Preview
ELECTRONICALLY FILED
Superior Court of California,
County of Placer
PETERJ. HIRSIG (State Bar No. 197993) 02/22/2024 at 05:07:43 PM
peter.hirsig@ mcnamaralaw.com
By: Laurel L Sanders.
DANIEL R. MAYER (State Bar No. 300077)
Deputy Clerk
daniel. mayer@ mcnamaralaw.com
McNAMARA, AMBACHER, WHEELER,
HIRSIG & GRAY LLP
639 Kentucky Street,
Fairfield, CA 94533
Telephone: (707) 427-3998
Facsimile: (707) 427-0268
Attorneys for Defendants
HARJOBAN KAUR TOOR and BALJIT SINGH TOOR
SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER
CIVIL - UNLIMITED JURISDICTION
10
11
DANIEL GREGORY BONILLA, an Case No. S-CV-0048973
12 individual,
SEPARATE STATEMENT IN SUPPORT
13 Plaintiff, OF DEFENDANTS’ MOTION FOR
LEAVE TO PERFORM A FURTHER
14 vs. INDEPENDENT MEDICAL PHYSICAL
EXAMINATION OF PLAINTIFF
15 HARJOBAN KAUR TOOR, an individual;
BALJIT SINGH TOOR, an individual; Date: March 12, 2024
16 DOES 1 through 50, inclusive, Time: 8:30 am.
Dept: 42
17 Defendants. Trial Date: 4/2/2024
Action Filed: 8/19/2022
18
19
20 Pursuant to Rules of Court Rule 3.1345(c), Defendants HARJOBAN KAUR TOOR and
21 BALJIT SINGH TOOR provide the following separate statement:
22 I. EXAMINATION REQUESTED VIA DEMAND
23 Defendants request that Plaintiff submit to a further physical examination with Defendants’
24 expert neurosurgeon and pain management specialist, Scott C. Berta, M.D. pursuant to Code of
25 Civil Procedure §§ 2032.220, 2032.310, and 2032.320. This is due to new claims Plaintiff has made
26 since the initial examination was completed with Defendants’ expert orthopedic surgeon, Edward
27 L. Cahill, M.D. on or about September 27, 2023, and to new claims made after Plaintiffs deposition
28 and initial written discovery responses, and in fact on the eve of trial with his pre-trial discovery
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
Tesponses.
Defendants’ counsel initially demanded, on January 19, 2024, that Plaintiff appear for
physical examination on February 22, 2024, with Defendants’ expert neurosurgeon and pain
management specialist, Scott C. Berta, M.D., at Dr. Berta’s location in Vacaville.! That the demand
included this location was due to an oversight with regard to Plaintiff's residence, which is in Grass
Valley, CA and are more than 75 miles apart. Defendants’ counsel corrected the oversight with the
amended notice of IME, served on February 2, 2024, for the same date and time, but at Dr. Berta’s
location in Davis, which is within 75 miles of Plaintiff's place of residence.”
Dr. Berta’s examination will consist of the following: history of injury and treatment;
10 patient’s response to injury and treatment; current symptoms; past (or pre-incident) history; the
88
8 11 complete examination should require forty-five to ninety minutes. (Berta Decl. 9.)
12 II. PLAINTIFF’S RESPONSE
13 Plaintiff's counsel objected to the initial IME demand, solely on the hasis that the location
14 noticed was further than 75 miles from Plaintiff’s residence. Following service of the amended
15 demand, Plaintiff objected again, only now on the basis that a further IME may be conducted only
16 upon a finding of good cause by the Court. Defendant submits that Plaintiff has waived this
17 objection.
