Michael Hines et al vs Nancy Hoolahan
Case No: 18CV00941
Hearing Date: Fri Mar 15, 2019 9:30

Nature of Proceedings: Motion to Compel IME’s

TENTATIVE RULING: Defendant’s motion to compel plaintiff Michael Hines to appear for an orthopedic IME with Dr. Cheung on or before March 29, 2019, is granted. Defendant’s motion to compel plaintiff Marlene Hines to appear for an orthopedic IME with Dr. Cheung on or before March 29, 2019, is granted. Defendant’s motion to compel plaintiff Michael Hines to appear for a neurological IME with Dr. Ludwig on or before April 25, 2019, is granted. Defendant is awarded monetary sanctions against plaintiffs and their attorneys, jointly and severally, in the sum of $3,800.00.

BACKGROUND:

This is an action for personal injuries stemming from an automobile versus two pedestrian accident. On January 23, 2017, at approximately 6:30 p.m., plaintiffs Michael Hines (“Michael”) and Marlene Hines (“Marlene”) were crossing the street within a marked crosswalk at the intersection of Victoria Street and Chapala Street in Santa Barbara when they were struck by a vehicle driven by defendant Nancy Hoolahan. Defendant was allegedly speeding and failed to yield the right-of-way to plaintiffs as she navigated a turn, in violation of Vehicle Code Section 21950. As a result of the incident, plaintiffs suffered physical injuries, medical and related expenses, and lost earnings, as well as general damages. On February 26, 2018, plaintiffs filed their complaint for general negligence and motor vehicle liability. Defendant answered the complaint with a general denial on April 10, 2018.

Michael and Marlene allege multiple orthopedic-related injuries to their neck, back, shoulders, arms, hips, knees, and legs as a result of the incident. In addition, Michael alleges that he suffered a traumatic brain injury (“TBI”) and has recurring headaches. In order to assess these claims, defendant served demands for independent medical examination (“IME”) on plaintiffs, one for Michael and one for Marlene, with the examinations to take place on January 23, 2019, at the offices of orthopedic surgeon Sunny Cheung, M.D., 3490 Linden Avenue, Suite 2, Long Beach, California 90807. Before defendant noticed the IME’s, plaintiffs had confirmed their availability for examination on January 23, 2019. Michael also agreed to make himself available for a neurological IME on February 7, 2019, with Barry Ludwig, M.D., a neurologist, at 100 Medical Plaza, Suite 425, Los Angeles, California 90095. On January 4, 2019, defendant served on Michael a formal IME demand in connection with his neurological examination.

Although Michael and Marlene both agreed to appear for their IME’s with Dr. Cheung, the day before the examinations, plaintiffs’ counsel abruptly objected to the IME’s, as well as to Michael’s IME with Dr. Ludwig. Neither plaintiff appeared for their examination with Dr. Cheung on January 23, 2019, and as a result, defendant incurred a non-appearance fee of $650.00 for each plaintiff ($1,300.00 total).

Defendant now moves the court for an order compelling Michael and Marlene to appear for orthopedic IME’s with Dr. Cheung, and for an order compelling Michael to appear for a neurological IME with Dr. Ludwig. Defendant also requests monetary sanctions against plaintiffs and their counsel.

ANALYSIS:

1. Motion to Compel Michael to Appear for Orthopedic IME

A defendant in a personal injury action is entitled as a matter of right to one IME of the plaintiff without leave of court, provided the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive and the examination is conducted at a location within 75 miles of the residence of the examinee. Code Civ. Proc. §2032.220, subd. (a). A defendant may make a demand for an IME after the defendant has been served or has appeared in the action, whichever occurs first. Code Civ. Proc. §2032.220, subd. (b). The demand 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. Code Civ. Proc. §2032.220, subd. (c). The IME shall be scheduled for a date that is at least 30 days after service of the demand. Code Civ. Proc. §2032.220, subd. (d).

