Case Number: BC580672 Hearing Date: October 30, 2018 Dept: 4

Motion to Compel Additional Physical Examination

The court considered the moving, opposition, and reply papers.

BACKGROUND

On May 1, 2015, plaintiff Rachel A. Bowers filed a complaint for defendants Robert E. Novell and Sharon O. Novell for motor vehicle negligence based on an incident that occurred on May 14, 2013.

Trial is set for March 26, 2019.

LEGAL AUTHORITY

CCP § 2032.220(a) states: “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.”

CCP § 2032.310(a) states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination 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 person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”

CCP § 2032.320 states: “(a) The court shall grant a motion for a physical . . . examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical . . . 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.”

Good cause generally requires a showing both of relevancy to the subject matter and specific facts justifying discovery: i.e., allegations showing the need for the information sought and lack of means for obtaining it elsewhere. Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial, ¶ 8:1157. “’Good cause’ may be found where plaintiff claims additional injuries, or that his or her condition is worsening; or even simply because of lapse of time (e.g., if it has been 3 or 4 years since the first exam and plaintiff claims continued symptoms, another physical examination before trial may be proper).” Id., ¶ 8:1558.

DISCUSSION

Defendants request that the court compel plaintiff to appear for a second independent medical examination (“IME”) with neurologist Vernon Williams, M.D, on November 8, 2018.

Defendants contend that in June 2018, plaintiff disclosed in her supplemental discovery responses that she suffered injury to her head, neck, back, left arm, left shoulder, headaches, and other injuries. She indicated that pain remains depending on the weather and other factors. She testified that she has ongoing complaints of headaches. She also indicated that she has seen a neurosurgeon. In deposition, she testified that she would need a brachial plexus surgery on a

nerve on her back. She further testified that she intended to see additional doctors, including a neurologist.

In opposition, plaintiff argues that having her undergo two IMEs is excessive because her complaints can all be addressed by the orthopedic surgeon.

The court finds that defendants have shown good cause to conduct a second IME because plaintiff is claiming extensive and ongoing injuries, including ongoing headaches, which may not be able to be addressed during an orthopedic evaluation. Further, she has treated with a neurosurgeon.

The motion is therefore GRANTED.

The court orders that plaintiff submit to an independent medical examination on November 8, 2018, at 8:30 a.m., before neurologist Vernon Williams, M.D., at Cedars-Sinai Kerlan Jobe Institute, 6801 Park Terrace Dr., Los Angeles, 90045. The examining healthcare provider may ask, and plaintiff shall answer, questions relating to the nature and extent of the injuries alleged to have been sustained in the accident that is the subject matter of this action; present symptoms and conditions; medical history, including the manner in which the injuries were incurred; prior injuries and diseases, and treatment received for said injuries and diseases; and plaintiff’s occupational history.

The examining healthcare provider may use, and plaintiff shall cooperate in the use of, accepted diagnostic instruments, tests, manipulations, and techniques, that are deemed necessary by the healthcare provider to conduct a medical evaluation of those portions of plaintiff’s person which she had placed at issue herein by the allegations of injuries sustained as a result of the accident which is the subject of this litigation. The examination will include an evaluation of the motor system, observation of muscles, movement, strength, coordination, balance, and reflexes. Additional sensory tests may also be utilized during the examination. The examination will not include any diagnostic test or procedure that is protracted, painful, or intrusive.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: October 30, 2018

_____________________________

Christopher K. Lui

Judge of the Superior Court