18
& 1 Full text: TO PLAINTIFF DANIEL GREGOY BONILLA AND TO HIS ATTORNEY S OF RECORD: Defendants
19 HARJOBAN KAUR TOOR and BALJIT SINGH TOOR demand pursuant to C.C.P. §2032.210 et seq. that you
appear on February 22, 2024 at 11:00 a.m. for an independent medical examination to be conducted by Scott Berta,
20 M_D., Neurosurgery located at 418 Davis Street, Vacaville, California; Telephone: 916-626-5500. This examination
will be conducted for the purpose of determining plaintiff's medical condition and the relation thereof to the accident
21 which is the subject of this litigation and will consist of history-taking and medical examination. (Mayer Decl. 11,
Ex. K.)
22 ? Full text: Id, except the place was to be: Davis Coworking @ Olive, 720 Olive Drive, Suite D1, Davis, California
95616; Telephone: 916-626-5500. (Mayer Decl. 12, Ex. M.)
23 3 Full text: TO THE PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: Plaintiff, DANIEL
GREGORY BONILLA, hereby objects to the Demands for Independent Medical Examination [CCP §2032.220],
24 served on January 19, 2024, on the following grounds: The location of the Independent Medical Examinations
pursuant to the Demand for Independent Medical Examination is further than 75 miles from the Plaintiff's residence
in Grass Valley, CA. Thus, the Demand for Independent Medical Examination is invalid pursuant to Code of Civil
25 Procedure section Cal. Code Civ. Proc. § 2032.220. Therefore, the deponent will not appear at or submit to the
examinations as noticed. (Mayer Decl. (11, Ex. L.)
26 “ Full text: PLEASE TAKE NOTICE that Plaintiff, DANIEL GREGORY BONILLA, hereby responds to
Defendants’ Demand for Second Medical Examination. Pursuant to the Code, Defendants are not entitled to a second
27 medical exam without leave of court, and only upon a showing of “good cause” for the additional examination. (See
Code Civ. Proc., §§ 2032.310; 2032.320, subd. (a)). Plaintiff objects to the second medical examination from going
28 forward. (Mayer Decl. (12, Ex. M.)
2
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
This matter arises out of an incident that that occurred at approximately 5:58 p.m. on
November 13, 2021 in the parking structure located at 1151 Galleria Boulevard in Roseville,
Califomia.
Defendants’ counsel then attempted to meet-and-confer, and stated the basis for this Motion
generally as described herein. Plaintiff's counsel chose not to engage with the substance or the
reasoning for Defendants’ demanding a further IME, and chose to stand on a bare reference to the
Code, which ordinarily permits only one IME.
III. REASONS WHY LEAVE TO PERFORM A FURTHER PHYSICAL EXAMINATION SHOULD BE
GRANTED
A Further Examinations May be Performed with Leave of Court and
10 Upon a Showing of Good Cause
11 Pursuant to Code of Civil Procedure section 2032.220, a defendant may demand one
12 physical examination of a plaintiff seeking recovery for personal injuries. But pursuant Code of
13 Civil Procedure § 2032.310, a party may seek leave of the court for another physical examination,
14 or for mental examination. And pursuant to § 2032.320(a), such motions are to be granted upon a
15 showing of good cause, as is done below.
16 It is unquestionable that multiple examinations may be ordered upon the requisite showing.
17 In Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255, the court held that multiple
18 examinations are not expressly restricted by § 2032.220(a), and are allowed for good cause. In that
19 case, the controlling opinion were those of the relevant physicians, which are provided in this case
20 as well. (See, Berta Decl. 92-9, Ex. A-D.)
21 B. Plaintiff’s Claims Made After Deposition, Initial Written Discovery,
and the Initial IME, and on the Eve of Trial, Combined with the
22 Appropriateness of Dr. Berta’s Specialty to these Late-Made Claims,
Establishes G ood Cause to Grant Leave to Perform a Further Physical
23 Examination
24 As indicated, by the end of the initial period of investigation and discovery, which
25 concluded approximately with Dr. Cahill’s examination of Plaintiff, he had not made any claims of
26 neuropathic pain or complex regional pain syndrome in the left arm, or of neck or back pain. (Mayer
27 Decl. 4-7, Ex. A-J.)
28 He did not disclose to Dr. Cahill that he had been diagnosed with CRPS by his own spine
3
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
and pain management specialist, Munish Lal, M.D., just a few days before his IME with Dr. Cahill,
and more than that, did not complain of any symptoms that were indicative of neuropathic pain or
complex regional pain syndrome. More than that, his complaints to Dr. Cahill were generally mild.