If a defendant desires a second IME of the plaintiff, leave of court is required. Code Civ. Proc. §2032.310, subd. (a). A motion for a second IME 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 person or persons who will perform the examination and shall be accompanied by a meet and confer declaration. Code Civ. Proc. §2032.310, subd. (b). Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action. Code Civ. Proc. §2032.310, subd. (c). The court shall grant a motion for a second physical examination only upon a showing of good cause. Code Civ. Proc. §2032.320, subd. (a).

In this case, defendant is entitled to conduct discovery relative to Michael’s alleged injuries, including by way of an IME. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code Civ. Proc. §2017.010. For discovery purposes, the phrase “relevant to the subject matter” has been broadly construed to include any information that might assist a party in evaluating a case, preparing for trial, or facilitating settlement of the matter. Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546. The phrase “reasonably calculated to lead to the discovery of admissible evidence” has also been interpreted broadly and any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Colonial Life & Accident Insurance Company v. Superior Court (1982) 31 Cal.3d 785, 790.

Here, Michael alleges in his responses to interrogatories that he suffered injuries to his neck, back, shoulders, arms, hips, knees, and legs as a result of the incident and that the injuries are ongoing. (Sun Dec., ¶3, Ex. A.) After reviewing Michael’s discovery responses, defendant conferred with plaintiff’s counsel regarding the need to schedule an orthopedic IME of plaintiff by Sunny Cheung, M.D., a board-certified orthopedic surgeon. (Sun Dec., ¶5, Ex. B.) On January 2, 2019, plaintiff’s counsel confirmed that Michael would be available for examination by Dr. Cheung on January 23, 2019. (Sun Dec., ¶6, Ex. B.) Thereafter, on January 4, 2019, defendant served on Michael a demand for IME, with the examination to take place on January 23, 2019, before Dr. Cheung at his offices in Long Beach, California. (Sun Dec., ¶7, Ex. C.) Defendant did not receive any notification that Michael would not be attending his IME until January 22, 2019, the day before the examination, when plaintiff’s counsel emailed an objection to defendant, stating:

“Plaintiff will not submit to the demanded Defense Medical Examination . . . on January 23, 2019 at 2:00 p.m. with Dr. Cheung. . . . Plaintiff’s counsel will further meet and confer with defendant regarding said Medical Evaluation[].”

(Sun Dec., ¶9, Ex. E.)

Michael did not appear for his IME with Dr. Cheung. As a result, defendant incurred a non-appearance fee of $650.00. (Sun Dec., ¶10, Ex. F.)

Michael argues that the demand for IME with Dr. Cheung did not comply with Code of Civil Procedure Section 2032.220, subdivision (d), because it failed to schedule the examination date at least 30 days after service of the demand. Michael claims that he never stipulated to waiving the statutory notice period. However, the court finds that plaintiff waived the 30-day notice requirement. Before serving the demand, defendant conferred with plaintiff’s counsel, first in November and then in December 2018, regarding Michael’s availability, and on January 2, 2019, plaintiff’s counsel confirmed that Michael “was good to go” for examination on January 23, 2019. (Sun Dec., ¶6, Ex. B.) Relying on this representation, defendant served Michael on January 4, 2019 with a demand for IME, with the examination to be performed by Dr. Cheung on January 23, 2019. (Sun Dec., ¶7, Ex. C.)

Plaintiff further argues that his last minute objection to the IME and his failure to appear were due to the fact that on January 4, 2019, he was served with a second demand for IME, to be performed by Dr. Barry Ludwig, a neurologist, and on January 9, 2019, he was served with a third demand for IME, to be performed by Dr. Cary D. Alberstone, a neurosurgeon. Plaintiff claims that the IME demands were served in “blitz-style” fashion in an attempt to harass and annoy him. (Opp., p. 3:4-8.) However, plaintiff’s counsel specifically confirmed on January 2, 2019, in an email to defendant, that Michael would be available for an IME with Dr. Ludwig on February 7, 2019. (Sun Dec., ¶6, Ex. B.) Thus, Michael could not have been surprised when he was served with the demand for examination by Dr. Ludwig. With regard to the IME with Dr. Alberstone, if plaintiff truly believed the examination was cumulative or intended solely to harass or annoy him, his remedy was to object to the IME and/or seek a protective order, not fail to appear for his IME with Dr. Cheung.

