Kim Levine et al vs Janet Berschneider et al
Case No: 17CV03278
Hearing Date: Fri Jun 01, 2018 9:30

Nature of Proceedings: Motion: Compel IME of Kim Levine and Santo Massine

TENTATIVE RULING: The Court will grant the motions, and will compel both Kim Levine and Santo Massime to submit to a defense medical examination to be performed by Jonathan Corren, M.D., on a date to be determined, not more than 90 days and not less than 30 days from the date of this hearing. The Court finds defendants’ request for sanctions to be unwarranted and inappropriate, and denies the request.

Background: Plaintiff Kim Levine, individually and as guardian ad litem for Santo Massine, brings this action against defendants Janet Berschneider, aka Jenna Berg, in her capacity as trustee of the Berg Family Trust, and Bungalow LLC. Plaintiffs began residing on the lower floor of property at 322 East Arrellaga Street in Santa Barbara on February 14, 2017. Plaintiffs allege that they suffered adverse health symptoms as a result of mold in the premises. The causes of action in the complaint are: 1) negligence (general, failure to disclose latent defect, per se, failure to perform covenant to repair); 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; 6) breach of contract. Berg and Bungalow filed a cross-complaint against Kim Levine for breach of contract, negligence, and fraud/intentional deceit.

Levine and her son, Santo, became sick during the time they occupied the first floor of the subject property, causing Santo to have to withdraw from school. Santo suffered from various symptoms (seizures, fever, fatigue, diarrhea, joint pain, swollen glands, and abdominal pain) originally thought to be due to mononucleosis, but which his doctor now has diagnosed as having been caused by toxic mold discovered between the first and second floors of the property.

Defendants deny that there was excessive mold in plaintiffs’ unit, and further contend there is no causal link between the alleged mold exposure and plaintiffs’ injuries. They served Demands for Independent Medical Examinations on both Levine and Santo, seeking to have both submit to an examination by Jonathan Corren, M.D., for a physical examination, history, skin prick allergy testing, standard allergy testing, pulmonary function testing, x-rays and blood testing.

Plaintiffs’ counsel responded to each demand, setting forth lengthy objections and conditions under which he would permit plaintiffs to be examined. Plaintiffs objected that the demand did not sufficiently detail the intended physical examination or limit it to the parts of the body placed in controversy, and did not specify the precise examinations to be conducted. Conditions placed on the examination by plaintiff’s counsel included that the examination be conducted only by the named doctor with no other person attending, be limited to plaintiffs’ present complaints, that plaintiff will not discuss the incident giving rise to the lawsuit except in general terms, that plaintiffs will not provide certain personal information (address, telephone number, medical insurance information, employment history except as to types of jobs and physical requirements, SSN, or prior injuries or accidents), that plaintiffs will not fill in any forms (intake forms, pain drawings, questionnaires, charts, new patient records, history forms, etc.), no questions not relevant to the physical examination (family medical history, personal history, marital status, use of drugs or alcohol, education, etc.), medical history except as to similar injuries to the same areas of the body, plaintiff shall have no financial responsibility (including for a missed appointment fee), no tests (such as x-rays, allergy testing, pulmonary testing, blood testing, diagnostic, or other intrusive or pain evocative tests), plaintiffs will leave the doctor’s office if the examination has not started within 30 minutes of the appointment time and the examination will be considered waived, plaintiff may reschedule the examination if the scheduled time is not convenient, plaintiff’s counsel or his representative and/or a court reporter will attend and record the examination, and plaintiffs demand all reports created as a result of the examination, and any later-received reports of any examinations.

By letter dated March 19, 2018, defense counsel responded to plaintiffs’ objections and demands, specifically contending that the demand sufficiently described the examinations to be performed, given the broad nature of the injuries claimed by plaintiffs. Counsel further objected generally to the “other objections” made by plaintiffs, contending that they are all improper. The only example set forth, however, was the condition that the examination be conducted solely by the named physician, contending that medical examinations may be conducted by persons working under the general direction of a licensed physician, particularly x-ray exams and lab tests. Counsel insisted that the examinations go forward as noticed, threatening a motion to compel seeking sanctions.

