This case was last updated from Los Angeles County Superior Courts on 06/17/2019 at 19:14:35 (UTC).

JENNIFER L SHANNON-YEGANHE VS CEDARS-SINAI MEDICAL CENTER ET

Case Summary

On 08/21/2013 JENNIFER L SHANNON-YEGANHE filed a Personal Injury - Motor Vehicle lawsuit against CEDARS-SINAI MEDICAL CENTER ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIA WEINBACH, DALILA CORRAL LYONS, KEVIN C. BRAZILE and HELEN I. BENDIX. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8996

  • Filing Date:

    08/21/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIA WEINBACH

DALILA CORRAL LYONS

KEVIN C. BRAZILE

HELEN I. BENDIX

 

Party Details

Plaintiffs and Petitioners

SHANNON-YEGANHE JENNIFER L.

YEGANHE JENNIFER

Defendants

ANAND NEEL M.D.

BARON ELI M.D.

CEDARS-SINAI MEDICAL CENTER

DOES 1 TO 100

KAHWATY SHEILA M. P.A.

LOWEY JOSEPH M.D.

PHILLIPS THOMAS J. M.D.

TERNIAN ALEN M.D.

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ERIC NORDSKOG

GETZELS MORRIS

PALLER BRUCE B.

MORRIS S. GETZELS LAW OFFICE

ERIC NORDSKOG ATTORNEY AT LAW

BRUCE B. PALLER ATTORNEY AT LAW

GETZELS MORRIS STEVEN

Defendant Attorneys

MOORE WINTER MCLENNAN LLP

LA FOLLETTE JOHNSON DE HAAS ET AL.

LEWIS BRISBOIS BISGAARD & SMITH LLP

AL. LA FOLLETTE JOHNSON DE HAAS ET

HEDRICK KRISTI KELLY

DEHAAS LOUIS HENRY JR

MOORE RAYMOND ROBERT

 

Court Documents

Opposition - OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR SANCTIONS

9/23/2019: Opposition - OPPOSITION TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR SANCTIONS

Reply - REPLY PLAINTIFF JENNIFER SHANNON-YEGANHE'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES AND REQUEST FOR

9/27/2019: Reply - REPLY PLAINTIFF JENNIFER SHANNON-YEGANHE'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES AND REQUEST FOR

Memorandum of Points & Authorities

1/14/2020: Memorandum of Points & Authorities

Declaration - DECLARATION MEET AND CONFER DECLARATION OF MORRIS S. GETZELS IN SUPPORT OF PLAINTIFF'S MOTION FOR AN ORDER TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S CONTENTION INTERROGATORY NO. 12, AND

1/30/2020: Declaration - DECLARATION MEET AND CONFER DECLARATION OF MORRIS S. GETZELS IN SUPPORT OF PLAINTIFF'S MOTION FOR AN ORDER TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S CONTENTION INTERROGATORY NO. 12, AND

Ex Parte Application - EX PARTE APPLICATION PLAINTIFF JENNIFER SHANNON-YEGANHE'S EX PARTE APPLICATION FOR IME ACCOMMODATIONS

3/16/2020: Ex Parte Application - EX PARTE APPLICATION PLAINTIFF JENNIFER SHANNON-YEGANHE'S EX PARTE APPLICATION FOR IME ACCOMMODATIONS

Declaration in Support of Ex Parte Application

3/16/2020: Declaration in Support of Ex Parte Application

Opposition - OPPOSITION TO PL'S EX PARTE APP RE IME ACCOMMODATIONS

3/20/2020: Opposition - OPPOSITION TO PL'S EX PARTE APP RE IME ACCOMMODATIONS

Notice - NOTICE OF CONTINUANCE OF CSMC'S MOTIONS TO COMPEL

3/20/2020: Notice - NOTICE OF CONTINUANCE OF CSMC'S MOTIONS TO COMPEL

SUBSTITUTION OF ATTORNEY -

2/24/2014: SUBSTITUTION OF ATTORNEY -

SEPARATE STATEMENT OF `UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANT, ALEN TERNIAN, M.D.

3/24/2014: SEPARATE STATEMENT OF `UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OF DEFENDANT, ALEN TERNIAN, M.D.

