On 28 February 2014, the motion of defendant Camden Minervino to Compel Medical Examination of Plaintiff was argued and submitted. Plaintiff Anna Polishchuk filed a formal opposition to the motion.

Statement of Facts

This personal injury action arises from an automobile-versus-bicycle accident that occurred on 7 May 2012, in Palo Alto, California. The accident occurred at a four-way stop intersection on the Stanford University (“Stanford”) campus and both the driver of the automobile, Camden Minervino (“Defendant”), and the rider of the bicycle, Anna Polishchuk (“Plaintiff”), were Stanford students at the time of the accident. On 30 October 2012, Plaintiff filed a complaint against Defendant in the San Francisco County Superior Court alleging that, as a result of Defendant’s negligence, she suffered a fractured clavicle, traumatic brain injury, and continues to suffer from residual problems with headaches, fatigue, and dizziness.

The San Francisco County Superior Court set a trial date for this case of 24 March 2014. On 3 November 2013, Defendant filed a motion to transfer venue and, on 27 November 2013, the San Francisco Superior Court transferred the case to Santa Clara County. The file was received and opened by the Court on 2 January 2014.

Discovery Dispute

In June 2013, defense counsel sent an email to Plaintiff’s counsel indicating that, given the nature of Plaintiff’s claim, Defendant needed Plaintiff to be evaluated by a medical doctor and a neuropsychologist. Because defense counsel knew that Plaintiff was away from Stanford for the summer in Eugene, Oregon, defense counsel proposed that the two exams occur in the fall when Plaintiff returned to school. Plaintiff’s counsel indicated that he would let defense counsel know when Plaintiff would be returning to California.

Defendant noticed the neuropsychological exam with Ralph Kiernan, Ph.D. for 16 September 2013. Defense counsel also emailed Plaintiff’s counsel and proposed that the medical exam with Peter Cassini, M.D., take place on 8 October 2013.

On 9 September 2013, Plaintiff’s counsel wrote to defense counsel objecting to the medical examination with Dr. Cassini. Plaintiff’s counsel explained that Dr. Cassini’s examination would constitute a second examination and was not permitted by the Code of Civil Procedure. Defense counsel responded the next day, asking Plaintiff’s counsel to reconsider. Defense counsel pointed out that Plaintiff’s damages relate to both cognitive and physical impairments warranting more than one examination. Plaintiff’s counsel disagreed, but did indicate that if defense counsel would agree to limit the scope of the second exam to Plaintiff’s headaches, as well as limiting the duration of the exam, Plaintiff would agree to the exam with Dr. Cassini.

The neuropsychological exam with Dr. Kiernan took place on 16 September 2013.

On 25 October 2013, defense counsel emailed Plaintiff’s counsel concerning the medical examination. The email stated, in relevant part, as follows:

I cannot agree that Cassini’s examination will be limited to headaches, or that there will be no overlap between his medical opinions and Dr. Kiernan’s neuropsych opinions. There are fundamental differences between the disciplines of medicine and neuropsychology – and both need to [be] consulted in this case before we can arrive at a complete evaluation of Plaintiff’s condition. (Decl. of Heaberlin, Ex. E.)

On 30 January 2014, the Court granted Defendant’s ex parte application for an order shortening time on Defendant’s motion to compel the medical examination of Plaintiff by Dr. Cassini. In accordance with the order shortening time, Defendant filed his motion to compel the medical examination on 30 January 2014. Plaintiff filed her opposition on 14 February 2014 and Defendant filed his reply on 21 February 2014.

Discussion

A. Defendant’s Motion to Compel Medical Examination

Defendant seeks an order compelling Plaintiff to submit to an independent medical examination with Dr. Cassini on the following terms: (1) the examination will occur within 21 days of the date of the Court’s order; (2) the examination will occur in Eugene, Oregon, or within 20 miles of Plaintiff’s present residence; and (3) the examination will be a standard neurological examination (including taking of history) will be limited to 90 minutes, and will not include any diagnostic test or procedure that is painful, protracted, or intrusive.

Plaintiff opposes the motion on three grounds. First, Plaintiff asserts that, since Defendant failed to serve a formal written demand for the examination with Dr. Cassini, Defendant has no statutory basis to file the motion presently before the Court. Second, Plaintiff asserts that discovery closes 24 February 2014 and that Defendant has not filed his motion to compel the examination in time to comply with that deadline. Finally, Plaintiff argues that, even if the Court disagrees with the procedural arguments, the second examination is duplicative, burdensome and harassing, and should therefore not be allowed.

