Case Number: BC529091 Hearing Date: June 25, 2014 Dept: 92

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

ASHLIE WEINGARTEN, ET AL.,
Plaintiff(s),
vs.

CANYON TILE & STONE, INC., ET AL.,

Defendant(s).

CASE NO: BC529091

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL A SECOND IME OF PLAINTIFF

Dept. 92
1:30 p.m. — #32
June 25, 2014

Defendant, Canyon Tile & Stone, Inc.’s Motion to Compel Plaintiff to Attend a Second IME is Granted.

Plaintiff, Ashlie Weingarten filed this action against Defendants, Canyon Tile & Stone, Inc. and Agoura Tile & Stone, Inc. for damages arising out of injuries she sustained when several tiles at Defendant’s store fell on her, causing damage to her foot and wrist. Plaintiff, Barry Farbenbloom sues for loss of consortium.

Plaintiff contends she suffers from complex regional pain syndrome in her foot as a result of the accident. Defendant had a neurologist, Dr. Jeffrey Bounds, conduct an examination of Plaintiff to examine this condition. Defendant seeks, at this time, an order permitting a pain management specialist (Dr. Joshua Prager) to conduct an additional IME.

Defendant provides evidence that Plaintiff, at the time of trial, intends to call three different experts in connection with her CRPS – Drs. Okhovat (neurologist), Richeimaer (pain management specialist), and a third doctor, who is an orthopedist. Defendant argues that it is only fair that it be able to present defense expert testimony of both a neurologist and also a pain management specialist.

Plaintiff opposes the motion, arguing (a) the motion is not timely, (b) the examination will be duplicative, and (c) Dr. Bounds testified, in deposition, that he is as able to testify on the condition of CRPS as a pain management doctor.

Plaintiff’s first contention is that the motion is not timely. Plaintiff argues the motion was made past the discovery cut-off date. However, the parties’ stip and order to continue the trial date, filed on 3/12/14, makes clear that the trial date is continued to 8/05/14, with the discovery and motion cut-off dates to be based on the new trial date. This motion s therefore timely.

Plaintiff’s second contention is that the second examination will be duplicative of the first examination. 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).) Where a 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.)

Defendant’s moving papers adequately show, and Plaintiff does not dispute, that CRPS is a complex and difficult diagnosis, often made by doctors working in different fields. Defendant’s moving papers also adequately show, and Plaintiff does not dispute, that Plaintiff intends to call expert doctors in three fields to establish that she suffers from CRPS. Finally, Defendant establishes, and Plaintiff fails to dispute, that any given doctor attempting to evaluate a claim for CRPS must physically examine the patient, as the diagnosis cannot be made based on test results, review of medical records, etc. Defendant is entitled to present expert testimony to combat that given by Plaintiff’s experts.

Plaintiff’s third argument is that Dr. Bounds, Defendant’s neurological expert, testified at deposition that he is equally qualified as Plaintiff’s pain management specialist to testify concerning CRPS. This may be true. It does not, however, obviate the need for Defendant to be able to call a pain management expert to rebut the testimony of Plaintiff’s pain management expert.

Defendant made a sufficient showing of good cause to permit a second examination. Plaintiff failed to show a reason exists not to attend a second examination. The motion to compel is therefore granted. The parties are ordered to meet and confer to choose a date, time, and location for the examination.

Dated this 25th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court