Case Number: PC054709    Hearing Date: September 15, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CYNTHIA SCHOTT,
Plaintiff(s),
vs.

WYMAN HOSHING, ET AL.,

Defendant(s). )
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) CASE NO: PC054709

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION TO COMPEL A SECOND IME WITHOUT PREJUDICE

Dept. 92
1:30 p.m. — #34
September 15, 2014

Defendants, Wyman Hoshino and Geryhound Lines, Inc.’s Motion to Compel a Second IME is Denied Without Prejudice. The parties are ordered to meet and confer in compliance with the discussion below prior to filing a second motion concerning this issue.

1. Background Facts
Plaintiffs, Cynthia Schott, Jody Madden, and Kathleen Madden filed this action against Defendants, Wyman Hoshino and Greyhound Lines, Inc. for damages arising out of an automobile accident.

2. Motion to Compel Second IME
Defendants seek to compel Plaintiff, Jody Madden to sit for two independent medical examinations. Plaintiff has an examination scheduled with an orthopedic surgeon, Dr. Kreitenberg. Defendants contend Plaintiff’s injuries are complex, and an additional examination with a spinal expert is necessary. Notably, Plaintiff has had hip replacement surgery, which he attributes to the accident, and lumbar fusion, which he also attributes to the accident. Defendants therefore seek to compel an examination with Dr. Tony Feuerman, a boad certified neurosurgeon who specializes in treating spinal conditions.

Plaintiff opposes the motion, arguing Dr. Kreitenberg, an orthopedic surgeon, is competent to conduct an examination concerning both the hip injury and also the back injury. Plaintiff notes that Dr. Kreitenberg holds himself out as an expert concerning spinal injury, has treated spinal injuries, and has a patent on a product relating to the spine. Plaintiff also argues the motion is procedurally defective, as it does not contain a separate statement and fails to distinguish between the two proposed examinations.

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.” (CCP § 2032.320(a).)

The examination will be limited to whatever condition is “in controversy” in the action. (CCP § 2032.020 (a).) This means the specific injury or condition that is the subject of the litigation. The examination must be directly related thereto. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.) Often, a party’s pleadings put his or her mental or physical condition in controversy … as when a plaintiff claims continuing mental or physical injury resulting from defendant’s acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839—plaintiff claimed ongoing emotional distress from sexual harassment by former employer.) Discovery responses can also frame the issues regarding the injuries and damages alleged.

Where plaintiff’s injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of plaintiff. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255—second mental examination may be ordered.)

The primary issue before the Court is whether Dr. Kreitenberg is an expert in spinal matters, such that requiring two examinations is not necessary. Plaintiff argues there is evidence that Dr. Kreitenberg performs spinal surgeries, is an expert concerning spinal surgeries, and has invented a device that relates to spinal surgeries. Plaintiff supports his opposition with Dr. Kreitenberg’s CV, wherein he indicates he holds the patent for a neck venous and arterial examination teaching tool; as well as copies of deposition transcripts from various cases in which Dr. Kreitenberg has testified.

Defendants, in reply, provide the Declaration of Dr. Kreitenberg, which explains that the invention for which Dr. Kreitenberg holds the patent relates to cardiac injury, not to spinal injury. Dr. Kreitenberg also explains that the patent is thirty years old. The patent, therefore, does not show that Dr. Kreitenberg is an expert in spinal issues.

The Court has reviewed the deposition transcripts as well. In the first transcript, Dr. Kreitenberg testifies concerning how he determined that the patient’s cervical spine had degenerative changes that were not related to trauma. It appears Dr. Kreitenberg was testifying as an expert in the case. He also testified that he was looking at her neck, back, and both knees, and could not determine whether she had pre-existing pain from the records presented to him.

In the second transcript, he explains that the pateitns had normal strength and normal reflexes in connection with the lumbar spine, and that he had discussed chiropractic treatment, exercise, possible injections, and surgery as a last resort with the patient. It appears he was testifying in his capacity as a defendant in that case.

In the third transcript, Dr. Kreitenberg testified that he has “done many spine surgeries with [Dr. Lauryssen].” He also testified concerning the type of treatment he would have recommended for that patient’s back.

In the fourth transcript, he testified concerning the plaintiff patient’s back condition, whether it changed over time, and how he would have approached the patient’s back pain differently from how the defendant doctor approached the pain.

In connection with the reply papers, Dr. Kreitenberg explains that he evaluates spinal pain as part of his practice, but he has never performed a solo spine surgery, and always defers those surgeries to specialists. He explains that he has provided assistance during spinal surgeries, but has never performed one on his own.

The Court finds the moving papers are sufficient to establish good cause for two examinations. Plaintiff underwent a spinal surgery in connection with the damages he claims from the accident. Defendants are entitled to have Plaintiff examined by someone who does spinal surgeries as a part of his practice.

Plaintiff also argues the motion is procedurally defective, both because there is no separate statement and also because the moving papers do not explain what tests Dr. Kreitenberg and Dr. Feuerman will conduct. CRC 3.1345(a)(6) requires a separate statement in connection with a motion to compel a medical examination over objection. In this case, there was technically an objection to the IME with Dr. Feuerman. However, Defendants were not entitled to notice the IME without a formal motion, as it is the second IME, and a noticed motion is required to conduct more than one IME. Thus, the notice of IME and the objection thereto were both essentially attempts to meet and confer by the parties prior to raising the issue with the Court. There is, however, no requirement of a separate statement in connection with a motion to compel a second IME.

Plaintiff also argues the motion fails to distinguish between the tests Dr. Kreitenberg will conduct and those Dr. Feuerman will conduct. At page 7 of the moving papers, Defendants explain that Dr. Kreitenberg will solely evaluate Plaintiff’s knee, while Dr. Feuerman will solely evaluate his back. It therefore appears the two will not conduct duplicative examinations. The moving papers, however, are procedurally defective. The notice of motion must state the time, place, identity and speciality of the examiner, and the “manner, conditions, scope and nature of the examination.” (CCP §2032.310(b).) The requirement for specification of the “manner, conditions, scope and nature of the examination” apparently requires disclosure of whatever diagnostic tests and procedures will be utilized (x-rays, blood and urine samples, etc.). (See CCP §2032.220(c).) The notice of motion must be accompanied by a separate document setting forth the discovery request, the Declarations must state facts showing that “a reasonable and good faith attempt” to arrange the examination by stipulation was unsuccessful. (CCP §2032.310(b).)

The motion to compel is denied on the ground that the notice of motion fails to comply with CCP §2032.220, et seq. The Court notes, however, that this denial is without prejudice, and that it would be inclined to grant a future motion if it were procedurally proper. The Court therefore encourages the parties to work together to resolve any outstanding issues concerning the terms and conditions of the second IME without further Court intervention.

Dated this 15th day of September, 2014

Hon. Elia Weinbach
Judge of the Superior Court