(Mayer Decl. 97, Ex. D; Berta Decl. 4-8, Ex. B-D.)
He similarly did not disclose any inkling of such in his deposition or initial written discovery
responses. In this regard, Plaintiff has even, to this day, not specifically claimed neuropathic pain
or complex regional pain syndrome; those terms are not used in his responses to pre-trial written
discovery. Instead, Defendants had to lear of them and prepare for them piecemeal by disclosures
selectively made by Plaintiff's counsel. (Mayer Decl. 4-10, Ex. A-J.)
10 As a result of these facts, there is no possibility that Plaintiffs claims of neuropathic pain
11 or complex regional pain syndrome in the left arm could possibly have been adequately investigated
12 or examined by Dr. Cahill at the initial examination. (Mayer Decl. 4-10, Ex. A-J; Berta Decl. {2-
13 8, Ex. A-D.)
14 More than that, Dr. Cahill’s specialty is not one-to-one with these complaints. Though they
15 arise from a limb which has been alleged to have been injured from the beginning of this case, and
16 in which Plaintiff allegedly sustained orthopedic injuries (hence why Plaintiff underwent the initial
17 IME with Dr. Cahill), his late-made complaints are of a materially different nature. Itis appropriate,
18 then, that Plaintiff not only undergo a further physical examination, but that he do so with a
19 physician of appropriate specialty, such as Dr. Berta. (Mayer Decl. 97, Ex. D; Berta Decl. 2-8, Ex.
20 A-D.)
21 Dr. Berta is a neurosurgeon and a pain management specialist, almost exactly the same
22 specialty as Dr. Lal, who diagnosed Plaintiff with CRPS and treated him forit with the implantation
23 of aspinal cord stimulator. He is very well-positioned to examine Plaintiff in regard to these specific
24 complaints and evaluate them fully. (Mayer Decl. 6, Ex. C; Berta Decl. 2-8, Ex. A-D.)
25 Regarding Plaintiff's entirely new claims of neck and back pain made with his recent
26 responses to pre-trial discovery, the exact same analysis applies. Even more, Dr. Berta’s specialty
27 as a neurosurgeon is also highly appropriate to these new claims, particularly neck pain. (Mayer
28 Decl. 8-10, Ex. E-J; Berta Decl. 2-8, Ex. A-D.)
4
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
For these reasons, good cause clearly exists to grant this Motion and grant leave to perform
a further physical examination of Plaintiff.
Cc Plaintiff has His Own Pain Management Specialist(s) Who Have or May
Examine Him in Full, Even as He Seeks to Deny the Same Opportunity
to Defendants
Plaintiffs expert disclosure included Joshua S. Prager, M.D. as a retained pain management
specialist. Dr. Lal, who provided the primary pain management diagnoses and treatment on which
Defendants seek to obtain Dr. Berta’s opinion and testimony, is supposedly not a retained expert
witness. Indeed, he is disclosed by Plaintiff only as a non-retained. Plaintiff's expert disclosure
does not include Dr. Prager’s report, and does not indicate that any such is forthcoming, but because
10 he is Plaintiffs retained expert, he will necessarily have full access to him if he feels the need to
11 perform an examination. Plaintiff’s counsel, in meeting-and-conferring on this Motion, stated that
12 he retained Dr. Prager solely due to Dr. Berta’s involvement. (Mayer Decl. §13, Ex. O-P.)