W ORDER ON COURT FEE WAIVER

5/16/2014: W ORDER ON COURT FEE WAIVER

SUBSTITUTION OF ATTORNEY -

5/23/2014: SUBSTITUTION OF ATTORNEY -

NOTICE OF RULING RE: MULTIPLE MOTIONS TO COMPEL AND REQUESTS FOR SANCTIONS

8/14/2014: NOTICE OF RULING RE: MULTIPLE MOTIONS TO COMPEL AND REQUESTS FOR SANCTIONS

ALEN TERNIAN, M.D.'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO SET ASIDE ALEN TERNIAN, M.D.'S MOTION FOR SUMMARY JUDGMENT; DECLARATION OF ARTHUR E. ZITSOW; EXIIIBITS

12/23/2014: ALEN TERNIAN, M.D.'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO SET ASIDE ALEN TERNIAN, M.D.'S MOTION FOR SUMMARY JUDGMENT; DECLARATION OF ARTHUR E. ZITSOW; EXIIIBITS

NOTICE OF ERRATA IN AMENDED SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT SUMMARY JUDGMENTS

1/16/2015: NOTICE OF ERRATA IN AMENDED SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DEFAULT SUMMARY JUDGMENTS

NOTICE OF CHANGE OF ADDRESS

1/26/2015: NOTICE OF CHANGE OF ADDRESS

NOTICE OF CONTINUANCE OF HEARING OF MOTION OF DEFENDANT CEDARS-SINAI MEDICAL CENTER TO COMPEL RE DISCOVERY;

2/19/2015: NOTICE OF CONTINUANCE OF HEARING OF MOTION OF DEFENDANT CEDARS-SINAI MEDICAL CENTER TO COMPEL RE DISCOVERY;

NOTICE OF ENTRY, OF MINUTE ORDER REGARDING SIGNED JUDGMENT IN FAVOR OF ALEN TERNIAN, M.D.

12/3/2015: NOTICE OF ENTRY, OF MINUTE ORDER REGARDING SIGNED JUDGMENT IN FAVOR OF ALEN TERNIAN, M.D.

441 More Documents Available

 

Docket Entries

  • 12/28/2020
  • Hearing12/28/2020 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

    Read MoreRead Less
  • 12/18/2020
  • Hearing12/18/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

    Read MoreRead Less
  • 06/01/2020
  • Hearing06/01/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

    Read MoreRead Less
  • 04/24/2020
  • Hearing04/24/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

    Read MoreRead Less
  • 04/24/2020
  • Hearing04/24/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

    Read MoreRead Less
  • 04/24/2020
  • Hearing04/24/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

    Read MoreRead Less
  • 04/24/2020
  • Hearing04/24/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

    Read MoreRead Less
  • 04/03/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 03/23/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") (To Appear for Further Deposition Exceeding 7 Hours of Testimony and Request for Monetary Sanctions) - Not Held - Rescheduled by Court

    Read MoreRead Less
  • 03/23/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Further Discovery Responses (To Amended and Supplemented Responses to demand for Production of Documents, Set Two and Request for Monetary Sanctions) - Not Held - Rescheduled by Court

    Read MoreRead Less
784 More Docket Entries
  • 11/01/2013
  • DocketANSWER OF DEFENDANT CEDARS-SINAI MEDICAL CENTER TO PLAINTIFFS COMPLAINT AND JURY DEMAND

    Read MoreRead Less
  • 11/01/2013
  • DocketCIVIL DEPOSIT

    Read MoreRead Less
  • 11/01/2013
  • DocketREQUEST FOR JUDICIAL NOTICE BY ALEN TERNIAN, M.D.

    Read MoreRead Less
  • 10/30/2013
  • DocketANSWER TO COMPLAINT

    Read MoreRead Less
  • 10/30/2013
  • DocketDEMAND FOR JURY TRIAL

    Read MoreRead Less
  • 10/30/2013
  • DocketDemand for Jury Trial; Filed by Eli, M.D. Baron (Defendant)

    Read MoreRead Less
  • 10/30/2013
  • DocketAnswer; Filed by Eli, M.D. Baron (Defendant)

    Read MoreRead Less
  • 08/21/2013
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 08/21/2013
  • DocketComplaint; Filed by Jennifer L. Shannon-Yeganhe (Plaintiff)

    Read MoreRead Less
  • 08/21/2013
  • DocketSUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC518996    Hearing Date: February 24, 2020    Dept: 47

Jennifer L. Shannon-Yeganhe aka Jennifer Yeganhe v. Cedars Sinai Medical Center, et al.

 

MOTION TO COMPEL INDEPENDENT PHYSICAL EXAMINATION

OF PLAINTIFF

MOVING PARTY: Defendant Cedars-Sinai Medical Center

RESPONDING PARTY(S): Plaintiff Jennifer Shannon-Yeganhe

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a medical malpractice action in which Plaintiff alleges that Defendants were negligent in providing medical care during a cervical fusion surgery in which she went into anaphylactic shock that resulted in brain injury and other physical and emotional injuries.

