Crystal R. Kerrigan v. Janette Van Hirtum, et al.
Case No: 18CV03649
Hearing Date: Mon May 13, 2019 9:30

Nature of Proceedings: Motion Compel IME of Crystal Kerrigan; Compel IME of Madilyn Schrader

CASE:

Crystal R. Kerrigan, et al. v. David W. Gerrity, et al., Case No. 18CV03649 (Judge Sterne)

HEARING DATE: May 13, 2019

MATTER:

Motion for Order to Compel IME of Plaintiff Crystal R. Kerrigan and Request for Monetary Sanctions; Motion for Order to Compel IME of Plaintiff Madilyn R. Schrader and Request for Monetary Sanctions

ATTORNEYS:

John B. Richards for Plaintiffs Crystal R. Kerrigan and Madilyn R. Schrader, by and through her Guardian ad Litem Crystal R. Kerrigan

Lacy L. Taylor for Defendants David Gerrity and Janette Van Hirtum

TENTATIVE RULING: The motion of defendant David Gerrity to compel IME of plaintiff Crystal R. Kerrigan and request for monetary sanctions in the amount of $2,540.00 is granted as set forth herein. The motion of defendant David Gerrity to compel IME of plaintiff Madilyn R. Schrader is likewise granted, though no additional monetary sanctions are awarded since the two motions to compel are essentially duplicative.

BACKGROUND:

In August 2005, plaintiff Crystal R. Kerrigan (“Kerrigan”) began residing in an apartment located at 59 Ocean View Avenue, Unit A, Santa Barbara, California 93103 (the “Property”) pursuant to a written lease agreement with the owner of the Property, defendant David W. Gerrity (“Gerrity”). Kerrigan’s seven year old daughter, plaintiff Madilyn R. Schrader (“Schrader”), first resided at the Property shortly after her birth in February 2011. Defendant Janette Van Hirtum (“Van Hirtum”) is the property manager of the apartment building. During the time that plaintiffs lived at the Property, the water heater in the unit above them was prone to leaking, which caused mold to grow underneath plaintiffs’ kitchen sink and in the adjoining bathroom. Starting in December 2008, the Property also began leaking whenever it rained. Plaintiffs informed Gerrity and Van Hirtum of the water intrusion and mold problems, but instead of correcting the problems, defendants simply hired contractors to spackle over the affected areas and apply fresh coats of paint.

In March 2018, plaintiffs retained a mold specialist to perform moisture detection and mold testing at the Property. The results of the testing revealed significant levels of mold spores in plaintiffs’ kitchen, entryway, dining room, and bathroom. On April 21, 2018, plaintiffs permanently vacated the Property. Plaintiffs allege that between February 2014 and July 2018 they experienced a number of adverse health symptoms from the mold growth, including wheezing, asthma, coughing, runny eyes, diarrhea, depression, and anxiety. On July 25, 2018, plaintiffs filed their complaint against defendants for (1) negligence (four counts), (2) negligent infliction of emotional distress, (3) breach of implied warranty of habitability (common law), (4) breach of implied warranty of habitability (statutory), (5) private nuisance, and (6) breach of contract. Plaintiffs contend that defendants were aware of the water intrusion and mold problems, yet failed to correct the conditions.

On January 14, 2019, Gerrity served separate demands for IME on Kerrigan and Schrader for examination by Jonathan Corren, M.D., a board certified allergist and immunologist, to take place on February 15, 2019, at 2320 Bath Street, Suite 303, Santa Barbara. Plaintiffs objected to the scope of the IME’s. In separate motions, Gerrity now moves to compel. Monetary sanctions are requested in both motions.

ANALYSIS:

1. Motion to Compel IME of Plaintiff Crystal R. Kerrigan

A defendant in a personal injury action may seek an IME of the plaintiff. Code of Civil Procedure Section 2032.220 provides:

“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

“(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

“(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.

“(c) A demand 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 physician who will perform the examination.”

If the plaintiff objects to the IME request, the defendant may move for an order compelling compliance. Code of Civil Procedure Section 2032.250, subdivision (a), provides:

“If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff’s response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. . . .”