Lastly, Michael complains that the demand for IME with Dr. Cheung was too general and failed to specify the “manner, conditions, scope, and nature of the examination,” as required under Code of Civil Procedure Section 2032.220, subdivision (c). The court disagrees. While the IME demand does not identify the specific parts of the body to be examined or the types of examinations to be conducted, it does state that the examination will be conducted by “Sunny Cheung, M.D., a Board-Certified Orthopedic Surgeon, who will examine plaintiff with regard to his complaints . . . arising as a result of the accident that gave rise to the instant lawsuit.” (Sun Dec., ¶7, Ex. C.) The court finds that this is sufficient notice as Michael broadly complains of injuries all over his body, including his neck, back, shoulders, arms, hips, knees, and legs as a result of the incident. (Sun Dec., ¶3, Ex. A.) Accordingly, the court will grant defendant’s motion to compel. Michael is ordered to appear for examination by Dr. Cheung on or before March 29, 2019, at Dr. Cheung’s offices in Long Beach.

Code of Civil Procedure Section 2032.240, subdivision (c), provides:

The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and 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.”

In addition, Code of Civil Procedure Section 2032.410 provides:

“If a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) . . . , but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . . In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction . . . .”

Despite having agreed to appear for an IME with Dr. Cheung on January 23, 2019, Michael failed to appear without legal justification, forcing defendant to incur a non-appearance fee of $650.00, plus attorney time preparing the current motion. Based on the non-appearance fee and defense counsel’s reasonable hourly rate of $160.00 per hour, plus the filing fee, defendant is awarded monetary sanctions in the amount of $2,070.00. (Sun Dec., ¶12.) The sanctions are awarded jointly and severally against Michael and his attorneys, B&D Law Group, APLC.

2. Motion to Compel Marlene to Appear for Orthopedic IME

This motion is identical to the motion directed against Michael and will be granted. Like Michael, Marlene alleges multiple, distinct types of orthopedic injuries in this matter, including to her neck, back, knees, hands, elbows, and right shoulder. (Sun Dec., ¶3, Ex. A.) Defendant met and conferred with plaintiff’s counsel to secure a date for an orthopedic IME with Dr. Cheung and Marlene agreed to appear on January 23, 2019. (Sun Dec., ¶6, Ex. B.) On January 4, 2019, defendant formally served Marlene with an IME demand pursuant to code. (Sun Dec., ¶7, Ex. C.) However, on January 22, 2019, the day before the IME, Marlene unilaterally cancelled the examination and failed to appear. (Sun Dec., ¶9, Ex. E.)

Plaintiff’s failure to appear for her IME caused defendant to incur a non-appearance fee of $650.00, plus attorney fees and filing fees in connection with the present motion. (Sun Dec., ¶¶ 10, 12, Ex. F.) Defendant is therefore awarded monetary sanctions against Marlene and her attorneys, B&D Law Group, APLC, jointly and severally, in the sum of $1,190.00 (same as against Michael, except for travel and appearance at the hearing on the motion, which would be duplicative).

Marlene is ordered to appear for examination by Dr. Cheung on or before March 29, 2019, at Dr. Cheung’s offices in Long Beach, California.

3. Motion to Compel Michael to Appear for Neurological IME

As discussed above, a defendant in a personal injury action is entitled to demand one physical examination of the plaintiff. Code Civ. Proc. §2032.220. However, multiple examinations will be permitted on a showing of good cause and when the plaintiff’s injuries are complex. Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255. Here, in addition to neck, back, knee, and leg pain, Michael alleges that he suffers from recurring headaches as a result of the subject incident. (Fresch Dec., ¶4, Ex. A.) A review of Michael’s medical records discloses that he was evaluated by both a neurologist and a neurosurgeon and was assessed with TBI secondary to the accident. (Ibid.) Because Michael has placed his neurological condition directly at issue, defendant must be allowed to conduct investigation and discovery by way of an additional IME to verify plaintiff’s claims.

