GABRIELA CARO VS JAMAR WEATHERSBY ET AL

Tentative Rulings

Case Number: ****6745    Hearing Date: May 21, 2021    Dept: J

HEARING DATE: Monday, May 17, 2021

NOTICE: OK[1]

RE: Caro v. Weathersby, et al. (****6745)

______________________________________________________________________________

1. Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC’s

SUPPLEMENTAL MOTION TO COMPEL SECOND EXAMINATION OF

PLAINTIFF BY DEFENDANTS’ ORTHOPEDIC EXPERT

Responding Party: Plaintiff, Gabriela Caro[2]

2. Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC’s

SUPPLEMENTAL MOTION TO COMPEL SECOND EXAMINATION OF

PLAINTIFF BY DEFENDANTS’ PAIN MANAGEMENT EXPERT

Responding Party: Plaintiff, Gabriela Caro[3]

Tentative Ruling

1. Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC’s

Supplemental Motion to Compel Second Examination of Plaintiff by Defendants’

Orthopedic Expert is GRANTED [see below].

2. Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC’s

Supplemental Motion to Compel Second Examination of Plaintiff by Defendants’

Pain Management Expert is GRANTED [see below].

Background

Plaintiff Gabriela Caro (“Plaintiff”) alleges that she sustained injuries in a November 16, 2015 rear-end vehicle collision.

On January 13, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants Jamar Weathersby, Charter Communications, Inc. dba Charter Communications (CCI), Inc., CCO Social Vehicles, LLC and Does 1-50 for:

1. Negligence
2. Negligence Per Se

On August 13, 2019, this action was transferred from Department 2 of the Personal Injury Court to this department.

The Final Status Conference is set for June 7, 2021. Trial is set for June 15, 2021.

1. Motion to Compel Second Exam by Orthopedic Expert

Legal Standard

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff . . .” (Code Civ. Proc., ; 2032.220, subd. (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.” (Code Civ. Proc., ; 2032.220, subd. (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. (Code Civ. Proc., ; 2032.310, subd. (a).) “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.” (Code Civ. Proc., ; 2032.310, subd. (b).)

“The court shall grant a motion for a physical or mental examination under Section 2032.210 only for good cause shown.” (Code Civ. Proc., ; 2032.320, subd. (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.” (Code Civ. Proc., ; 2032.320, subd. (d).)

Discussion

Defendants Jamar Weathersby, Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC

(“Defendants”) move the court for an order to compel Plaintiff’s attendance at a second

examination by Defendants’ orthopedic expert, Dr. Gary L. Painter (“Painter”).

The motion is granted. The parties are instructed to confer forthwith as to the date, time and place of the examination. Painter previously examined Plaintiff on November 28, 2017. (Painter

Decl., ¶ 3.) On October 1, 2020, Plaintiff was examined by Dr. Jaspreet Singh (“Singh”); during

that examination, Plaintiff reported that her “symptoms have been worsening” and that when she

went back to work in July 2020 “she started to experience left S1 joint pain return.” (Whibley

Decl., ¶ 9, Exh. 5.) Singh’s report states that since Plaintiff’s return to work, Plaintiff “underwent

multiple left SI joint steroid/PRP injection which were diagnostic but not significantly

therapeutic.” (Id.) Singh recommended a left SI joint radiofrequency ablation and physical

therapy. (Id.) Singh’s report indicates that Plaintiff underwent the following interventions

since her November 28, 2017 examination with Painter: a June 11, 2018 trigger-point injection

(“TPI”) by Dr. Fuller; December 2, 2017 and March 18, 2018 left L405 L5-S1 SIJ platelet-rich

plasma injections (“PRP”); March 14, 2018 right L4-5 L5-S1 SIJ PRP; July 1, 2018 right L5 DR-

right S3 nerve block; August 5, 2018 left SIJ injection; and February 20, 2019 spinal cord

stimulator implant. (Id.) Singh’s report also indicates that Plaintiff received the following

diagnostic testing since her November 28, 2017 examination with Painter: June 16, 2018 MRI

lumbar spine (which “show[ed] facet joint inflammation at L4-5 and L5-SI” and “[m]ultilevel

disc protrusions”); October 22, 2018 CT lumbar spine (which “show[ed] facet hypertrophy L3

S1. Transitional anatomy with a sacralized L5 vertebral body and L5-S1 disc”) and October 22,

2018 CT pelvis (which “show[ed] SI joint degenerative changes and b/l hip degenerative

changes”). (Id.)

A second examination is warranted not just because of the passage of time, but because Plaintiff’s symptoms and condition have evolved since Painter’s last examination.

Further, Painter attests that, if he were permitted to perform a second examination of Plaintiff, he would utilize the same diagnostic tests and procedures as were used at the previous examination, “specifically: • Taking Plaintiff’s medical history, including a description of Plaintiff’s ongoing symptomatologies; • Non-painful active range of motion examination; • Gentle palpation of the injured body parts; • Muscle strength testing; • Sensory examination of the extremities using light touch; • Circumferential measurement of the extremities; and • Testing of the reflexes.” (Painter Decl., ¶ 4.) Painter further attests that Plaintiff will not be required to perform any activity that would cause pain and that the examination would last between 30-60 minutes. (Id., ¶¶ 5-6.)