Plaintiffs responded by e-mail on March 29 that Santo Massine had undergone allergy testing on February 27 with Dr. Katz, which determined he was allergic to Aspergillius, penicillium, Cladosporium molds, and dust mites. The report was attached as a response to the meet and confer letter, so that Santo would not be required to undergo invasive, painful testing for a second time. Defense counsel responded the same day by stating that defendants had the right to conduct their own medical examinations of the plaintiffs, and asked plaintiffs to confirm that they would be attending the examinations on April 13.

Defense counsel sent a letter dated March 31, referencing plaintiffs’ counsel’s e-mail of March 30 (which is not before the court), which purportedly refused to comply with the examination demands on the basis that the tests were painful, protracted, and intrusive. Defendants contended that the tests to be conducted are not painful, protracted and intrusive. Defendants agreed to accept the recent x-rays that were taken and not require additional x-rays, provided the x-rays are produced to Dr. Corren prior to the examination, and they are clear, complete, and of good quality.

By e-mail on April 3, plaintiffs’ counsel agreed to produce Santo for an exam that complies with statutory and case law, but not for painful and invasive procedures of allergy skin prick tests and blood draws. On April 4, defendants responded that the allergy testing is directly relevant to the damages sought, and they were entitled to conduct it. They pointed to Santo’s June 2017 allergy tests which showed he had no sensitivity to molds at all, contrary to the February 2018 test. Because false positives and negatives can occur, and because they contended that the February tests were borderline, the additional tests are necessary. A different defense attorney chimed in via e-mail on the same date, demanding authority that allergy skin prick tests and blood draws are painful and invasive procedures, or defendants would move to compel the exams, including sanctions. In response, plaintiffs reiterated their previous response. Again, two different defense attorneys separately responded, the first noting the failure to provide authority about allergy skin prick tests and blood draws being painful and invasive or to confirm whether Levine will appear. The other counsel stated there is nothing in case law to suggest that the tests are not permitted because they are painful or invasive, and citing a case where blood testing was permitted. Counsel further cited cases in the criminal context regarding blood draws, which note that for most people the procedure involves virtually no risk, trauma or pain. Counsel further chided plaintiffs’ motives for Santo having voluntarily underwent allergy testing but refusing defendants’ medical examination.

Motions: Defendants on April 30, 2018, filed separate motions to compel the examinations of Santo Massime and Kim Levine. The motions seek to compel them to submit to examinations including physical examination, history, skin prick allergy testing, standard allergy testing, pulmonary function testing, x-rays (only as to Kim Levine) and blood testing, at a date between 30 and 90 days after the hearing. The motions are virtually identical. After setting forth the history of the dispute, defendants assert they are entitled to conduct the examinations, and that the right cannot be subverted by plaintiffs submitting themselves to their own testing. They assert that plaintiff has not provided authority to support that the procedures are painful, protracted, and intrusive, and contend that a court presumably has the power to order even painful and intrusive diagnostic tests and procedures. Defendants then assert they are entitled to sanctions, contending that plaintiffs’ refusal to submit to the examinations as they were noticed was in bad faith. They seek sanctions totaling $3,735, apportioned between the two motions.