Defendant Cedars-Sinai Medical Center moves to compel an independent medical exam of Plaintiff.

TENTATIVE RULING:

Defendant Cedars-Sinai Medical Center’s motion to compel independent physical examination of Plaintiff is GRANTED. The Court will permit Dr. Amos to examine Plaintiff at the Office of Edwin C. Amos, M.D., 2021 Santa Monica Blvd., Suite 525E, Santa Monica, California 90404, on March 18, 2020 at 8:30 a.m. The testing it to be limited to the scope of Attachment A to Defendant’s second amended notice and is to be no more than four (4) hours in duration.

DISCUSSION:

Motion To Compel Independent Medical Examination

Defendant Cedars-Sinai Medical Center moves to compel Plaintiff’s independent medical examination.

“In Controversy” Requirement

Any party may obtain discovery by means of a physical examination of a party in an action in which the physical condition of that party is “in controversy in the action.” (CCP § 2032.020(a).)

Here, Plaintiff’s current physical condition is “in controversy.” Plaintiff alleges that she suffered “anoxic brain injury secondary to intraoperative hypotension.” (Complaint, at p. 4.) She also alleges that she “was physically and emotionally injured and incurred and will continue to incur medical and economic damages as well as general damages.” (Ibid. (bold emphasis added).) In addition, in response to a form interrogatory asking her to identify her alleged injuries, Plaintiff answered “[a]noxic brain injury secondary to intraoperative hypotension, cognitive disfunction.” (Declaration of Natasha Covarrubias ¶ 4 & Exh. A.) In her response to Defendant’s demand for the IME, Plaintiff also asserted that her injury is “physical” and that she “has cognitive loss because of the physical injury.” (Id. ¶ 7 & Exh. C (bold emphasis added).) As such, her continuing physical condition is “in controversy” in this action, and Defendant may conduct a physical examination of Plaintiff, if the other statutory requirements are met. (CCP § 2032.020(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

Procedural Requirements

Meet and Confer Requirement

The Declaration of Natasha Covarrubias indicates that the meet-and-confer requirement of CCP § 2032.250(a) has been met.

Licensed Physician

A physical examination “shall be performed only by a licensed physician or other appropriate licensed health care practitioner.” (CCP § 2032.020(b).) Here, the demand for IME indicates that the examination would be performed by Edwin C. Amos, M.D. Thus, this requirement is met.

Intrusiveness and Distance

In any case in which a plaintiff “is seeking recovery for personal injuries,” as in this case, “any defendant may demand one physical examination of the plaintiff,” if (1) the “examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive,” and (2) the “examination is conducted at a location within 75 miles of the residence of the examinee.” (CCP § 2032.220(a).)

As to the first requirement, Plaintiff argues that SPECT SCANS would be “painful, protracted, and intrusive.” Defendant’s demand does not, however, indicate that SPECT SCANS would be performed, and Defendant has now affirmatively represented that “no SPECT scans are being requested, or will be performed by Dr. Amos.” (Defendant’s Reply, at p. 3.) Of course, the fact that it was impossible to tell whether the physician would be performing SPECT SCANS presents another problem: Defendant did not specify the tests to be performed. Therefore, it is unclear whether this requirement is met, as Plaintiff has not had an opportunity to object to the actual tests to be performed on this basis, as opposed to the type of test Plaintiff guessed would be performed. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 263 [interpreting the statute to require specific tests to be specified to ensure that “the court has considered any objections to the tests and provides the examiner clear parameters for the examination” (bold emphasis added)].)

As to the second requirement, the examination would take place at 2021 Santa Monica Blvd., Suite 525E, Santa Monica, California, 90404. This is within 75 miles of Plaintiff’s residence according to court records. Thus, the second requirement is met.

In sum, because Defendant has not specified the tests or procedures to be performed, it is impossible for the Court (or Plaintiff) to determine whether the examination would include any tests or procedures that are “painful, protracted, or intrusive.” For that reason, the motion must be denied. Because Defendant may choose to bring this type of motion again, however, the Court will consider whether the other requirements for an IME were met.

At the previous hearing on this motion, Defendant represented that it had cured the issues addressed in the tentative, including this one. Defendant’s supplemental briefing does not demonstrate that this issue has been cured.

