Jeanne Marie McCarthy v. Daniel Emilio Casanovas, et al. CASE NO. 112CV237750
DATE: 23 May 2014 TIME: 9:00 LINE NUMBER: 11
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Thursday 22 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 23 May 2014, the motion of defendants Daniel Emilio Casanovas (“Mr. Casanovas”) and Maria Casanovas (“Ms. Casanovas”) (collectively “Defendants”) to compel plaintiff Jeanne Marie McCarthy (“Plaintiff”) to attend a second independent medical examination (“IME”) was argued and submitted. Plaintiff filed a formal opposition to the motion, in which she requests monetary sanctions.

Statement of Facts

This is a personal injury case that arises out of a three-car rear end motor vehicle accident that occurred on 21 December 2013, on the northbound U.S. Highway 101 in Mountain View, California.

Plaintiff was stopped in traffic when her vehicle was rear-ended by Mr. Casanovas, who was operating a vehicle that was owned by Ms. Casanovas. The impact of the collision pushed Plaintiff’s vehicle into the vehicle stopped in front of her.

Plaintiff alleges that, as a result of the accident, she sustained injuries to her head, neck, lower back, arms, and hands. Specifically with regard to her arms and hands, Plaintiff alleges injury in the form of carpal tunnel syndrome and a left thumb injury.

Following the accident, Plaintiff sought treatment from her primary care physician, Richard Morgan, M.D. (“Dr. Morgan”), who specializes in internal medicine, for her head, neck, and low back injuries. Plaintiff was also diagnosed with moderately severe carpal tunnel syndrome and was referred to an orthopedic surgeon, Michael Norris, M.D. (“Dr. Norris”), who specializes in hand injuries. After her referral to Dr. Norris, Plaintiff continued to be treated by Dr. Norris for her hand complaints and by Dr. Morgan for her head, neck, and lower back complaints.

Discovery Dispute

On 7 January 2014, Defendants served Plaintiff with demands for two separate IMEs. (See Arballo Dec., p. 8:17-18.)

The first IME was set for 24 February 2014, with Richard Sherwood, M.D. (“Dr. Sherwood”), an orthopedic surgeon who specializes in hand injuries. (See Arballo Dec., p. 8:18-21, Ex. A.) The examination was to consist of an assessment of Plaintiff’s “hands, wrists, and related musculoskeletal and neurological tissues and structures.” (Id.) The scope of the examination was to include “a history of complaints related to the foregoing parts of plaintiff’s body since the accident herein, a past history of similar complaints to plaintiff’s hands and wrists, problems or difficulties to the same parts of the body and plaintiff’s current complaints.” (Id.) The examination would not include any painful or intrusive tests or any urine or blood tests. (Id.)

The second IME was set for 27 February 2014, with Dave Atkin, M.D. (“Dr. Atkin”), an orthopedic surgeon. (See Arballo Dec., p. 8:21-25, Ex. B.) The examination was to consist of an assessment of Plaintiff’s “neck and back and related musculoskeletal and neurological tissues and structures.” (Id.) The scope of the examination was to include “a history of complaints related to the foregoing parts of plaintiff’s body since the accident herein, a past history of similar complaints to plaintiff’s hands and wrists, problems or difficulties to the same parts of the body and plaintiff’s current complaints.” (Id.) The examination would not include any painful or intrusive tests or any urine or blood tests. (Id.)

On 16 January 2014, Plaintiff’s counsel sent a letter to Defendants’ counsel objecting to the two separate IMEs. (See Arballo Dec., p. 8:25-28, Ex. C.) Plaintiff’s counsel indicated that Code of Civil Procedure section 2032.220, subdivision (a) allowed Defendants only one physical examination of Plaintiff without a court order. (Id.) Plaintiff’s counsel requested that Defendants pick which examination they would like Plaintiff to attend, as both of the physicians were orthopedic surgeons. (Id.)

Defendants’ counsel sent a reply letter on 24 January 2014, stating that two separate IMEs were necessary “in order to properly evaluate both of plaintiff’s claims of injury to her spine and injury to her hands.” (Arballo Dec., p. 9:1-5, Ex. D.) Defendants’ counsel indicated that Dr. Sherwood was a hand surgeon and would only evaluate Plaintiff’s hands and wrists for purposes of addressing her carpal tunnel issues. (Id.) He further indicated that Dr. Atkin was an orthopedic surgeon and would only evaluate Plaintiff’s neck and back. (Id.) He asserted that “[g]iven plaintiff’s ongoing, distinctive complaints to these two separate areas of her body, it is not possible to have meaningful medical examination conducted of plaintiff by only one doctor.” (Id.) He advised that the IME with Dr. Sherwood would remain as scheduled for 24 February 2014, and requested that Plaintiff agree to stipulate to Dr. Atkin performing a second IME for her spinal complaints. (Id.) He advised that Defendants would otherwise move the court for an order granting the additional IME with Dr. Atkin as there is good cause for the same. (Id.)