The motions include the declaration of Jonathan Corren, M.D., which authenticates his c.v., and explains the skin prick testing process used to determine whether a patient is immunologically sensitive to specific substances. He explains that if the patient does not manifest a positive reaction to either a prick skin test of a blood test, the patient is not allergic to the substance and will not manifest allergic symptoms in response to the substance. The skin on a patient’s back is gently pricked with a specialized device containing a tiny amount of allergen extract. The allergy specialist will wait 15 minutes and check results. For purposes of these exams, the skin test panel will consist of approximately 30 allergens, including all of the most common molds. He declares that prick skin test causes minimal or no discomfort, which may last a few seconds, and no bleeding. If there is a positive result, there may be some itching at the site of the reaction. Rarely, a small amount of swelling or itching may occur a few hours after the test. The allergy blood test requires that a small needle be inserted into a vein in the patient’s forearm, after which 10-15 ml of blood will be collected for analysis of allergic antibodies. The puncture may occasionally cause a mild to moderate amount of discomfort with slight bleeding.

Plaintiffs have opposed the motions, contending that while they do not dispute defendants’ right to conduct a defense medical examination, they believe that the painful and intrusive nature of the skin-prick and blood draws are self-evident, despite defendant’s demands for case law to support the position, while failing to provide authority to support her own position. Plaintiffs assert that Cruz v. Superior Court (2004) 121 Cal.App.4th 646 [cited by defendants in meet and confer, but not in their motion], the court allowed blood testing because no evidence had been presented that the testing was painful, protracted, or intrusive, and because since the plaintiff had not provided defendant with a genetic sample (defendant’s theory was that plaintiff’s injuries had a genetic cause), there were no less intrusive means to test the theory. Plaintiffs further assert that the criminal cases cited by defendants are inappropriate in the civil discovery context.

Plaintiffs assert with respect to Santo Massine, that defendants have failed to show that the testing in necessary. Santo was allergy tested by Dr. Roger Katz on February 27, 2018, and determined to be allergic to Aspergillius, penicillium, and Cladosporium molds, all of which were present in the property during plaintiffs’ residence there. The test was so painful that Santo wept. Defendants claim that the fact that Santo submitted to the test to determine the extent of his allergies is proof that the testing is not painful, but just because he voluntarily submitted to a procedure to further his own recovery does not change the nature of the test. Further testing is unnecessary; plaintiff will not suddenly become non-susceptible to the allergens he tested positive to a few months ago. Defendants have not shown why the testing is medically necessary.

Plaintiffs contend that sanctions are unwarranted and they have not acted in bad faith, given the lack of statutory authority in the area, the self-evident intrusive and painful nature of the testing, defendant’s own failure to cite pertinent case law, and plaintiff Santo’s production of medical records to defendant.

Plaintiffs submit the declarations of Kim Levine, Dr. Roger Katz, and Dr. Robin Bernhoft. Ms. Levine’s declaration states that she accompanied Santo to the appointment with Dr. Katz, and that Santo was crying and exhibiting obvious pain and discomfort during the skin prick testing. Afterward, she orally confirmed with him that it had caused him pain and discomfort. Dr. Katz declared that he has performed skin prick allergy testing and blood testing thousands of times over more than 40 years, and that the tests are invasive of the subject’s body, and can cause pain and discomfort. He also describes the pulmonary test, which can take as long as 30 minutes, and can cause dizziness, shortness of breath, coughing, and asthma attacks. He has seen and treated Santo, and performed extensive testing, the results of which should be sufficient for any health care provider to understand the nature and extent of his allergenic sensitivities. He cannot think of any medical reason or necessity to perform any further allergy or pulmonary function testing. Dr. Bernhoft declared that she treated Ms. Levine and Santo on 8/9/17, during which a urine sample was obtained to be tested for the presence of mycotoxins, which are an indication of mold exposure, and attaches the mycotoxin panel report. She understands that Dr. Corren intends to collect a blood sample for analysis of allergic antibodies, but given the amount of time which has elapsed form the day Ms. Levine and Santo moved out of the property, and the fact that mycotoxins are removed from the body over time, she cannot think of any medical reason for performing blood allergy testing on either of them. According to the World Health Organization, more than ½ of subjects with allergic symptoms caused by mold, test negative for mold allergy. Drawing blood would be invasive and pointless.