13 Whether this is true or not is irrelevant. As a result of the foregoing, it is more than clear
14 that Plaintiff has had the benefit of significant and unfettered evaluation, examination, and
15 treatment by pain management specialists. Plaintiff seeks to deny a similar opportunity to
16 Defendants, which is to their prejudice.
17 This issue was taken up in Shapira, as discussed above, when it was argued that defendants
18 should be permitted to have performed a further mental examination (specifically, psychiatric
19 workup) in part because Plaintiff had been examined by two treating physicians who would testify
20 on her behalf at trial. (Shapira, 224 Cal.A pp.3d at 1254.) This specific aspect was not specifically
21 addressed by the court in its reasoning or holding, which was to reverse the trial court’s
22 determination that defendants were not entitled to further examinations, but it was part of the
23 analysis. (Id at 1256.)
24 Regardless, it is true that the same disproportionality exists in this case, and that Defendants
25 will be prejudiced in their preparation of this matter for trial if this Motion is not granted.
26 D Plaintiff has Waived his Objection to a Further IME on the Basis of
Having Undergone One Before
27
Finally, but almost as important, Defendants submit that there is no need to determine the
28
5
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
existence of good cause, because Plaintiff has waived his objection to a further IME. It is generally
the rule that a party who fails to interpose an objection at the appropriate time has waived that
objection. (See generally, Code Civ. Proc. §§ 430.80 [pleadings]; 2025.410 [written objections to
notices of taking deposition]; 2025.460 [objections made during deposition] 2032.240 [waiver
occasioned by failure to timely respond to an IME demand].
In this case, Plaintiff objected to the initial demand for IME with Dr. Berta solelyon the
basis that the place prescribed for the examination was greater than 75 miles from the place of
Plaintiff's residence.
Defendants’ counsel, believing this to be the sole substance of Plaintiff's objection and that
10 he would be prepared to undergo a further examination in an appropriate location, amended the
11 notice to correct this deficiency. This then drew an objection to the effect that Plaintiff had already
12 undergone the one physical examination provided for in the Code.
13 Plaintiff could easily have made that objection at the time of the first notice, and
14 Defendants’ counsel could have begun meeting-and-conferring much sooner than what occurred.
15 For these reasons, Defendants submit that Plaintiff has waived his objection as to the number of
16 prior physical examinations and has no basis, now that the location of the procedure has been
17 corrected, on which to decline to appear.
18 It is therefore evident that good cause exists to grant leave to perform a further physical
19 examination of Plaintiff.
20 IV. PRIOR INDEPENDENT MEDICAL EXAMINATIONS OF PLAINTIFF BY DEFENSE EXPERTS
21 Edward L. Cahill, M.D., orthopedic surgery, performed a physical examination of Plaintiff
22 on or about September 27, 2023.
23 V. SUMMARY OF DOCUMENTS RELEVANT TO THE MOTION
24 e Plaintiffs deposition testimony: Plaintiff identified only the left arm, the left shoulder,
25 and chest as his injuries from the incident. (Mayer Decl. 94, Ex. A at 67:5-9, 128:6-13.)
26 e Plaintiffs initial written discovery responses:
27 o Form Interrogatory 6.2: Plaintiff identified only the following injuries: “Fracture
28 of radial bone, Left - forearm ORIF bone graft, chronic radiating shoulder pain,
6
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
left forearm pain, loss of fixation to left ulna.”
o Form Interrogatory 6.3: Plaintiff identified only the following ongoing injuries:
“radiating pain to the shoulder, left forearm.”
° (Mayer Decl. 5, Ex. B.)
e Dr. Lal’s notes:
° September 12, 2023: Plaintiff is diagnosed with complex regional pain
syndrome of the left upper limb by Munish Lal, M.D., a spine and pain
management specialist. Plaintiff and Dr. Lal begin discussing treatment via a
spinal cord stimulator implantation procedure.
