Linea Polk et al vs David Gerrity et al
Case No: 18CV00938
Hearing Date: Wed Apr 03, 2019 9:30

Nature of Proceedings: Motions to Compel

TENTATIVE RULING: Defendant’s motion to compel IME of plaintiff Linea Polk and request for monetary sanctions in the amount of $1,270.00 is granted. Defendant’s motion to compel IME of plaintiff Shannon Polk is granted. Because Shannon’s Motion was largely duplicative of Linea’s, the Court will not award any additional sanctions.

BACKGROUND:

This is a mold contamination case. On January 1, 2013, plaintiff Linea Polk (“Linea”) and her daughter, plaintiff Shannon Polk (“Shannon”), began residing at 512 E. Victoria Street, Santa Barbara, California 93101 pursuant to a written lease agreement with defendant David W. Gerrity (“Gerrity”). Defendant Janette Smidt (“Smidt”) managed and supervised the property for Gerrity. In January 2017, defendants removed a portion of the roof of the unit to make repairs. Before the roof could be replaced, heavy rains caused water damage in the front of the unit. In June 2017, Linea advised Smidt that there was an odor of mold coming from her daughter Shannon’s bedroom. On August 29, 2017, and then again on September 27, 2017, Linea sent emails to Smidt, requesting that the mold issue be addressed.

Beginning in October 2017, Shannon developed painful and itchy rashes under her arms that then spread to other parts of her body. In November 2017, Shannon presented to the offices of Dr. Roger M. Katz for allergy testing. The testing revealed allergies due to mold. In January 2018, defendants hired a crew of workers to remove and remediate the mold contamination in the subject property. The crew worked in the bedroom, bathroom, and garage of the subject property for approximately two weeks, without any containment procedures or equipment. During that time, Shannon’s rash symptoms returned. On February 20, 2018, Dr. Robin Bernhoft diagnosed Linea with mycotoxin exposure caused by mold.

Plaintiffs filed their complaint on February 23, 2018, alleging causes of action against defendants for (1) negligence, (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. On May 7, 2018, Gerrity answered the complaint with a general denial. Smidt has since been dismissed from the case.

On January 14, 2019, Gerrity served separate demands for IME on plaintiffs 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 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 Linea Polk

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 with the request. 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 Linea. The demand indicated that the IME would be conducted by Jonathan Corren, M.D., a board certified internist and allergist, at 2320 Bath Street, Suite 303, Santa Barbara, California, and would consist of “oral medication history and diagnostic testing, including skin prick allergy testing, blood testing, and x-rays.” (Taylor Dec., ¶2, Ex. A.) The IME was scheduled for February 15, 2019. On February 1, 2019, Linea served her response and objections to the IME. (Taylor Dec., ¶3, Ex. B.) Linea’s response included numerous objections, but the principal objection was 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. 6:5-7.) The parties met and conferred in an attempt to address plaintiff’s objections, particularly her objection to the blood test and skin prick allergy test, but were unable to come to a resolution and on March 7, 2019, defendant filed his motion to compel, together with his request for sanctions.

Linea has clearly placed her physical condition at issue in the litigation, entitling defendant to an IME, as she alleges personal injuries resulting from alleged mold exposure at the dwelling she rented from defendant. (Comp., ¶32.) The sole issue, then, is whether Linea can be compelled to undergo a blood test and skin prick test as part of her medical examination by Dr. Corren. Dr. Corren indicates that such testing is necessary in order to determine the cause of plaintiff’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, foods, insect venoms, and medications.

“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 swelling 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.)

Plaintiff’s opposition includes a declaration by Dr. Robin Bernhoft. Dr. Bernhoft examined Linea on February 20, 2019, and during the examination plaintiff was subjected to a nasal swab, a stool test, and a blood test. (Bernhoft Dec., ¶1.) The tests confirmed the presence of mold and/or mold toxins in Linea’s body. (Ibid.) Dr. Bernhoft states that he 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.) Dr. Bernhoft states further that skin prick testing is only one of several medically approved testing methods that can be utilized to determine a person’s sensitivity to mycrotoxins and that other procedures include a nasal swab, a urine test, and a stool test. (Bernhoft Dec., ¶4.)

In cases such as this, where the cause and extent of plaintiff’s injuries are in question, defendant must be allowed to defend against the allegations by means of an IME. While Dr. Bernhoft believes that a blood test and a skin prick test are unnecessary, 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 plaintiff’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 as he specifically denies any causal link between the mold exposure and plaintiff’s alleged injuries.

Plaintiff 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.) Thus, defendant has provided sufficient information to determine the necessity of the tests being requested.

Plaintiff 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 clearly 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.) Plaintiff has not presented any evidence to the contrary, by declaration or otherwise. Accordingly, the court finds that the proposed testing is only minimally “painful, protracted, or intrusive” and not contrary to the requirements of Code of Civil Procedure Section 2032.220.

The case of Abex Corporation v. Superior Court (1989) 209 Cal.App.3d 755 is analogous to the present case. 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. Although 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.

Based on the foregoing, the court will grant defendant’s motion to compel Linea 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 plaintiff opposed defendant’s IME demand without legal justification and awards monetary sanctions to defendant in the amount of $1,270.00 for fees and costs incurred in bringing the motion. (Taylor Dec., ¶9.) The sanctions are awarded jointly and severally against Linea and her attorney.

2. Motion to Compel IME of Plaintiff Shannon Polk

For the same reasons set forth above, the court will grant defendant’s motion to compel Shannon to submit to an IME with Dr. Corren. In her opposition, plaintiff included a declaration from Dr. Roger M. Katz, a board certified immunologist, who states that he has already performed skin prick allergy testing and blood testing on Shannon to determine whether she is susceptible to certain allergens and that further testing is unnecessary. (Katz Dec., ¶¶ 2, 4.) However, Dr. Katz does not state whether he took photographs of the test results showing Shannon’s allergic reaction to certain allergens or whether the test results were preserved in any other way that would allow defendant’s medical expert to evaluate his findings and conclusions. For this reason alone, defendant’s IME demand is proper.

Shannon’s 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 Shannon’s Motion was largely duplicative of Linea’s, the Court will not award any additional sanctions