Defendants’ proposed order does not satisfy the requirements of Code of Civil Procedure ; 2032.320, subd. (d). Defendants are instructed to provide the court with a revised proposed order setting forth the language in ¶¶ 4-6 of Painter’s declaration forthwith.

2. Motion to Compel Second Exam by Pain Management Expert

Legal Standard

See Motion #1.

Discussion

Defendants

move the court for an order to compel Plaintiff’s attendance at a second examination by

Defendants’ pain management expert, Dr. Richard A. Paicius (“Paicius”).

The motion is granted. The parties are instructed to confer forthwith as to the date, time and place of the examination. Paicius previously examined Plaintiff on August 6, 2019. (Paicius

Decl., ¶ 3.) Again, on October 1, 2020, Plaintiff was examined by Singh. See synopsis of Singh

report above.

A second examination is warranted not just because of the passage of time, but because Plaintiff contends that her pain is worsening, she experiences pain at work and she has received additional medical interventions to alleviate that pain since Paicius’ examination.

Further, Paicius sets forth the diagnostic tests and procedures he would perform during a second examination in ¶ 4 of his declaration, and the scope of the physical exam he would perform in ¶ 5 of his declaration.

Defendants’ proposed order does not satisfy the requirements of Code of Civil Procedure ; 2032.320, subd. (d). Defendants are instructed to provide the court with a revised proposed order setting forth the language in ¶¶ 4 and 5 of Paicius’ declaration forthwith. The length of the examination is not to exceed the time of Paicius’ first examination.

Case Number: ****6745    Hearing Date: March 22, 2021    Dept: J

HEARING DATE: Monday, March 22, 2021

NOTICE: OK

RE: Caro v. Weathersby, et al. (****6745)

______________________________________________________________________________

Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC’s

MOTION TO COMPEL SECOND DEPOSITION AND EXPERT EXAMINATIONS OF

PLAINTIFF

Responding Party: Plaintiff, Gabriela Caro

Tentative Ruling

Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC’s

Motion to Compel Second Deposition and Expert Examinations of Plaintiff is DENIED

without prejudice in part (i.e., as to expert examinations) and otherwise denied (i.e., as to

second deposition). Defendants’ counsel is ordered to pay an additional $120.00 in filing

fees at or before the time of the hearing.

Background

Plaintiff Gabriela Caro (“Plaintiff”) alleges that she sustained injuries in a November 16, 2015 rear-end vehicle collision.

On January 13, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants Jamar Weathersby, Charter Communications, Inc. dba Charter Communications (CCI), Inc., CCO Social Vehicles, LLC and Does 1-50 for:

1. Negligence
2. Negligence Per Se

On August 13, 2019, this action was transferred from Department 2 of the Personal Injury Court to this department.

The Final Status Conference is set for June 7, 2021. Trial is set for June 15, 2021.

Legal Standard

Deposition

“Once a party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has ben served with a deposition notice . . . may take a subsequent deposition of that deponent.” (Code Civ. Proc., ;2025.610, subd. (a).) “Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition . . .” (Code Civ. Proc., ;2025.610, subd. (b).)

Medical Examination

“In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff . . .” (Code Civ. Proc., ; 2032.220, subd. (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.” (Code Civ. Proc., ; 2032.220, subd. (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. (Code Civ. Proc., ; 2032.310, subd. (a).) “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.” (Code Civ. Proc., ; 2032.310, subd. (b).)

“The court shall grant a motion for a physical or mental examination under Section 2032.210 only for good cause shown.” (Code Civ. Proc., ; 2032.320, subd. (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.” (Code Civ. Proc., ; 2032.320, subd. (d).)

Discussion

Defendants Jamar Weathersby’s Charter Communications, Inc. dba Charter

Communications (CCI), Inc., individually and on behalf of CCO Social Vehicles, LLC

(“Defendants”) move the court for orders to compel (1) Plaintiff’s second deposition; (2)

Plaintiff’s attendance at a second examination by Defendants’ orthopedic expert, Dr. Gary L.

Painter (“Painter”) and (3) Plaintiff’s attendance at a second examination by Defendants’ pain

management expert, Dr. Richard M. Paicius (“Pacius”).

Filing Fees

The notes that Defendants’ motion is essentially three separate motions improperly combined into one. Defendants have only paid one filing fee. This is improper. Defendants’ counsel is ordered to pay an additional $120.00 in filing fees at or before the time of the hearing (i.e., $60.00 filing fee/motion). Defendants’ counsel is admonished to adhere to court filing guidelines in any future filings and to reserve, file and pay for separate motions in the future. Failing to adhere to these guidelines may result in the court taking the motion off calendar.

The motion is summarily denied without prejudice as to the request for second medical

examinations, for Code of Civil Procedure ; 2032.320, subdivision (b) non-compliance

[diagnostic tests and procedures not identified]. (See Carpenter v. Superior Court (2006) 141

Cal.App.4^th 249, 260.)

The motion is otherwise denied. Defendants have not shown good cause for deposing Plaintiff a second time. Defendants argue that Plaintiff’s damages “have expanded and changed over time;” however, Defendants have failed to provide the court with any facts supporting this assertion. It is unclear to the court, moreover, how Defendants would be precluded from obtaining any information sought via written discovery.