1. Procedural Issues

a. Statutory Basis for the Motion

Defendant brings this motion pursuant to Code of Civil Procedure section 2032.310. That section requires parties seeking physical and mental examinations—other than those agreed to by the parties or provided for in section 2032.220 (which authorizes defendants to demand one physical examination in personal injury cases)—to seek leave from the court before conducting such examinations. (CCP, § 2032.310, subds. (a) and (b).)

Plaintiff argues that Defendant was required to demand the examination by Dr. Cassini under Code of Civil Procedure section 2032.220 prior to filing his motion to compel. According to Plaintiff, because Defendant failed to serve a formal demand under section 2032.220, he cannot now bring a motion to compel to compel compliance with the demand under section 2032.250, subdivision (a). The Court disagrees.

Section 2032.220, subdivision (a), governs physical examinations in personal injury cases. The section provides 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.” The section further provides that the “defendant shall serve a copy of the demand . . . on the plaintiff and on all other parties who have appeared in the action.” (CCP, § 2032.220, subd. (e).) Once the plaintiff has been served with the demand, section 2032.230 requires the plaintiff to serve a response. Section 2032.250 then authorizes the defendant to file a motion to compel the examination if the plaintiff refuses to attend the examination and the defendant believes the refusal is unwarranted.

Sections 2032.220, 2032.230, and 2032.250 apply only to physical examinations. The Code provides special procedures for mental examinations and examinations not otherwise covered by section 2032.220. Specifically, section 2032.310, subdivision (a), provides that, “[i]f any party desires to obtain discovery by a physical examination other than that described in [section 2032.220], or by a mental examination, the party shall obtain leave of court.” Section 2032.310, subdivision (b), authorizes parties to file a motion to compel these physical and mental examinations. There is nothing in the section that requires the moving party to have first served a demand for the examination. Indeed, the language of section 2032.310 suggests that the motion be filed first. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8I-12 [“This is the only procedure as to which a court order is still required before commencing discovery.”].)

The parties are inconsistent in the way in which they characterize the examination to be done by Dr. Cassini. For instance, Defendant begins his motion by characterizing the examination as physical in nature, but then goes on to indicate that portions of the examination my overlap with the examination conducted by Dr. Kiernan, which the parties seem to agree was a mental examination for the purposes of the Code. Similarly, Plaintiff argues that Defendant was required to demand the examination by Dr. Cassini under section 2032.220 (which only applies to physical examinations) and then goes on to argue that the examination should not be permitted because it is duplicative of the mental examination.

The Court finds that Dr. Cassini’s examination in not purely physical in nature. Dr. Cassini is a medical doctor who specializes in neurology and, while Defendant indicates that Dr. Cassini will be examining the physical manifestations of Plaintiff’s neurological injuries, e.g., headaches, dizziness, etc., given the similarities between neuropsychology and neurology, Defendant indicates that Dr. Cassini’s examination may overlap with Dr. Kiernan’s examination. Thus, because Dr. Cassini’s examination is not simply a defense physical as contemplated by section 2032.220, that section does not apply and Defendant was not required to demand the examination prior to filing the motion. Furthermore, even if the examination to be conducted by Dr. Cassini would be purely physical in nature, his examination will be the second examination of Plaintiff in this case and seeking leave from the Court for the examination would protect rather than frustrate Plaintiff’s right to privacy. (See Reuter v. Sup. Ct. (1979) 93 Cal.App.3d 332, 343 [noting that the notice and hearing requirements of section 2032.310 have been deemed by the California legislature as essential to protect against unreasonable examinations and to safeguard the examinee’s bodily and mental privacy].)

b. Timing of the Motion

Plaintiff argues that Defendant waited too long to bring his motion and that, because the parties’ deadline to complete discovery expired on 24 February 2014, there is insufficient time to conduct the examination before the close of discovery. Plaintiff’s argument on this issue is not well taken.

As indicated above, the San Francisco County Superior Court set a trial date for this case of 24 March 2014. Given that trial date, pursuant to Code of Civil Procedure section 2024.020, the deadline for the parties to complete discovery was 24 February 2014 and the deadline for the Court to hear motions on discovery matters is 9 March 2014. (Code of Civ. Proc. [“CCP”], 2024.020, subd. (a) [“any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action”].)