On 3 February 2014, Plaintiff’s counsel advised that Plaintiff would attend the IME with Dr. Sherwood, but would not stipulate to the second IME with Dr. Atkin because it is also an orthopedic examination and would be duplicative of the examination with Dr. Sherwood. (See Arballo Dec., p. 9:6-8, Ex. E.) Plaintiff’s counsel asserted that there was no support for Defendants’ position that two different orthopedic injuries require examinations by two different orthopedic surgeons. (Id.) Plaintiff’s counsel contended that the fact that Dr. Atkin and Dr. Sherwood specialize in different body parts is irrelevant because, “regardless of the individual specialties of the orthopedists [. . .] chosen, their board certifications should accompany the requisite general orthopedic knowledge to meaningfully evaluate [Plaintiff’s] injuries.” (Id.) Plaintiff’s counsel asserted that there were orthopedic surgeons capable of evaluating both areas of the body in controversy, there are no new and/or different injuries, and the injuries are not so complex and unrelated such that a single physician would be incapable of performing a meaningful evaluation. (Id.)

Plaintiff attended the IME with Dr. Sherwood on 24 February 2014. (See Arballo Dec., p. 9:9-10.) Plaintiff did not attend the second IME with Dr. Atkin. (See Arballo Dec., p. 9:10-11.)

On 22 April 2014, Defendants served a first amended demand for an IME with Dr. Atkin, set for 5 June 2014. The first amended demand for IME with Dr. Aktin is the same as the original, with the exception of the scheduled examination date.

On 24 April 2014, Defendants filed the instant motion to compel Plaintiff to attend the IME with Dr. Atkin, set for 5 June 2014. On 12 May 2014, Plaintiff filed papers in opposition to the motion, in which she requests monetary sanctions. Defendants filed a reply on 19 May 2014.

Discussion

I. Defendants’ Motion to Compel Plaintiff to Attend a Second IME

A. Separate Statement

As a preliminary matter, and though not addressed by the parties, the Court notes that Defendants did not file a separate statement in support of their motion.

A separate statement is required for a motion to compel a medical examination over objection. (Cal. Rules of Court, rule 3.1345(a)(6).) A separate statement must provide “all the information necessary to understand each discovery request and all the responses to it that are at issue,” and be “full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345(c).) While the Court has discretion to deny the motion for failure to provide a separate statement, it is not required to do so. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Here, Defendants fully describe in their motion the reasons why a second IME should be compelled and provided the Court with a copy of the demand for IME that is at issue. Accordingly, the lack of a separate statement will not prevent the Court from addressing the merits of the motion, just as it has not prevented Plaintiff from filing a substantive opposition. Thus, in deference to the principle that matters should be decided upon their merits, the Court will overlook Defendants’ failure to file a separate statement.

B. Legal Standard

Subject to the limits of Code of Civil Procedure section 2019.010, any party may obtain discovery by means of a physical examination of a party to the action. (Code Civ. Proc., § 2032.020, subd. (a).) The right to a physical examination does not include “any diagnostic test or procedure that is painful, protracted, or intrusive.” (Code Civ. Proc., § 2032.220(a)(1).) Any exam will be limited to the condition in controversy in the action; i.e., it must directly relate to the specific injury or condition that is the subject of the litigation. (Roberts v. Super. Ct. (1973) 9 Cal. 3d 330, 337; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 2009) at 8:1551-8:1552.)

Under Code of Civil Procedure section 2032.220, subdivision (a), any defendant may demand one physical examination of the plaintiff without leave of the court in any case in which the plaintiff is seeking recovery for personal injuries. If a defendant who has demanded a physical examination deems that any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand. (Code Civ. Proc., § 2032.250, subd. (a).)

If the defendant seeks to have an additional physical examination of the plaintiff conducted, he or she must seek leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) The court shall grant such a motion upon a showing of good cause. (Code Civ. Proc., § 2032.320, subd. (a); Shapira v. Super. Ct. (1990) 224 Cal. App. 3d 1249, 1255.) Good cause requires a showing of both: (1) relevance to the subject matter and (2) specific facts showing a need for the information sought. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 840.) There is no limit on the number of physical exams that may be ordered on a showing of good cause. (Shapira v. Super. Ct. (1990) 224 Cal. App. 3d 1249, 1255; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 2009) at 8:1558.5.)