As noted in the original tentative, the tests to be performed must be specified in the notice, to ensure that the Court has “considered any objections to the tests.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 263. Here, Defendant’s second amended notice now meets that requirement by explicitly limiting the “scope of the Neurological Examination” to an attachment that describes the proposed tests. (Supp. Declaration of Natasha Covarrubias, Exh. C.) Although Defendant’s statement in its brief that the tests would “include” but not be “limited to” these tests muddies the waters, the notice itself does not contain this type of expansive statement. The procedures described in Attachment “A” to the notice are sometimes described as “including” particular tests, but the descriptions of the categories of examination are sufficiently detailed to determine the types of tests contemplated, as required. (Cf. Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 267 [noting, in the context of statutory interpretation, that the phrase “including but not limited to” is not a “grant of carte blanche that permits all actions without restriction”].)

Plaintiff argues that the proposed tests are irrelevant to her claimed brain injuries. Plaintiff’s complaint, however, is not so limited. Plaintiff alleges that she was “physically . . . injured,” and in discovery responses she has stated that she suffered “cognitive dysfunction” as a result. (Declaration of Natasha Covarrubias, Exh. A.). Defendant is therefore entitled to discover the scope of this cognitive dysfunction through testing of Plaintiff’s motor functioning and other aspects of cognitive impairment.

Plaintiff does not appear to object to any of the particular tests named in the attachment as “painful” or “intrusive.” As to whether they are “protracted,” the attachment does not indicate how long the tests described would take, and it does not appear that Defendant has provided any outer limit. To the extent that the other requirements discussed below are met, the Court will permit testing of no more than four hours within the scope of Attachment A to the second amended notice.

Time, Place, Manner, Conditions, Scope, Nature, Identity, and Specialty

A demand for a physical examination “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 physician who will perform the examination.” (CCP § 2032.220(c).)

Beginning at the end of this list, Defendant’s demand did state the identity (Edwin C. Amos, M.D.) and specialty (neurology) of the physician who will perform the examination. Returning to the beginning of the list, the demand specified the starting time (8:30 a.m.) and place (2021 Santa Monica Boulevard, Suite 525E, Santa Monica, CA 90404) of the examination.

As to the “manner, conditions, scope, and nature of the examination,” however, the demand falls short. As to those topics, the demand states the following:

The examination will be for the purpose of determining, evaluating and assessing Plaintiff’s medical, mental and emotional condition,[1] claims of injury, residual complaints, damage and causation issues, and to prepare for testimony in the above-captioned matter. All conditions and injuries placed at issue by Plaintiff, and all claims of continuing, ongoing or permanent problems will be within the scope of the examination, along with claims for future care and/or treatment.

The examination will be consistent with other neurology practitioners in Southern California and consultations in connection with such practices. It will consist of procedures and tests routinely used by physicians examining patients for conditions such as those alleged by Plaintiff in the above captioned action, none of which is painful, protracted, intrusive, or substantially different in kind and character from those utilized by Plaintiff’s own physicians. It will include taking a medical history of the Plaintiff, a physical and mental examination of the Plaintiff, and a routine work-up and examination of the complaints and allegations made by Plaintiff in this lawsuit.

(Demand, at p. 2.)

As discussed above, the amended notice now meets the requirement to “provide[] the examiner clear parameters for the examination.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 263.)

Accordingly, the Court finds that the Defendant’s notice for the proposed examination by Dr. Amos is sufficient, with the addition of the outer limit of four hours discussed above.

Timing and Service

The examination must be scheduled at least 30 days after the service of the demand. (CCP § 2032.220(d). The demand must be served on the “plaintiff and on all other parties who have appeared in the action.” (CCP § 2032.220(e).)

Defendant’s demand was originally scheduled at least 30 days after the service of the demand, and it was served on Plaintiff, the only remaining party in this action. (Covarrubias Decl., Exh. B.)

Accordingly, the Court finds that Defendant complied with the service requirements for a demand for IME.

Sanctions

Sanctions are required against any “party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2032.250(b).) Here, however, Defendant did not request sanctions. In addition, given that Defendant’s original notice was insufficient, the Court would have denied any requested sanctions on the ground that Plaintiff acted with substantial justification in opposing this motion.

Court’s Ruling

In sum, Defendant has now satisfied the requirements of CCP § 2032.220.