Defendant cites section 2024.050 in his notice of motion as one of the bases for relief. That section provides that, “[o]n motion of any party the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” (CCP, § 2024.050, subd. (a).) In exercising its discretion to grant or deny a motion under section 2024.050, the court must take into consideration any matter relevant to the leave requested, including, but not limited to the following factors:

(1) The necessity and the reasons for the discovery,

(2) The diligence or lack thereof of the party seeking the discovery,

(3) Any likelihood that permitting the discovery will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (CCP, § 2024.050, subd. (b)(1) – (4).)

Concerning these factors, Plaintiff’s primary argument is that Defendant did not act diligently in bringing the motion to compel a second examination. Assuming for the purposes of this decision that Defendant did not act diligently, for the reasons set forth below, the Court nonetheless finds that the factors weigh in favor of allowing Defendant to proceed with the second examination.

The trial date has been reset for 2 June 2014, and, at Plaintiff’s request, the deadline for the completion of expert witness discovery has been extended to 19 May 2014. Thus, there is little likelihood that permitting the discovery Defendant seeks will prevent the case from going to trial or otherwise interfere with the trial calendar. Similarly, because the trial date and expert witness completion dates have been moved, the Court finds that Plaintiff will not be prejudiced by allowing a second examination after the initial cutoff date for the completion of discovery.

Furthermore, the Court also finds that Defendant has demonstrated the necessity of the second examination. The discussion concerning the necessity of the examination coincides with the Court’s evaluation of whether Defendant has demonstrated good cause under section 2032.320, subdivision (a), and is discussed more fully below.

2. Legal Standard

As indicated above, except for defense physicals in personal injury cases and exams arranged by stipulation, a party seeking a physical or mental examination must obtain leave of court prior to the examination. (CCP, § 2032.310, subd. (a).) The motion seeking leave for the examination must 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. (CCP, § 2032.310, subd. (b).)

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP, § 2032.320, subd. (a).) This generally requires a showing both of (1) relevancy to the subject matter, and (2) specific facts justifying the discovery, i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. (See Vinson v. Sup. Ct. (1987) 43 Cal.3d 833, 840.)

3. Good Cause Analysis

Plaintiff asserts that the second medical examination is duplicative, burdensome, and harassing. Specifically, Plaintiff asserts that the second examination will be duplicative of Dr. Kiernan’s examination. Plaintiff asserts that, although Dr. Kiernan’s examination “was ostensibly a psychiatric examination,” he rendered medical opinions regarding Plaintiff’s vestibular condition in addition to Plaintiff’s brain injury. (Pl.’s Opp., pp. 4-5.) Based on this assertion, Plaintiff argues that there is not good cause for the second examination. For the reasons set forth below, the Court disagrees.

The first defense examination in this case occurred on 16 September 2013 and was conducted by Ralph Kiernan, Ph.D. Plaintiff has attached Dr. Kiernan’s report to her opposition to Defendant’s motion to compel. In his report, Dr. Kiernan indicates that Plaintiff was referred to him as part of this litigation for a neuropsychological evaluation. Plaintiff accurately points out that Dr. Kiernan touches on Plaintiff’s physical systems in his report. For instance, Dr. Kiernan states in his report that, “[b]ecause of her persistent problems with dizziness, focusing and fatigue, I used a structured interview to look more closely at vestibular system symptoms.” (Decl. of Shehadeh, Ex. A, p. 3.) Similarly, in the summary of Dr. Kiernan’s report, he states that “there is strong clinical evidence that [Plaintiff] also sustained vestibular system trauma.” (Id., p. 5.)

Based on Dr. Kiernan’s examination, Plaintiff argues that “Defendant has already retained neuropsych expert Raplh Kiernan Ph.D. who interviewed, examined and tested Plaintiff for four hours, . . . [and] [a] second and unlimited medical exam with neurologist Peter Cassini, M.D., who Defendant admits will opine as to these same issues, is duplicative, harassing and burdensome.” (Pl.’s Opp., p. 2, bolding and underlining in original.)

Defendant argues that, “[t]he fact that Drs. Kiernan (neuropsychologist) and Cassini (neurologist) both have ‘neuro’ in their clinical titles does not mean this is a duplicative exam.” (Def.’s Reply, p. 4.) As Defendant points out, Dr. Kiernan is not a medical doctor. He is a neuropsychologist. According to Defendant, Dr. Cassini’s examination is necessary to evaluate all of Plaintiff’s medical complaints – including headache, fatigue, sleeplessness, and dizziness. Defendant asserts that the fact that some of these complaints may implicate both the neuropsychology and neurologist spheres does not mean that good cause is absent for this exam.

