DWIGHT CARLSON VS DYLAN KIRSCH

Motion to Compel a Physical and Mental Examination

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On September 22, 2017, Plaintiff Dwight Carlson (“Plaintiff”) filed a complaint against Defendant Dylan Kirsch (“Defendant Kirsch”).  Plaintiff alleges general and motor vehicle negligence arising from an automobile collision that occurred on October 2, 2015.

On April 2, 2018, Plaintiff filed an amendment to his complaint to rename Doe 1 as Defendant Yvonne Katherine Trilling (“Defendant Trilling”).

On October 28, 2020, Defendants Kirsch Trilling pursuant to California Code of Civil Procedure section .

Trial is set for January 22, 2021.

PARTIES’ S

Defendants Kirsch and Trilling ask the Court to compel Plaintiff to appear for a second orthopedic examination because Plaintiff complains of cervical, lumbar, neck, and shoulder injuries that are distinct from the neurological injuries the first physical examination was for.

Defendants Kirsch and Trilling ask the Court to compel Plaintiff to appear for a

LEGAL STANDARD

California Code of Civil procedure section 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

California Code of Civil Procedure section or mental examination under Section 2032.310 only for good cause shown. . . . 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.”

DISCUSSION

The Court finds there is good cause for Plaintiff to undergo a second physical examination.  The first physical examination was a neurological examination.  (Selarz The proposed second physical examination is for an orthopedic examination of Plaintiff’s cervical injuries, lumbar injuries, chronic neck pain, ad shoulder strain.  (Ibid.; Motion, p. 4:1-4:6.)  These specialties are starkly different and necessarily involve the examination of differing sources of Plaintiff’s injuries.  Thus, there is good cause for the second physical examination.

The Court also finds there is good cause for Plaintiff to undergo a mental examination.  Plaintiff was diagnosed earlier this year with post-traumatic stress disorder, somatic symptom disorder, and possible major depressive order.  (Selarz ¶¶ Selarz ¶

Plaintiff argues the motion should be denied because Defendants Kirsch and Trilling Defendants Kirsch’s ’s motion is truly an untimely motion for reconsideration.  The Court disagrees.  Defendants Kirsch and Trilling parte parte

The court notes that while the requests certainly could have been made sooner, there is no prejudice to the plaintiff in their delay.  Defendants are not requesting a trial continuance.  

CONCLUSION

The motion GRANTED.

Plaintiff is ordered to appear for a mental Po-Haong PSY.D as follows:

Date: On December 3, 2020.

Time: 10:30 a.m.

Location: 11835 W. Olympic Blvd., #1265, Los Angeles, California.

Nature: this examination shall take no longer than B-test, Auditory Consonant Trigrams, Boston Diagnostic Aphasia Exam and/or Western Aphasia Bater, Brief Visospatial Ostrrieth Trailmaking Johnson Tests of Academic Achievement-IV, and Clinical Interview.  No diagnostic test or procedure is to be painful, protracted, or intrusive.

Plaintiff is ordered to appear for a physical James M. Loddengaard, M.D.

Date: On December 8, 2020.

Time: 1:30 p.m.

Location: 5215 Torrance Blvd., Suite 210, Torrance, California 90503.

Nature: this examination shall take no longer than eight hours and consist of the following tests: taking a history, present status, physical examination, and x-rays of injured areas.  No diagnostic test or procedure is to be painful, protracted, or intrusive.

Defendants Kirsch and Trilling are ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.