In their reply, defendants reiterate their contention that the testing to be performed by Dr. Corren is necessary to adequately evaluate plaintiffs’ claims and assess their injuries. They further reiterate their contention that the prick skin test and blood draws are not painful, protracted or intrusive, and are commonly performed. Defendants disparage Dr. Katz, arguing that their counsel has past experience from him, where he has been found to manipulate testing outcomes to favor plaintiffs in mold cases. The provide excerpts from a past deposition of Dr. Katz, in which he states that he tests from all four manufacturers who produce molds for the prick skin tests, because each manufacturer has their own proprietary way of making the mold antigens, and they differ from patient to patient for sensitivity, with no standardization among manufactures. Sometimes a patient will react only to the mold from some manufacturers, but not all. Dr. Katz testified that those who rely upon only one mold manufacturer often make mistakes. Defendants characterize this testimony as establishing that Dr. Katz’s tests and reports are untrustworthy, and the result of manipulated tests. They also assert that June 2017 tests found Santo had no sensitivity to molds, but was sensitive to dust mites. Since both false positives and false negatives can occur in allergy tests, and since defendants contend that Dr. Katz’s tests are borderline, a medical exam is necessary.

ANALYSIS: For the reasons, and under the conditions, outlined below, the Court will grant the motions, and will compel both Kim Levine and Santo Massime to submit to a defense medical examination to be performed by Jonathan Corren, M.D., on a date to be determined, not more than 90 days and not less than 30 days from the date of this hearing. The Court finds defendants’ request for sanctions to be unwarranted and inappropriate, and denies the request.

Pursuant to Code of Civil Procedure section 2032.220(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 the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive, and if the examination is conducted within 75 miles of the examinee’s residence. Such an examination is sought by service of a demand which specifies the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty of the physician who will perform the examination. (Code Civ. Proc., § 2032.220, subd. (b).)

If a party wishes to obtain discovery by a physical examination other than that described in Section 2032.220, the party must obtain leave of court, after the filing of a motion which shows good cause for the examination. (Code Civ. Proc., §§ 2032.310, subd. (a), 2032.320, subd. (a).) The order granting leave to conduct such an examination must also 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. (Code Civ. Proc., § 2032.320, subd. (d).)

The parties dispute whether the tests to be performed are “painful, protracted, or intrusive,” apparently without clear recognition that the presence of any of those factors requires that the demand be sought in a different manner, upon different standards. Defendants present the declaration of Dr. Corren stating that the prick skin test causes minimal or no discomfort, and acknowledging that the puncture procedure for the allergy blood test causes mild to moderate discomfort, with some bleeding. The doctor’s characterization of the sensation as “discomfort” rather than “pain” is something of an artificial distinction, which this Court does not believe alters the analysis in any way. Plaintiffs, on the other hand, present evidence that Santo found the prick skin testing conducted by Dr. Katz to be painful, to the point where he wept during the testing. While defendants argue in response that the fact that Santo voluntarily went through the testing procedure with Dr. Katz was evidence that it was not painful, the assertion is, to be frank, ludicrous. As noted by plaintiffs in their opposition papers, the fact that a party seeks potentially painful medical treatment and evaluation in an attempt to further his or her own recovery does not in any way show that the treatment and evaluation is not, in fact, painful. The Court has no reason to doubt Santo’s experiences and perceptions of the prick skin testing, even in light of Dr. Corren’s declaration testimony that “minimal” discomfort may be experienced from the testing.

Given the acknowledged existence of the involvement of pain in the testing sought by defendants, Sections 2032.220(a) and 2032.310(a) require the conclusion that the testing can only be conducted by leave of court pursuant to Sections 2032.310, et seq., and not solely on a demand served by the opposing party pursuant to Sections 2032.220, et seq. As a result, defendants request for sanctions pursuant to Sections 2032.240(c) and 2032.250(a) based solely upon plaintiffs’ failure to submit to the testing upon service of a demand pursuant to Section 2032.220, is unwarranted and inappropriate under the terms of those sections, and the sanction request will be denied outright.