On January 14, 2019, defendant served a demand for IME on Kerrigan before board certified internist and allergist Jonathan Corren, M.D., to take place on February 15, 2019, at 2320 Bath Street, Suite 303, Santa Barbara, California. (Taylor Dec., ¶2, Ex. A.) The examination was to consist of “oral medication history and diagnostic testing, including skin prick allergy testing, blood testing, and x-rays.” (Ibid.) The purpose of the examination was to evaluate Kerrigan’s claims of mold exposure as alleged in her complaint. (Ibid.) On February 1, 2019, Kerrigan served her response and objections to the IME demand, with the principal objection being that she “[would] not submit to any x-rays, allergy testing of any kind, pulmonary testing, blood testing, allergy testing, diagnostic or other intrusive and/or pain evocative tests.” (Taylor Dec., ¶3, Ex. B, p. 6:6-9.) The parties met and conferred in an attempt to address Kerrigan’s objections, particularly her objection to the blood test and skin prick allergy test, but were unable to come to a resolution and on April 18, 2019, defendant filed his motion to compel, together with his request for sanctions.

In her complaint, Kerrigan alleges that she sustained personal injuries as the result of mold exposure in the apartment unit she rented from defendant. (Comp., ¶22.) Thus, Kerrigan has placed her physical condition at issue in the litigation, entitling defendant to an IME, and the sole issue presented by this motion is whether she can be compelled to undergo a blood test and skin prick test as part of her examination by Dr. Corren. Dr. Corren indicates that such testing is necessary in order to determine the cause of Kerrigan’s alleged symptoms. (Corren Dec., ¶3.) In his supporting declaration, Dr. Corren states:

“Allergy testing is performed in order to determine whether a patient is immunologically sensitive to a specific substance, such as molds, dust mites, cockroach, tree, grass and weed pollens.

“If a patient does not manifest a positive reaction to a prick skin test and/or blood test (see below) to a specific substance, then the patient is not allergic to that substance and will not manifest allergic symptoms, such as rhinitis or asthma, in response to that substance.

“The prick skin test is performed by gently pricking the skin on the patient’s back with a specialized device which contains a tiny amount of allergen extract (fluid containing allergen). After pricking, the allergy specialist will wait 15 minutes to check the results of the tests. For the purposes of the IME, the skin panel will consist of approximately 30 allergens, including all of the most common molds.

“The prick skin test causes minimal or no discomfort, which may last a few seconds, and no bleeding. If the test shows a positive result, there may be itching at the sight of the reaction. Rarely, a small amount of swilling [sic] and/or itching may occur a few hours after the tests.

“The allergy blood test requires that a small (20 gauge) needle be inserted into the vein of the patient’s forearm. Approximately 10-15 ml (2-3- teaspoons) of blood will be collected for analysis of allergic antibodies.

“This puncture may occasionally cause a mild to moderate amount of discomfort with a slight amount of bleeding.”

(Corren Dec., ¶¶ 4-9.)

Kerrigan’s opposition includes a declaration by Dr. Robin Bernhoft, who examined plaintiff on May 1, 2018. Kerrigan was subjected to a nasal swab, a stool test, and a blood test during the examination and the various procedures confirmed the presence of mold and/or mold toxins in her body. (Bernhoft Dec., ¶1.) Dr. Bernhoft chose not to perform skin prick allergy testing because the test results are not the most accurate and may not conclusively show whether the patient is not allergic to certain allergens. (Bernhoft Dec., ¶2.) According to Dr. Bernhoft, skin prick testing is only one of several medically approved testing methods that can be utilized to determine a person’s sensitivity to mycrotoxins. (Bernhoft Dec., ¶4.) Other procedures include nasal swabs, urine tests, and stool tests. (Ibid.)

When the cause and extent of a plaintiff’s injuries are in question, as in this case, the defendant must be allowed to defend against the allegations by means of an IME. Vinson v. Superior Court (1987) 43 Cal.3d 833, 838 (IME’s are meant to test the true extent of the plaintiff’s injuries). Although Dr. Bernhoft believes that a skin prick test is unnecessary, preferring instead nasal swabs, as well as stool and blood tests, the discovery statutes allow defendant to demand one physical examination with defendant’s own medical expert. Code Civ. Proc. §2032.220. Without such an examination, defendant would be unable to verify or evaluate Kerrigan’s claims of mold-related symptoms and Dr. Bernhoft’s findings. Defendant is not bound by plaintiff’s evidence and may present his own evidence in his defense since he specifically denies any causal link between the mold exposure and plaintiff’s alleged injuries.

