Case Number: BC662683 Hearing Date: July 23, 2018 Dept: 3

JESSICA TCHALAKIAN.;

Plaintiff,

vs.

ALFONSO RODRIGUEZ, ET AL.,

Defendants.

CASE NO: BC662683

[TENTATIVE] ORDER GRANTING MOTION TO COMPEL A SECOND INDEPENDENT MEDICAL EXAM

Dept. 3

1:30 p.m. — #

July 23, 2018

Background

The instant case arises from a slip and fall incident. Plaintiff Jessica Tchalakian filed this action against Defendants Alfonso Rodriguez and Lisa Rodriguez (collectively “Defendants”) alleging that on or about December 18, 2014, she tripped on electrical wiring on Defendants’ property because Defendants failed to maintain the property in a safe condition.

Plaintiff’s complaint alleges that as a result of the incident, she sustained injury to her nervous system and person, which have caused her great mental and physical pain, and pain and suffering. (Motion Exh. C.) Further, Plaintiff alleges that she will be permanently disabled. (Id.)

Through discovery, Plaintiff has alleged severe spine injury, arm injury, pinched nerve, inability to connect her pointer finger and thumb, and emotional pain and suffering, among other injuries. (See Motion Exhs. A and B.) Defendants provide that Plaintiff has sought care from a neurologist for her alleged injuries.

Defendants state that, given the severity of Plaintiff’s injuries and ongoing treatment, they sought to arrange a second independent medical evaluation for Plaintiff. (See Motion Exh. E.) However, Defendants provide that Plaintiff has not agreed to appear for a second independent medical evaluation. Defendants now move to compel Plaintiff to present herself for a second independent medical evaluation by Dr. George Chow, M.D, who is a neurologist.

Plaintiff, on the other hand, argues that Defendants’ motion should be denied because it was not timely served, a demand for a second medical evaluation was not served on Plaintiff, and Defendants have failed to show good cause as to why the second independent medical evaluation.

Legal Standard

Pursuant to CCP § 2032.220(a) “In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff.” Pursuant to CCP § 2032.220(b), this demand may be made “without leave of court.” If a defendant desires more than one physical examination of the plaintiff, “the party shall obtain leave of court.” (CCP § 2032.310(a).) Such a motion shall be granted “only for good cause shown.” (CCP § 2032.320(a).)

A court order for physical or mental examination must be based on a showing of “good cause.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) A showing of “good cause” is denied as s requiring that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Id.) The purpose is to protect an examinee’s privacy by preventing annoying “fishing expeditions.” (Id.)

Where plaintiff’s injuries are complex, several exams may be necessary by specialists in different fields. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. (Id.) The good cause requirement checks any potential harassment of plaintiff. (Id.)

Meet and Confer

A motion pursuant to CCP § 2032.310(a) must be accompanied by a meet and confer declaration under § 2016.040.

Here, Defendants’ counsel provides that he has engaged in several phone calls regarding a second independent medical evaluation for Plaintiff. (Motion Ruedaflores Decl. ¶ 9.) This is sufficient to satisfy the meet and confer requirement of CCP § 2032.310(b).

Discussion

First, as to Plaintiff’s argument that Defendants’ motion was untimely filed, the Court notes that Defendants’ ex parte application to shorten the time for the hearing on the instant motion was granted on July 11, 2018. The Court found that Defendants’ motion could be heard on the already reserved date of July 23, 2018. Thus, Plaintiff’s argument that the instant motion was untimely filed is moot.

Second, Defendants contend that Plaintiff’s complaint and discovery responses clearly put the alleged injuries to her nervous system in controversy. Further, Defendants argue that given the severity of Plaintiff’s alleged neurological symptoms and treatment, an examination by a licensed neurologist is required to protect their right to a fair trial. In addition, Defendants contend there is good cause to compel a second independent medical evaluation in order to test and evaluate the trust of Plaintiff’s allegations and injuries.

In opposition, Plaintiff contends that Defendants did not serve a demand for a second medical examination pursuant to CCP § 2032.220 on her. Plaintiff contends that she did not receive the demand attached as Exhibit E to Defendants’ motion, and notes that the proof of service attached to the exhibit is unsigned. The cited statute applies when only one demand is made, which does not require a court order. Section 2032.310 does not require service of a demand before moving for a second IME.

Good Cause

Plaintiff further argues that there is not good cause for a second medical examination because the injuries that Plaintiff has are not complex in nature, and Plaintiff has already agreed to be examined by an orthopedic surgeon chosen by the defense, Dr. Ronald Kvitine, M.D. Plaintiff provides that her examination with Dr. Kvitine was scheduled for July 13, 2018, and that at the time the instant motion was filed the examination had yet to be completed and no report had been provided. Plaintiff argues, thus, that the motion to compel a second medical examination is premature as Dr. Kvitine has not opined that Plaintiff has suffered complex neurological disorders that are beyond his expertise and that a second examination is necessary.

There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause. (See Shapira, 224 Cal.App.3d at 1255.) In this case, Plaintiff has herself indicated a wide range of symptoms that raise both orthopedic and neurological concerns. Given Plaintiff’s pleadings and discovery responses, Plaintiff has directly placed her neurological condition in controversy and has been evaluated by other neurologists for her alleged injuries. Plaintiff will have an advantage in relying on medical records or expert testimony from a range of doctors who have examined the full breadth of her injuries. The Court cannot simultaneously limit Defendants from having access to similar evidence. Furthermore, because Plaintiff herself raises both orthopedic and neurological concerns, the Court does not find that Plaintiff’s first medical examination by Dr. Kvitine must be completed first before she can be ordered to appear for a second examination. Thus, there is good cause for compelling Plaintiff to comply with the subject demand.

Conclusion

Defendants’ motion to compel a second independent medical examinations is GRANTED. The time and place and the nature and scope of the exam shall be as specified in the notice of motion and Conclusion of the moving points and authorities.

Defendants are ordered to provide notice of this ruling.