2016-00196281-CU-PA

Tanya E. Schuhmeier vs. PackageOne, Inc.

Nature of Proceeding: Motion to Compel IME

Filed By: Menendez, Rebecca

Defendants PackageOne, Inc., Robert House, and Interstate Truck Centers, LLC dba Idealease of Stockton Motion to Compel IME exam on October 17 is denied.

Plaintiff alleges injuries arising out of a rear end automobile accident which occurred on June 25, 2014. Plaintiff states she suffers from headaches, head pain, blurred vision, nose pain, jaw pain, lower and upper back pain, leg pain, rib pain, and arm pain.

Although defendants have known for some time that plaintiff was planning to have surgery, they recently learned that plaintiff will be undergoing surgery (L4-5 laminotomy decompression foraminotomy ) at the end of October 2018. Defendants wish to examine plaintiff before the upcoming surgery to determine her baseline condition and symptoms prior to the surgery. Defendants requested of plaintiff’s counsel if the exam would be allowed but were informed on October 2, 2018 that they would not stipulate to the expedited Independent Medical Exam.

Code of Civil Procedure section 2032.310 states in relevant part:

(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.

Under Article 2, ordinarily an IME exam may be scheduled without court order if at least 30 days notice is provided. On motion of the party demanding the examination, the court may shorten this time. CCP 2032.320(d).

Defendants only description offered of the exam is to order plaintiff to appear in Oakland California to be examined by Dr. Rakesh Donthineni, a spine specialist on either October 17, 2018 at 4:00 pm or on October 23 at 3:30.

This description is insufficient to meet the requirements of subdivision (b), above, because it does not sufficiently specify the “manner, conditions, scope, and nature of the examination.”

The motion is denied on the additional ground that defendant has shown no good cause for an expedited IME exam on two weeks notice when it has known about plaintiff’s surgery for over 16 months. (see Decl. Stratte, p.2, ¶¶ 4, 5) Moreover defendant has shown no good cause why the IME exam must occur before the surgery rather than after the surgery. It is facile to merely state in conclusory fashion that a “baseline” is required or that there is “irreparable harm”; there is no evidence presented that a baseline is indeed necessary, or any factual showing of the alleged harm, or that the operating doctor could not opine as to a “baseline”.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.