If the court orders an additional physical examination, it must specify the person, or persons, who will perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination to be performed. (Code Civ. Proc., § 2032.320, subd. (d).) By including such specific information in its order, the court “confirms that [it] 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 [. . .] injury.” (Carpenter v. Super. Ct. (2006) 141 Cal.App.4th 249, 261.)

C. Analysis

Defendants argue that they are entitled to a second IME of Plaintiff absent a showing of good cause because they each are entitled to demand one physical exam of Plaintiff under Code of Civil Procedure section 2032.220. Alternatively, Defendants argue that there is good cause for the Court to order the IME with Dr. Atkin.

Code of Civil Procedure section 2032.220, subdivision (a) states that “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff.” (Code Civ. Proc., § 2032.220, subd. (a) (emphasis added).)

Defendants assert that under the language of the statute, each defendant is entitled to demand a separate physical examination of the plaintiff and, thus, Mr. Casanova and Ms. Casanova are both entitled to demand one physical examination of Plaintiff. Defendants argue that since only one IME has taken place, with Dr. Sherwood, they are still entitled to a second IME on demand.

Plaintiff argues that Defendants both demanded the physical examination that was performed by Dr. Sherwood on 24 February 2014. Plaintiff points out that the 7 January 2014 demand letter for the IME with Dr. Sherwood stated, “Defendants hereby demand that plaintiff, JEANNE MARIE McCARTHY, appear for a medical examination pursuant to Code of Civil Procedure § 2032.210 et seq.” (Arballo Dec., Ex. B, p. 1.) Plaintiff contends that based on the language of the 7 January 2014 letter, each defendant demanded and received the one physical examination of Plaintiff to which they are entitled under the statute.

The parties do not cite to any case law, and the Court is aware of none, that addresses this particular issue. The Court notes that Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2012) p. 8I-4, § 8:1523, indicates that the statute allowing each defendant one IME may be a “glitch,” especially where the injury issues are the same as to each defendant. Moreover, Plaintiff persuasively argues that both Mr. Casanova and Ms. Casanova demanded that Plaintiff submit to the IME with Dr. Sherwood. Thus, both of the Defendants have exercised their right under Code of Civil Procedure section 2032.220 to demand one physical examination of Plaintiff, and are not entitled to demand a second IME absent a showing of good cause.

Defendants argue that there is good cause for an order granting the IME with Dr. Atkin because pertains to body parts that Plaintiff has placed in controversy, her neck and back. Defendants further assert that Plaintiff’s “neck and back injuries are separate and distinct from Plaintiff’s alleged carpal tunnel hand injury, which require Plaintiff to be examined by two medical experts in different fields of expertise.” (Mem. Ps & As., p. 4:12-14.) Defendants contend that their position is supported by the fact that Plaintiff has relied upon “multiple medical experts to treat her separate and distinct injuries.” (Mem. Ps & As., p. 4:16-18.) Defendants point out that Plaintiff sought treatment from Dr. Morgan, who specializes in internal medicine, for her neck and back injuries and Dr. Norris, an orthopedic surgeon who specializes in hand injuries, for her hand injuries and carpal tunnel syndrome. Defendants also state that they “cannot reasonably find a hand surgeon specialist who also specializes in neck and back complaints.” (Mem. Ps & As., p. 4:24-25.)

Furthermore, Defendants argue that good cause exists for an order granting the IME with Dr. Atkin because they will be unfairly prejudiced if they are not allowed to present medical experts to contest the findings of Plaintiff’s multiple treating physicians. Defendants anticipate that Plaintiff will present expert testimony from both Dr. Morgan and Dr. Norris at trial regarding their separate treatment of Plaintiff’s body parts. Defendants argue that their hand surgeon specialist, Dr. Sherwood, is best equipped to analyze, assess, and synthesize the findings presented by Dr. Norris at trial regarding Plaintiff’s carpal tunnel syndrome. Similarly, Defendants argue that Dr. Atkin, their proposed orthopedic surgeon, is best equipped to testify in response to Dr. Morgan’s opinions regarding Plaintiff’s neck and back complaints. Defendants contend that they will be unduly prejudice and unable to adequately prepare a defense in response to Plaintiff’s treating physicians if they are precluded from conducting the IME with Dr. Atkin addressing Plaintiff’s neck and back injuries.