Accordingly, the motion to compel the independent physical examination of Plaintiff is GRANTED. The Court will permit Dr. Amos to examine Plaintiff at the Office of Edwin C. Amos, M.D., 2021 Santa Monica Blvd., Suite 525E, Santa Monica, California 90404, on March 18, 2020 at 8:30 a.m. The testing it to be within the scope of Attachment A to Defendant’s second amended notice and is to be no more than four (4) hours in duration.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 24, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1]   Plaintiff has indicated that Defendant served an amended notice that removed these references and a later reference to a “mental examination,” but it does not appear that Defendant provided the Court with the amended notice.

Case Number: BC518996    Hearing Date: February 06, 2020    Dept: 47

Jennifer L. Shannon-Yeganhe aka Jennifer Yeganhe v. Cedars Sinai Medical Center, et al.

 

MOTION TO COMPEL INDEPENDENT PHYSICAL EXAMINATION

OF PLAINTIFF

MOVING PARTY: Defendant Cedars-Sinai Medical Center

RESPONDING PARTY(S): Plaintiff Jennifer Shannon-Yeganhe

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a medical malpractice action in which Plaintiff alleges that Defendants were negligent in providing medical care during a cervical fusion surgery in which she went into anaphylactic shock that resulted in brain injury and other physical and emotional injuries.

Defendant Cedars-Sinai Medical Center moves to compel an independent medical exam of Plaintiff.

TENTATIVE RULING:

Defendant Cedars-Sinai Medical Center’s motion to compel independent physical examination of Plaintiff is DENIED without prejudice.

DISCUSSION:

Motion To Compel Independent Medical Examination

Defendant Cedars-Sinai Medical Center moves to compel Plaintiff’s independent medical examination.

“In Controversy” Requirement

Any party may obtain discovery by means of a physical examination of a party in an action in which the physical condition of that party is “in controversy in the action.” (CCP § 2032.020(a).)

Here, Plaintiff’s current physical condition is “in controversy.” Plaintiff alleges that she suffered “anoxic brain injury secondary to intraoperative hypotension.” (Complaint, at p. 4.) She also alleges that she “was physically and emotionally injured and incurred and will continue to incur medical and economic damages as well as general damages.” (Ibid. (bold emphasis added).) In addition, in response to a form interrogatory asking her to identify her alleged injuries, Plaintiff answered “[a]noxic brain injury secondary to intraoperative hypotension, cognitive disfunction.” (Declaration of Natasha Covarrubias ¶ 4 & Exh. A.) In her response to Defendant’s demand for the IME, Plaintiff also asserted that her injury is “physical” and that she “has cognitive loss because of the physical injury.” (Id. ¶ 7 & Exh. C (bold emphasis added).) As such, her continuing physical condition is “in controversy” in this action, and Defendant may conduct a physical examination of Plaintiff, if the other statutory requirements are met. (CCP § 2032.020(a); Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

Procedural Requirements

Meet and Confer Requirement

The Declaration of Natasha Covarrubias indicates that the meet-and-confer requirement of CCP § 2032.250(a) has been met.

Licensed Physician

A physical examination “shall be performed only by a licensed physician or other appropriate licensed health care practitioner.” (CCP § 2032.020(b).) Here, the demand for IME indicates that the examination would be performed by Edwin C. Amos, M.D. Thus, this requirement is met.

Intrusiveness and Distance

In any case in which a plaintiff “is seeking recovery for personal injuries,” as in this case, “any defendant may demand one physical examination of the plaintiff,” if (1) the “examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive,” and (2) the “examination is conducted at a location within 75 miles of the residence of the examinee.” (CCP § 2032.220(a).)

As to the first requirement, Plaintiff argues that SPECT SCANS would be “painful, protracted, and intrusive.” Defendant’s demand does not, however, indicate that SPECT SCANS would be performed, and Defendant has now affirmatively represented that “no SPECT scans are being requested, or will be performed by Dr. Amos.” (Defendant’s Reply, at p. 3.) Of course, the fact that it was impossible to tell whether the physician would be performing SPECT SCANS presents another problem: Defendant did not specify the tests to be performed. Therefore, it is unclear whether this requirement is met, as Plaintiff has not had an opportunity to object to the actual tests to be performed on this basis, as opposed to the type of test Plaintiff guessed would be performed. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 263 [interpreting the statute to require specific tests to be specified to ensure that “the court has considered any objections to the tests and provides the examiner clear parameters for the examination” (bold emphasis added)].)

As to the second requirement, the examination would take place at 2021 Santa Monica Blvd., Suite 525E, Santa Monica, California, 90404. This is within 75 miles of Plaintiff’s residence according to court records. Thus, the second requirement is met.