10 December 8, 2023: Plaintiff is implanted with a trial spinal cord stimulator to
11 treat his CRPS.
12 (Mayer Decl. §6, Ex. C.)
13 Declaration of Dr. Berta:
14 . Board certified in neurosurgery and pain management. (Berta Decl. 2,
15 Ex. A.)
16 Dr. Berta has received and reviewed Plaintiff's medical records, his
17 deposition transcripts, discovery responses, depositions of witnesses,
18 and the IME report of Defendants’ expert orthopedic surgeon, Edward
19 L. Cahill, M.D., of September 27, 2023. (Berta Decl. 94, Ex. B.)
20 Dr. Berta has also reviewed the records and deposition testimony of Dr.
21 Lal. Dr. Berta is informed and believe that Dr. Lal plans to perform a
22 permanent implantation of a spinal cord stimulator, to treat Dr. Lal’s
23 diagnosis of Plaintiff with complex regional pain syndrome of the left
24 upper limb. (Berta Decl. 5, Exs. C and D.)
25 Dr. Bertais of the opinion that it is reasonable, equitable, and appropriate
26 to perform a further physical examination of Plaintiff. In this regard, Dr.
27 Berta is informed and believes that, at the time of Dr. Cahill’s exam,
28 Plaintiff was not then claiming neuropathic injury or complex regional
7
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
pain syndrome. These diagnoses were the basis of the care Dr. Lal
provided to Plaintiff. Plaintiff did not complain to Dr. Cahill of any
neuropathic pain or other symptoms of complex regional pain syndrome,
though Plaintiff had been diagnosed with CRPS by Dr. Lal on September
12, 2023. This being the case, Plaintiff's condition in this regard could
not have been adequately examined by Dr. Cahill. More than that, Dr.
Cahill possesses a different specialty than required for complete
examination and diagnosis in this regard. (Berta Decl. {6.)
Plaintiff's complaints and diagnoses to CRPS and neuropathic pain are
10 of amaterially different nature than Plaintiff's orthopedic complaints and
11 diagnoses relating to the fracture Plaintiff sustained to his left forearm.
12 Again, Dr. Cahill’s specialty is in orthopedics, and so even if CRPS had
13 been fully disclosed and understood by Dr. Cahill as circumstances then
14 existed, he still may not have been able to perform a complete
15 examination and diagnosis. (Berta Decl. 47.)
16 Dr. Cahill’s report: Plaintiff complained only of mild pain (rated at 0-3/10) in the elbow,
17 with no complaints and full range of motion in the shoulder. (Mayer Decl. 7, Ex. D;
18 Berta Decl. 5-7, supra.)
19 Plaintiff’s pre-trial discovery responses:
20 o Amended/supplemental responses to Form Interrogatories:
21 . 6.2: Unchanged.
22 . 6.3: Expanded to include neck pain and back pain.
23 e (Mayer Decl. 98, Ex. E.)
24 o Special Interrogatories, Set Two:
25 . Interrogatories #34-41: regarding whether Plaintiff contends he
26 sustained neck or back injury or pain attributable to the incident. (Mayer
27 Decl. 9, Ex. F.)
28 Plaintiff's Responses to #34-41: in the affirmative for the former, but in
8
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
the negative to the latter. In the follow-up interrogatories asking for the
facts, witnesses, and documents evidencing those contentions, no
specific details are provided. (Mayer Decl. 9, Ex. G.)
o Requests for Admissions, Set One:
. Requests #24 and 28: regarding whether Plaintiff’s imaging studies show
evidence of new or acute injuries to his cervical spine attributable to the
incident. (Mayer Decl. 10, Ex. H.)
Plaintiff's Responses to #24 and 28: unable to admit or deny. (Mayer
Decl. 910, Ex. I.)
