Case Number: BC517502 Hearing Date: February 23, 2018 Dept: J

Re: Sandra Vaughan v. Western Merchandise Express, Inc., et al. (BC517502 C/W BC524257 and BC532666)

MOTION FOR LEAVE TO CONDUCT ADDITIONAL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF SANDRA VAUGHAN

Moving Party: Defendants Western Merchandise Express, Inc. and Juan R. Carrasco

Respondent: Plaintiff Sandra Vaughan

POS: Moving OK; Opposing OK

Case No. BC 517502: Plaintiff Sandra Vaughan (“Vaughan”) seeks damages arising out of a 12/26/12 motor vehicle accident on State Route 71 in the City of Pomona (“subject accident”). The complaint was filed on 8/6/13. On 9/29/15, plaintiff filed an Amendment to Complaint, wherein she substituted WMX Logistics, Inc. (“WMX”) in for Doe 1.

Case No. BC 524257: Plaintiff Virginia Antonio (“Antonio”) is suing for damages arising out of the subject accident. The complaint was filed on 10/10/13. The First Amended Complaint (“FAC”) was filed on 12/20/13.

On 2/13/14, City of Pomona (“City”) filed its cross-complaint for Total EquitableIndemnity, Partial Equitable Indemnity, Declaratory Relief and Express Indemnification. On 6/13/14, Plaintiff dismissed City, without prejudice. On 3/21/16, plaintiff filed an Amendment to Complaint, wherein she substituted WMX in for Doe 1.

Case No. BC532666: Plaintiffs Joel Groskopf, Susan Groskopf and Kaylee Bayes, by and through her Guardian Ad Litem, Heather Bayes are suing for damages arising out of the subject accident. The Complaint, filed on January 8, 2014 against Defendants Western Merchandise Express, Inc. (“WM Express”), Juan R. Carrasco (“Carrasco”) and Doe 1-50, asserts a cause of action for Negligence.

On 6/30/14, Judge Patricia Nieto ordered Case No. BC524257 consolidated with Case Nos. BC517502 [i.e., case styled Vaughan v. Western Merchandise Express, Inc.] and BC532666 [i.e., styled Groskopf, et al. v. Western Merchandise Express, et al.] and designated Case No. BC517502 as the lead case.

On 3/21/16, Antonio filed an Amendment to Complaint, wherein she substituted WMX in for Doe 1.

On 6/17/16, this matter was transferred from Department 97 (personal injury hub) to this instant courtroom.

On 6/26/17, the court elected to treat WMX’s motions for summary judgment in connection with Vaughan’s complaint and Antonio’s FAC as motions for judgment on the pleadings and granted same, with 10 days’ leave given to both plaintiffs to amend.

On 7/3/17, Antonio filed her Second Amended Complaint (“SAC”) against Defendants WM Express, City, State of California, Carrasco and DOES 1-100, asserts causes of action for:

Dangerous Condition of Public Property

Negligence

Negligence Per Se

Negligent Hiring

Negligent Entrustment

Negligent Infliction of Emotional Distress

On 7/5/17, Vaughan filed her First Amended Complaint against Defendants WM Express, Carrasco and DOES 1-50 for Negligence. On 7/10/17, Vaughan filed an Amendment to Complaint, wherein she substituted the Greg and Sandra Montgomery Family Trust (“Montgomery Trust”) in for Doe 2. On 7/21/17, Antonio filed an Amendment to Complaint, wherein she substituted the Montgomery Trust in for Doe 2.

On 10/2/17, Antonio dismissed her punitive damages allegations against WM Express and Carrasco, without prejudice.

On 10/18/17, the court denied WMX’s ex parte application for an order permitting its motions for summary judgment on (1) Vaughan’s FAC and (2) Antonio’s SAC to be heard on 12/27, 12/28 or 12/19of 2017 or, alternatively, to be heard less than 30 days from trial and/or to continue trial.

The Final Status Conference is set for 6/8/18. A jury trial is set for 6/19/18.