Courts have consistently upheld multiple examinations by medical specialists in different fields when relevant to a plaintiff’s injuries. See, Edwards v. Superior Court (1976) 16 Cal.3d 905, 913 (trial court in personal injury action did not abuse its discretion in requiring the plaintiff to undergo a psychiatric examination by a defense psychiatrist, in addition to a physical examination, where the plaintiff alleged that she had sustained severe emotional injuries in the incident); Whitfield v. Superior Court (1966) 246 Cal.App.2d 81, 86 (where the plaintiff was injured while walking near a building being demolished by defendant wrecking company and the plaintiff alleged that emotional damage was a major issue, the order of the trial court requiring the plaintiff to undergo a second IME by the defendant’s psychiatrist was not an abuse of discretion); and Shapira v. Superior Court, supra, 224 Cal.App.3d 1249, 1255 (defendant’s previous request in dental malpractice action that the plaintiff undergo examination by a neuropsychologist did not preclude the plaintiff from being compelled to undergo a second examination by a defense psychiatrist upon a showing of good cause).

In December 2018, defendant conferred with plaintiff’s counsel regarding Michael’s availability for medical examinations. (Sun Dec., ¶2.) Defendant explained that, given his multiple complaints, Michael needed to be examined by both an orthopedist specializing in knee and spine injuries and a neurologist for his alleged head injury. (Fresch Dec., ¶6, Ex. B.) On January 2, 2019, defendant received confirmation from plaintiff’s counsel that Michael would be available for examination by Barry Ludwig, M.D., a board-certified neurologist, on February 7, 2019. (Sun Dec., ¶5, Ex. E.) Relying on this representation, defendant on January 4, 2019, served Michael with a demand for IME with Dr. Ludwig at his offices in Los Angeles. (Sun Dec., ¶6, Ex. F.) However, on January 22, 2019, plaintiff’s counsel, abruptly and without explanation, served an objection to the IME, stating that Michael would not appear for examination with Dr. Ludwig in February 7, 2019, and that the parties needed to “meet and confer.” (Fresch Dec., ¶8, Exs. H, I.)

Plaintiff again complains about the number of IME’s that have been scheduled in the case and points to the fact that on January 23, 2019, Michael was served with yet another IME demand, this time with Philip Stenquist, M.D., a board-certified neuropsychologist. (Alfaro Dec., ¶8, Ex. E.) In response, defendant argues that two neurological IME’s are needed regarding Michael’s TBI because a neurologist examines the physical injury to the brain whereas a neuropsychologist evaluates the symptoms a plaintiff may experience as a result of a TBI. (Fresch Dec., ¶14, Ex. O.) Regardless, if Michael believes that no good cause exists for a second neurological IME, or that it would be cumulative, he needs to object to the IME with Dr. Stenquist and force defendant to bring a motion to compel. However, the court finds that there is good cause for the IME with Dr. Ludwig since Michael alleges significant neurological injuries and that the injuries are “ongoing.” (Fresch Dec., ¶4, Ex. A.) The scope of the IME shall be limited to an examination and assessment of Michael’s neurological complaints, but may include his medical history. (Sun Dec., ¶6, Ex. F.)

Based on the foregoing, the court will grant defendant’s motion to compel Michael’s to appear for an IME with Dr. Ludwig. The IME shall take place on or before April 25, 2019, at Dr. Ludwig’s offices in Los Angeles. Defendant is awarded monetary sanctions in the amount of $540.00 for fees and costs associated with the filing of the present motion. (Sun Dec., ¶8.) The sanctions are awarded jointly and severally against plaintiff and his counsel.