In sum, because Defendant has not specified the tests or procedures to be performed, it is impossible for the Court (or Plaintiff) to determine whether the examination would include any tests or procedures that are “painful, protracted, or intrusive.” For that reason, the motion must be denied. Because Defendant may choose to bring this type of motion again, however, the Court will consider whether the other requirements for an IME were met.

Time, Place, Manner, Conditions, Scope, Nature, Identity, and Specialty

A demand for a physical examination “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 physician who will perform the examination.” (CCP § 2032.220(c).)

Beginning at the end of this list, Defendant’s demand did state the identity (Edwin C. Amos, M.D.) and specialty (neurology) of the physician who will perform the examination. Returning to the beginning of the list, the demand specified the starting time (8:30 a.m.) and place (2021 Santa Monica Boulevard, Suite 525E, Santa Monica, CA 90404) of the examination.

As to the “manner, conditions, scope, and nature of the examination,” however, the demand falls short. As to those topics, the demand states the following:

The examination will be for the purpose of determining, evaluating and assessing Plaintiff’s medical, mental and emotional condition,[1] claims of injury, residual complaints, damage and causation issues, and to prepare for testimony in the above-captioned matter. All conditions and injuries placed at issue by Plaintiff, and all claims of continuing, ongoing or permanent problems will be within the scope of the examination, along with claims for future care and/or treatment.

The examination will be consistent with other neurology practitioners in Southern California and consultations in connection with such practices. It will consist of procedures and tests routinely used by physicians examining patients for conditions such as those alleged by Plaintiff in the above captioned action, none of which is painful, protracted, intrusive, or substantially different in kind and character from those utilized by Plaintiff’s own physicians. It will include taking a medical history of the Plaintiff, a physical and mental examination of the Plaintiff, and a routine work-up and examination of the complaints and allegations made by Plaintiff in this lawsuit.

(Demand, at p. 2.)

As discussed above, this is far too vague to meet the requirements of the statute. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 263 [interpreting the statute to require specific tests to be specified to ensure that “the court has considered any objections to the tests and provides the examiner clear parameters for the examination” (bold emphasis added)].)

Accordingly, the Court finds that the Defendant’s notice for the proposed examination by Dr. Amos is insufficient because it does not identify the specific tests and procedures to be performed.

Timing and Service

The examination must be scheduled at least 30 days after the service of the demand. (CCP § 2032.220(d). The demand must be served on the “plaintiff and on all other parties who have appeared in the action.” (CCP § 2032.220(e).)

Defendant’s demand was originally scheduled at least 30 days after the service of the demand, but Defendant did not serve the demand on all other parties who have appeared in the action. Defendant’s proof of service shows only service on Plaintiff. (Covarrubias Decl., Exh. B.)

Accordingly, the Court finds that Defendant did not comply with the service requirements for a demand for IME.

Sanctions

Sanctions are required against any “party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2032.250(b).) Here, Defendant would be subject to the sanction, but Plaintiff did not ask for sanctions, and therefore the Court has no basis on which to award them. Thus, the Court finds that imposition of sanctions would be unjust.

Court’s Ruling

In sum, Defendant did not comply with the service requirements and did not specify the tests and procedures to be performed sufficiently to allow the Court and Plaintiff to determine whether they would be “painful, protracted, or intrusive” or sufficiently to comply with the requirements of CCP § 2032.220(c) to specify the “manner, conditions, scope, and nature” of the examination.

For these reasons, the motion to compel the independent physical examination of Plaintiff is DENIED without prejudice.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 6, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1]   Plaintiff has indicated that Defendant served an amended notice that removed these references and a later reference to a “mental examination,” but it does not appear that Defendant provided the Court with the amended notice.

Case Number: BC518996    Hearing Date: December 03, 2019    Dept: 47

Jennifer L. Shannon-Yeganhe aka Jennifer Yeganhe v. Cedars Sinai Medical Center, et al.

 

MOTION TO QUASH DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS TO CUSTODIAN OF RECORDS FOR CEDARS-SINAI MEDICAL GROUP ET AL.

MOVING PARTY: Plaintiff Jennifer Shannon-Yeganhe

RESPONDING PARTY(S): Defendant Cedars-Sinai Medical Center

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a medical malpractice action in which Plaintiff alleges that Defendants were negligent in providing medical care during a cervical fusion surgery in which she went into anaphylactic shock that resulted in brain injury and other physical and emotional injuries.

Plaintiff Jennifer Shannon-Yeganhe moves to quash three deposition subpoenas served on the Custodian of Records for Cedars-Sinai Medical Group. Plaintiff also seeks $3,750 in sanctions.