Defendants Western Merchandise Express, Inc. and Juan R. Carrasco (“defendants”) move for an order, per CCP § 2032.310, allowing their retained neuropsychologist, Carlos F. Saucedo, Ph.D. (“Saucedo”), to conduct a neuropsychological examination of Plaintiff Sandra Vaughan (“plaintiff”). Defendants contend that good cause exists for this examination, because plaintiff has testified to having sustained cognitive injuries, including memory loss, depression, anxiety and vertigo. Defendants have already noticed and conducted a defense medical examination with their board-certified orthopedic surgeon. Defendants have apparently unsuccessfully attempted to meet and confer.

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1345 COMPLIANCE:

CRC Rule 3.1345(a)(6) requires a separate statement for a motion “[f]or medical examination over objection.” A separate statement was provided; however, it does not appear to address “any of Plaintiff’s fifteen objections stated in Plaintiff’s Objection to Defendant’s Amended Demand for Independent Medical Examination” referenced in ¶ 6 of defendants’ proposed order. Defendants, in fact, have not provided the court with plaintiff’s objection. The motion is denied, in part, on this basis.

“In any case in which a plaintiff is seeking recovery or 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 § 2032.220(a). “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.” CCP § 2032.220(b).

If a defendant wishes to obtain a further physical examination or any mental examination, the defendant must secure either a stipulation from plaintiff or obtain leave of court. CCP § 2032.310. “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.” CCP § 2032.310(b).

“The court shall grant a motion for a physical or mental examination under Section 2032.210 only for good cause shown.” CCP § 2032.320(a). “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(d).

“’Good cause’ may be found where plaintiff claims additional injuries, or that his or her condition is worsening; or even simply because of a 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).” Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1558 (emphasis omitted). “Where plaintiff’s injuries are complex, several exams may be necessary by specialists in different fields. There is no limit to the number of physical or mental exams that may be ordered on a showing of good cause. The good cause requirement checks any potential harassment of plaintiff.” Id. at ¶ 8:1558.5, citing Shapira v. Superior Court (Sylvestri) (1990) 224 Cal.App.3d 1249, 1255.

Defendants, moreover, have not adequately identified the diagnostic tests, procedures, conditions, scope of nature of the requested examination, either in their motion or in their proposed order. The motion, then, is further denied on this basis. Although Saucedo purports to provide a list of tests to be conducted, this list is negated by the following language in his declaration: “Attached hereto as Exhibit ‘H’ is a list of measures and tests that potentially may be performed during the examination, but I want to stress that I will not perform every test identified on the list. Also, depending on assessment need, I may select a non-checked test.” (Id., ¶ 5(c); emphasis added). The motion likewise provides that “[t]hese tests may include but are not limited to: Beck Anxiety Inventory, Beck Depression Inventory—II, Boston Naming Test, California Verbal Learning Test—II, Dot Counting Test, Grooved Pegboard, Letter Fluency, Millon Clinical Multiaxial Inventory—III, MMPI, ROWPVT—4th Ed., Ruff Figural Fluency Test, Semantic Fluency, Stroop Color-Word Test, TOPF, TOMM, Trail Making Test, VSVT, WAIS-IV, Wechsler Abbreviated Scale of Intelligence—II, Wisconsin Card Sorting Test, WMS-III, and Woodcock Johnson—III or IV.” (Motion, 4:22-5:2 and 9:5-12; emphasis added). The proposed order contains this identical language, in ¶ 4. The proposed order and motion also vaguely reference “such members of [Saucedo’s staff and technicians who are required to assist him.” (Motion, 4:8-9; Proposed Order, 2:10-11). These individuals must be specified. The proposed order also states, without providing any further identifying information, that “Dr. Enrique Lopez, Psy.D or other appropriate neuropsychologist will assist Dr. Saucedo by administering neuropsychological tests to Plaintiff.” (Proposed Order, ¶ 2).

The motion, then, is denied without prejudice.