid.) Plaintiff also testified at her deposition that she is receiving treatment with a neuropsychologist every two to three weeks. (Def. Exh. B, Pl. Depo., at pg. 77.) Defendants move to compel a neurological IME based on the above representations made by Plaintiff.

In the opposition, Plaintiff argues that there is insufficient cause to compel this examination because Defendant has already noticed two other medical examinations. The first examination, set for May 3, 2018, was a mental examination to be performed by David J. Sheffner, M.D., who is a psychiatrist. The second examination, set for May 16, 2018, was a physical examination to be performed by Charles D. Rosen, M.D., who is an orthopedic surgeon. Plaintiff states that the parties entered into a stipulation to allow these two physical and mental examinations. However, Plaintiff refuses to submit to the neurological examination as Plaintiff contends Defendants have failed to provide adequate good cause to support this third examination.

The Court finds that Defendants have shown sufficient good cause to compel the neurological examination. Defendants have specified the manner, conditions, nature, and scope of the examination, as required by CCP §2032.220 as follows:

Motor function and balance tests, sensory exam, reflex exam, and coordination and nerve testing . . . and will be limited to the areas of the body Plaintiff claims were injured or symptomatic as a result of the subject accident.

Plaintiff’s deposition testimony demonstrates that she is suffering from both physical and neurological injuries, and she is being treated by a neurologist. Under these circumstances, the Court finds good cause to allow Defendants to have their own neurologist examine Plaintiff. In addition, the tests proposed by Dr. Ludwig are sufficiently limited to test for physical neurological symptoms, rather than testing mental issues covered by the first mental examination by Dr. Sheffner, and thus, it appears that there will be little, if any, overlap between the tests already performed by Dr. Sheffner and the tests to be performed by Dr. Ludwig. Therefore, the Court finds that Defendants have shown good cause to compel the neurological examination and grants the motion.

CONCLUSION AND ORDER

The motion to compel the neurological examination of the Plaintiff by Dr. Ludwig is granted.

All parties should note the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

The Court concurrently signs the amended proposed ordered lodged with the Court by Defendant, which lists the time, place, manner, and tests to be performed by Dr. Ludwig.

DATED: June 4, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Any further statutory references are to the Code of Civil Procedure.