TENTATIVE RULING:

Plaintiff Jennifer Shannon-Yeganhe’s motion to quash deposition subpoenas for production of business records to Custodian of Records for Cedars-Sinai Medical Group et al. is CONTINUED to January 15, 2020. Plaintiff must choose one subpoena to move to quash. Any others may be filed and calendared as separate motions. January 15 may be used for the date of any additional motions that the Court’s calendar and the CRS allows. As to the one Plaintiff chooses for this continued motion, Plaintiff is to file the required separate statement by December 10, 2019. Defendant may file any responsive separate statement by December 17, 2019.

Motion To Quash Deposition Subpoena

Multiple Motions in One

At the outset, the Court notes that this motion is three motions in one: Plaintiff is seeking to quash three different deposition subpoenas, to three different (though related) entities, requesting three different sets of records. In the future, moving party is ordered to obtain separate hearing reservations and pay separate filing fees for separate motions. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

Had Plaintiff complied with the requirements for these motions, the Court might have exercised its discretion to hear all three, with its order becoming effective only with the payment of an additional $120 in filing fees. As discussed below, however, the combined motion is procedurally deficient in other ways. Plaintiff also attempts to include a fourth deposition subpoena, served after this motion was filed, within the scope of this motion. That, too, is procedurally improper.

Analysis

Plaintiff moves to quash three deposition subpoenas served on the custodian of records for three different Cedars-Sinai entities: (1) Cedars-Sinai Medical Group, (2) Cedars-Sinai Medical Group/Billing, and (3) Cedars-Sinai Medical Group/Radiology. Plaintiff argues these subpoenas are overbroad and seek medical records that are not related to Plaintiff’s adverse reaction to the medication Ancef or her injuries.

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(CCP § 1987.1(a).)

There is no meet and confer requirement in CCP § 1987.1, but a motion to quash does require a separate statement:

(a) Separate statement required

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

. . .

(CRC Rule 3.1345(a)(5) (bold emphasis added.)

Plaintiff has not filed the required separate statement as to any of these deposition subpoenas. Plaintiff has also attempted to include a fourth deposition subpoena, served after this motion was filed, within the scope of this motion. Both the failure to file the required separate statement and the attempt to include four separate deposition subpoenas in a single motion are procedurally improper.

Accordingly, the motion to quash is CONTINUED to January 15, 2020. Plaintiff must choose one subpoena to move to quash. Any others may be filed and calendared as separate motions. January 15 may be used for the date of any additional motions that the Court’s calendar and the CRS allows. As to the one Plaintiff chooses for this continued motion, Plaintiff is to file the required separate statement by December 10, 2019. Defendant may file any responsive separate statement by December 17, 2019.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 3, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

Case Number: BC518996    Hearing Date: November 22, 2019    Dept: 47

Jennifer L. Shannon-Yeganhe aka Jennifer Yeganhe v. Cedars Sinai Medical Center, et al.

 

MOTION TO QUASH DEPOSITION SUBPOENA FOR COUNTRYWIDE INVESTIGATIVE AGENCY’S BUSINESS RECORDS

MOVING PARTY: Defendant Cedars-Sinai Medical Center

RESPONDING PARTY(S): Plaintiff Jennifer Shannon-Yeganhe

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a medical malpractice action in which Plaintiff alleges that Defendants were negligent in providing medical care during a cervical fusion surgery in which she went into anaphylactic shock that resulted in brain injury and other physical and emotional injuries.

Defendant Cedars-Sinai Medical Center moves to quash a subpoena for Countrywide Investigative Agency, Inc.’s business records.

TENTATIVE RULING:

Defendant Cedars-Sinai Medical Center’s motion to quash subpoena for Countrywide Investigative Agency, Inc.’s business records is to be ARGUED at the hearing.

The Court has two basic lines of inquiry: (1) Are there videos and/or pictures in possession of Countrywide? If there are such sub-rosa evidence, does the Defendant intent to utilize it at trial for any purposes (including impeachment)? and (2) If these answers are both “yes,” how will the Plaintiff be “unduly surprised” by such evidence?

Motion To Quash Deposition Subpoena

Unsigned Notice of Motion

Defendant’s Notice of Motion is unsigned.

Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(CCP § 128.7(a) (bold emphasis added).) To avoid having the notice stricken, Defendant will need to correct this omission at or before the hearing.

Analysis

Defendant Cedars-Sinai Medical Center moves to quash a subpoena for the production of business records directed to Countrywide Investigative Agency, Inc. on the ground that it seeks records that are protected by the attorney work product doctrine. Defendant also argues that the subpoena was improperly served, but that ground does not appear in its Separate Statement.