Conversely, Plaintiff argues that mere separate and distinct injuries do not rise to the level of good cause for an additional IME with Dr. Atkin. Plaintiff asserts that several exams by specialists in different fields are only necessary where the plaintiff’s injuries are complex. Plaintiff contends that her injuries are not complex and should be “within the knowledge and training of a general orthopedist.” In support of her position, she points out that all of her injuries were treated by her primary care physician, Dr. Morgan, with the exception of her “injuries to her upper extremity.” She asserts that “[w]hen orthopedic injuries are serious or complex a patient’s primary care doctor refers her to an orthopedic specialist, which Dr. Morgan did not do in this case.” However, this statement is clearly erroneous as Plaintiff was referred to and obtained treatment from Dr. Norris who is an orthopedic surgeon, specializing in hand injuries. In light of the referral to Dr. Norris, it does appear that Plaintiff’s hand injuries are complex enough to warrant evaluation by a specialized hand surgeon.

Moreover, the majority of Plaintiff’s injury claims as related to her neck and back require a general orthopedic evaluation. Defendants will be significantly prejudiced if they are precluded from having Plaintiff examined by a general orthopedist because Defendants’ ability to rebut Plaintiff’s claims regarding her neck and back will be limited.

Plaintiff’s contention that Defendants should have selected one physician who would be able to comment on all of her orthopedic injuries is without merit. It is not clear that a physician would be able to ascertain whether the nature and extent of a plaintiff’s injuries were outside the scope of his or her expertise without first performing an examination of the plaintiff. The information provided to a doctor about a plaintiff during a telephone conversation regarding the possibility of the doctor performing an IME on that plaintiff may not be sufficient for the physician to determine at the outset whether the plaintiff’s injuries present complexities that are beyond the scope of his or her expertise. Moreover, Defendants assert that they “cannot reasonably find a hand surgeon specialist who also specializes in neck and back complaints.” (Sep. Stmt., p. 4:24-25.)

Finally, Plaintiff’s argument that the instant motion was brought solely to harass is without merit. As previously indicated, the majority of Plaintiff’s injury claims as related to her neck and back require a general orthopedic evaluation thereby necessitating the IME with Dr. Atkin. Plaintiff also argues that she will miss at least a half day of work in order to attend the examination and “suffer the inconvenience and annoyance of having to travel a great distance” from San Mateo to Oakland (Opp’n., p. 5:1-5), but does not cite any statutory provisions that provide relief from the inconveniences described. Moreover, the Court notes that Plaintiff chose to file the instant lawsuit and such inconveniences are inherent in the litigation process.

Accordingly, Defendants’ motion to compel Plaintiff’s attendance at an IME with Dr. Atkin to address her neck and back injuries is GRANTED.

D. Plaintiff’s Request for Sanctions

Plaintiff requests monetary sanctions against Defendants in the amount of $925.00 under Code of Civil Procedure section 2025.450, subdivision (c)(1). (Opp’n., p. 5:12-16.)

First, Code of Civil Procedure section 2025.450, subdivision (c)(1) does not exist. Second, Code of Civil Procedure section 2025.450 generally pertains to deposition notices and motions to compel a deponent’s testimony or attendance, or the production of documents specified in the deposition notice. Since Defendants seek to compel a second IME with Dr. Atkin, not to compel attendance, testimony, or the production of documents in connection with a deposition notices, Code of Civil Procedure section 2025.45, subdivision (c)(1) is inapplicable in the instant case.

Accordingly, Plaintiff’s request for sanctions is DENIED.

Conclusion and Order

Defendants’ motion is GRANTED as follows, in accordance with the terms of the IME demand:

(1) Plaintiff shall submit to a physical examination of her hands, wrists, and all related musculoskeletal and neurological tissues and structures, which in the examining physician’s opinion, are related to her complaints, conditions, injuries, and pain. The physical examination shall not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examining physician, Dave Atkin, M.D., shall be permitted to ask, and Plaintiff shall answer to the best of her ability, questions that are relevant and will assist the physician in the evaluation of: the nature and extent of Plaintiff’s injuries to her neck and back; the prognosis and diagnosis of Plaintiff’s complaints regarding her neck and back; the reasonableness and necessity of past treatment for her neck and back condition; and the reasonableness and necessity of other procedures and the frequency and duration of the same.
(2)

(3) The physical examination shall take place on 5 June 2014, at 4:00 p.m., at the office of Dave Atkin, M.D., located at 411 30th Street, Suite 303, Oakland, CA, 94609.

Plaintiff’s request for monetary sanctions is DENIED.