The Court tentatively finds that Defendant has demonstrated good cause for the second examination. Defendant has asserted that Plaintiff’s claimed injuries are complex. Plaintiff does not argue to the contrary. Where a plaintiff’s injuries are complex, multiple exams may be necessary by specialists in different fields. (See Shapira v. Sup. Ct. (1990) 224 Cal.App.3d 1249, 1255 [vacating order of trial court denying defendant’s motion to compel examination by a psychiatrist after plaintiff has already been examined by a neurologist and neuropsychologist].) Perhaps more importantly, Dr. Kiernan’s report indicates that Plaintiff’s condition is improving and Plaintiff has asserted that her injuries are permanent. In such instances, good cause may be found for a second examination where the ongoing nature of the injuries is in dispute. (See Vinson, supra, 43 Cal.3d at 840-841; see also Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8I-16, 17.)

Because Dr. Cassini will be evaluating Plaintiff from a different clinical perspective than the previous examination conducted by Dr. Kiernan, and because the issue of whether Plaintiff’s injuries are permanent is in dispute, the Court finds that Defendant has tentatively demonstrated good cause for the second examination. The Court further finds that Defendant’s notice of the examination, which states that the examination will be conducted in Plaintiff’s home town of Eugene, Oregon, and be limited to 90 minutes, ameliorates Plaintiff’s concern that the second examination will be unduly burdensome or harassing. However, as discussed more fully below, because Defendant has failed to specify the procedures to be used during the examination, the Court will take the matter under review and require Defendant to supplement the record on this issue.

4. Failure to Specify Tests and Procedures

Plaintiff does not take issue with Defendant’s failure to specify the procedures to be used in the proposed examination. Because this failure frustrates the Court’s ability to issue a code-compliant order, however, the Court raises the issue on its own motion.

Section 2032.320 governs orders granting motions for physical and mental examinations authorized under section 2032.310. The section requires the court to set forth certain details of the examination in the order granting a motion for a physical or mental examination under section 2032.310:

An order granting a physical or mental examination shall 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. (CCP, § 2032.320, subd. (d), emphasis added.)

In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, the First District Court of Appeal had occasion to interpret section 2032.320, subdivision (d). The court held that the plain language of section 2032.320, subdivision (d), “is that the court is to describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed.” (Id., p. 260, emphasis in original.) The court went on to hold that, “[t]he way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Ibid., emphasis in original.) The court held that this requirement ensures that the trial court “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 or mental injury.” (Id., p. 261.)

Concerning the practical affect of section 2032.320, subdivision (d), the Carpenter court stated the following:

Insisting that section 2032.320 means what it says—that the diagnostic tests and procedures must be specified—will result in an orderly and efficient means of balancing the interests of the plaintiff and defendant. The defendant, aware that the court must name the diagnostic tests and procedures in the order granting a mental examination, will identify the potential tests and procedures in its moving papers. The plaintiff, assisted by counsel and a psychologist or other expert, may consider whether the proposed tests are inappropriate, irrelevant, or abusive, and submit evidence and argument to that effect if necessary. If the parties cannot agree on the specific tests that may be employed, the matter will be resolved by the court in deciding the defendant’s section 2032.310 motion. (Carpenter, supra, 141 Cal.App.4th at p. 267.)

The court also made clear in Carpenter that the failure to list the diagnostic tests or procedures in the trial court’s order is reversible error. (Carpenter, supra, 141 Cal.App.4th at p. 269.)

Defendant’s failure to list the procedures to be used in the proposed examination is fatal to his motion. Put simply, because Defendant did not list the names of all the tests or procedures to be used during the proposed exam, the Court cannot comply with the requirements of section 2032.320, subdivision (d), which requires the Court to specify (by name) the tests or procedures to be used during the examination.

However, given the time sensitive nature of the discovery in this case, and because the Court has tentatively found good cause for the examination, the Court will allow Defendant to supplement the record with the list of procedures to be used by Dr. Cassini during the proposed examination.

Conclusion and Order

Defendant’s motion to compel Plaintiff to submit to an independent medical examination by neurologist Peter Cassini, M.D., is CONTINUED to 14 March 2014 at 9:00 a.m. in this Department.

Defendant shall supplement the record with the list of procedures to be used by Dr. Cassini during the proposed examination of Plaintiff within 5 calendar days of the filing of this Order. Defendant shall serve the supplemental filing on Plaintiff and Plaintiff shall file a response, if any, within 5 days of the service of Defendant’s supplemental papers.