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(CCP § 1987.1(a).)

There is no meet and confer requirement set forth in CCP § 1987.1, but a motion to quash does require a separate statement:

(a) Separate statement required

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

. . .

(CRC Rule 3.1345(a)(5) (bold emphasis added.)

Defendant has filed a separate statement in connection with this motion, and the Court will therefore consider the argument set forth therein related to Plaintiff’s Request No. 1.

¿ Request No. 1 (“Countrywide Investigative Agency’s entire surveillance file of all surveillance conducted on Ms. Jennifer L. Shannon-Yeganhe, a/k/a Jennifer Lynn Yeganhe, at the direction of Defense Counsel, including but not limited to: Photographs, Film and/or Video Recordings; Audio Recordings; Memos and/or Notes; Correspondence; and Statements.”)

Defendant argues that the requested documents and other materials constitute work product.

CCP § 2018.030 provides:

(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

Defendant does not claim that these materials constitute absolute work product under CCP § 2018.030; rather, Defendant claims that they are qualified work product under CCP § 2018.030(b).

The case law on whether photos, videos, and other materials prepared under the direction of an attorney constitutes work product is surprisingly limited. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:243 [“Surprisingly, there is no recent authority dealing with claims of work product for photos, videos, etc. prepared under an attorney’s direction.”].) Certainly, if these materials include the attorney’s thoughts and impressions, they would constitute work product. The question, however, is whether “raw” photos, film, video recordings, and audio recordings constitute work product when they are produced at the direction of an attorney.

As to photographs, for example, the Rutter Guide draws a distinction between photos of “physical evidence taken by the attorney or attorney’s agents,” which should be discoverable evidence, and “photos . . . reflecting counsel’s strategies and tactics in preparation for trial,” which should be treated as “qualified work product.” (Id. ¶¶ 8:243.1-8:243.2.) One could imagine, for example, that an attorney might direct an investigator to take a photograph from a certain angle, or to enlarge an area in a particular photograph. If so, those photographs would reflect the attorney’s strategies and tactics. On the other hand, it is less clear whether photographs of “physical evidence” such as “injuries” should be considered work product or “mere evidence.” (Id. ¶ 8:243.1.)

It appears, however, that the California Supreme Court does view films and other materials created at the direction of an attorney to be possible work product. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177 [“noting that the defendants “urged that undoubtedly the films” that their attorney directed to be taken “were the result of the work product of the attorney, which is correct”]; cf. Coito v. Superior Court (2012) 54 Cal.4th 480, 496 [contrasting a statement “independently prepared by a witness” with one that “has been obtained through an attorney-directed interview,” which is work product because it “would not exist but for the attorney’s initiative, decision, and effort to obtain it”].) Defendant concedes that the materials requested here fall into the category of qualified work product; Defendant is not arguing that they reflect their attorney’s impressions, conclusions, opinions, or legal research or theories, in the way that the hypothetical photos described above might.

Whether qualified work product of this type is discoverable depends on whether “denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (CCP § 2018.030(b).) Although Defendant is correct that Plaintiff has her own knowledge of her physical condition, she has no way to know what evidentiary material Defendant has that purports to demonstrate that condition without discovering that material. Information is relevant, and discoverable, when it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.) The requested materials could help in all three of these areas.

In short, if the Plaintiff has already been apprised of the existence of such sub rosa evidence,[1] and if the Defendant actually intends to utilize any of such evidence at trial (for whatever purposes), then this evidence must be produced upon a clear showing by the Plaintiff that she will be “unduly surprised and/or prejudiced” by the withholding of such evidence.

Although the Court might have suspected that some of the “Memos and/or Notes; Correspondence; and Statements” in Countrywide’s possession could include the impressions, conclusions, opinions, or theories of Defendant’s attorneys and therefore qualify as absolute work product under CCP § 2018.030(a), Defendant contend that all of the challenged materials constitute qualified work product. (Defendant’s Separate Statement, at p. 2.)   That remains to be seen.

A suggestion for future reference: when discussing matters of surveillance, counsel may want to refrain from referring to Countrywide Investigative Agency as “CIA.” A short name like “Countrywide” would be more appropriate and avoid confusion. If Countrywide chose its name so that it could use that acronym, kudos to Countrywide. But that doesn’t mean that counsel must do the same.

Dated: November 22, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] For example, this information is typically discovered by the use of Form Interrogatory (General) 12.4.