The finding that leave was required does not end the inquiry, since the current motion could also be interpreted to be a motion for leave to conduct the testing. A motion for leave to conduct an examination involving tests which are “painful, protracted, or intrusive,” can only be granted upon a showing of good cause. (Code Civ. Proc., § 2032.320, subd. (a).)

Facts before the Court on the issue of good cause include defense counsel’s declaration testimony that allergy testing conducted on Santo in 2017 showed no sensitivity to mold, in contrast to the 2018 testing conducted by Dr. Katz. Apparently, both false positives and false negatives can result from the testing, and Dr. Bernhoft has further provided declaration testimony that some patients show sensitivity to mold even though they test negative for mold allergy. Further, the interpretation of the results, in terms of the nature and scope of the examinee’s reactions to the skin pricks, would appear to the Court to be somewhat subjective in nature, which would shift the balance in favor of allowing further testing. Defendants also make claims that Dr. Katz’s testing is inherently suspect, contending that he has been found in the past to have admitted manipulating the testing. The Court has reviewed the deposition testimony of Dr. Katz proffered by defendant, and finds it far afield from any admission of manipulation. While the ultimate evaluation of his methods in this case will be up to the jury to decide, the Court sees nothing improper in Dr. Katz’s methods on their face.

While it is something of a close call, the Court will allow the testing to be conducted. The personal injury aspects of this case revolve around the injuries allegedly sustained by the plaintiffs because of their exposure to mold in the premises. Defendants should be permitted to fully evaluate the nature of the impacts of the mold at the premises upon the plaintiffs, and the inability to do so would impact their ability to defend against the action. While there is evidence that the testing to be performed may be painful, that pain is short-lived and is not severe.

The Court notes that defendants’ motion does not seek to have x-rays of Santo conducted, and the order permitting testing for Santo will not include any authorization for the performance of x-rays on him. The examining physician may take an oral medical history of each plaintiff, seeking the same information that he would seek in order to make an evaluation of his own patients who are seeking diagnosis and treatment for allergy issues, and including time periods both prior to and after the mold exposure incident at issue in this case. Diagnostic tests, including the blood draw and x-rays of Ms. Levine, may be conducted by trained professionals other than Dr. Corren, acting under his direction and supervision, in the same manner that those professionals would conduct the tests if the examinee were a patient of Dr. Corren’s.

As permitted by Code of Civil Procedure section 2032.510(a), plaintiffs’ attorney or his representative will be permitted to attend and observe the entirety of the examinations, and the examination may be recorded either stenographically or by audio technology. While videotaping of examinations is not statutorily authorized, the Court will permit the photographing of the test results and/or reactions on each examinee’s back, should plaintiffs choose to do so.

As provided in Section 2032.510(b), the observer may not participate in or disrupt the examination, but may suspend the examination under Section 2032.510(d) to allow a motion for protective order to be made, if the examiner becomes abusive or undertakes to engage in unauthorized diagnostic tests and procedures. Similarly, if the observer begins to participate in or disrupt the examination, the person conducting the examination may suspend the examination to enable the party seeking the examination to move for a protective order. (Code Civ. Proc., § 2032.510, subd. (e).) Should either of those circumstances occur, sanctions pursuant to Section 2032.510(f) will be in play against whichever party is unsuccessful in the resulting motion, so both parties’ representatives are cautioned to take special care to act professionally and within the bounds of these statutory provisions at all times.

Other issues can be addressed by the Court at the appropriate time, although no party will be allowed to refer to this or any other examination in front of the jury as an “independent” examination, or to the examining physician as in any way being “independent.”

Defense counsel shall prepare formal orders in conformity with this ruling, including that the examinations are being ordered pursuant to Section 2032.310, et seq., the limitations specified by the Court, and the denial of sanctions.