Kerrigan argues that defendant has failed to describe “fully and in detail” the components and parameters of the proposed blood testing and allergy skin prick testing, but the court disagrees. Defendant’s IME demand indicates that “skin prick allergy testing [and] blood testing” will be performed. (Taylor Dec., ¶2, Ex. A.) Moreover, Dr. Corren states that the skin prick test will consist of approximately 30 allergens, including all of the most common molds, and that the allergy blood test will require one needle insertion and will extract approximately 10-15 ml (2-3 teaspoons) of blood. (Corren Dec., ¶¶ 6, 8.) Defendant has therefore provided sufficient information to determine the necessity of the tests being requested.

Kerrigan next argues that defendant has failed to provide any evidence that the proposed testing is not invasive or painful. The court again disagrees. Dr. Corren plainly states that the skin prick test generally causes “minimal or no discomfort” and that the blood test only occasionally causes “mild to moderate” discomfort with a slight amount of bleeding. (Corren Dec., ¶¶ 7, 9.) Dr. Bernhoft confirms that blood tests are commonly used to evaluate sensitivity to various allergens, with the sensitivity ranging from 60% to 95%. (Bernhoft Dec., ¶4.) Importantly, Dr. Bernhoft does not state that such testing is unduly painful or invasive. Accordingly, the court finds that the proposed allergy skin prick test and blood test are only minimally “painful, protracted, or intrusive” and not contrary to the requirements of Section 2032.220.

The case of Abex Corporation v. Superior Court (1989) 209 Cal.App.3d 755 is on point. Abex was an action for personal injuries allegedly resulting from asbestos exposure. The trial court denied the defendant’s motion to compel the plaintiff to submit to a biopsy by a dermatologist to determine the etiology of the warts on his hand, but the court of appeal reversed. While the plaintiff argued that the examination would require intrusive and potentially painful removal of body tissue, the court found that the skin biopsy was a procedure that would involve little pain or danger and did not qualify as one that was “painful, protracted, or intrusive” within the meaning of the discovery statutes. Id., at 758. The court noted that the plaintiff did not produce any affidavits regarding the discomfort of the biopsy. Ibid.

Lastly, Kerrigan argues that the skin prick allergy test has already been done and therefore is cumulative and unnecessary. On June 18, 2018, Kerrigan was examined by Dr. Roger Katz, a board certified immunologist, and subjected to skin prick testing, which confirmed that she is allergic to various allergens, including the Aspergillius mold type that was found in her apartment unit. (Richards Dec., ¶¶ 2, 3, Ex. 1.) However, plaintiff’s opposition does not state whether Dr. Katz took photographs of the test results showing plaintiff’s allergic reaction to certain allergens and/or whether the test results were preserved in any other way that would allow defendant’s medical expert to evaluate his findings and conclusions. Defendant’s demand for an IME of plaintiff by his own expert is therefore proper.

Based on the foregoing, the court will grant defendant’s motion to compel Kerrigan to submit to an IME with Dr. Corren. The examination shall take place at 2320 Bath Street, Suite 303, Santa Barbara, California, at a date and time to be agreed upon by the parties, which shall be not less than 30 days nor more than 60 days from the date of this order. The IME may include a physical examination, history, skin prick allergy testing, pulmonary function testing, x-rays, and blood testing.

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Code Civ. Proc. §2032.250, subd. (b). Here, the court finds that Kerrigan opposed defendant’s IME demand without legal justification and awards monetary sanctions to defendant in the amount of $2,540.00 for fees and costs incurred in bringing the motion. (Taylor Dec., ¶9.) The sanctions are awarded jointly and severally against Kerrigan and her attorney.

2. Motion to Compel IME of Plaintiff Madilyn R. Schrader

For the same reasons set forth above, the court will grant defendant’s motion to compel Schrader to submit to an IME with Dr. Corren. The examination shall take place at 2320 Bath Street, Suite 303, Santa Barbara, California, at a date and time to be agreed upon by the parties, which shall be not less than 30 days nor more than 60 days from the date of this order. The IME may include a physical examination, history, skin prick allergy testing, pulmonary function testing, x-rays, and blood testing.

Because this motion to compel is essentially duplicative of the previous motion, no further monetary sanctions are awarded.