10 Plaintiff's Response to Form Interrogatory 17.1. corresponding to
11 Requests #24 and 28: no specific further information. (Mayer Decl. 10,
12 Ex.J.)
13 o Declaration of Dr. Berta in this regard: from his review of Plaintiffs pre-trial
14 discovery responses, he is making a new claim of neck pain or injury. Due to
15 this, and the fact that Plaintiff did not complain of any neck pain to Dr. Cahill,
16 that aspect could not have been completely examined and diagnosed by Dr.
17 Cahill. And still further, this area of the body (the cervical spine) is squarely
18 within Dr. Berta’s specialty as a neurosurgeon, and to a lesser extent within Dr.
19 Cahill’s.
20 e Plaintiff's Expert Disclosure: discloses Joshua Prager, M.D., a pain management
21 specialist, as a retained expert witness. (Mayer Decl. 913, Ex. P.)
22 Dated: February 22, 2024 MCNAMARA, AMBACHER, WHEELER,
HirsiG & GRAY LLP
23
24
By: Danie R. M ayer
25 Peter J. Hirsig
Daniel R. Mayer
26 Attorneys for Defendant
HARJOBAN KAUR TOOR and BALJIT SINGH
27 TOOR
28
9
SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A
FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF
Preview
ELECTRONICALLY FILED Superior Court of California, County of Placer PETERJ. HIRSIG (State Bar No. 197993) 02/22/2024 at 05:07:43 PM peter.hirsig@ mcnamaralaw.com By: Laurel L Sanders. DANIEL R. MAYER (State Bar No. 300077) Deputy Clerk daniel. mayer@ mcnamaralaw.com McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 639 Kentucky Street, Fairfield, CA 94533 Telephone: (707) 427-3998 Facsimile: (707) 427-0268 Attorneys for Defendants HARJOBAN KAUR TOOR and BALJIT SINGH TOOR SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER CIVIL - UNLIMITED JURISDICTION 10 11 DANIEL GREGORY BONILLA, an Case No. S-CV-0048973 12 individual, SEPARATE STATEMENT IN SUPPORT 13 Plaintiff, OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER 14 vs. INDEPENDENT MEDICAL PHYSICAL EXAMINATION OF PLAINTIFF 15 HARJOBAN KAUR TOOR, an individual; BALJIT SINGH TOOR, an individual; Date: March 12, 2024 16 DOES 1 through 50, inclusive, Time: 8:30 am. Dept: 42 17 Defendants. Trial Date: 4/2/2024 Action Filed: 8/19/2022 18 19 20 Pursuant to Rules of Court Rule 3.1345(c), Defendants HARJOBAN KAUR TOOR and 21 BALJIT SINGH TOOR provide the following separate statement: 22 I. EXAMINATION REQUESTED VIA DEMAND 23 Defendants request that Plaintiff submit to a further physical examination with Defendants’ 24 expert neurosurgeon and pain management specialist, Scott C. Berta, M.D. pursuant to Code of 25 Civil Procedure §§ 2032.220, 2032.310, and 2032.320. This is due to new claims Plaintiff has made 26 since the initial examination was completed with Defendants’ expert orthopedic surgeon, Edward 27 L. Cahill, M.D. on or about September 27, 2023, and to new claims made after Plaintiffs deposition 28 and initial written discovery responses, and in fact on the eve of trial with his pre-trial discovery SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF Tesponses. Defendants’ counsel initially demanded, on January 19, 2024, that Plaintiff appear for physical examination on February 22, 2024, with Defendants’ expert neurosurgeon and pain management specialist, Scott C. Berta, M.D., at Dr. Berta’s location in Vacaville.! That the demand included this location was due to an oversight with regard to Plaintiff's residence, which is in Grass Valley, CA and are more than 75 miles apart. Defendants’ counsel corrected the oversight with the amended notice of IME, served on February 2, 2024, for the same date and time, but at Dr. Berta’s location in Davis, which is within 75 miles of Plaintiff's place of residence.” Dr. Berta’s examination will consist of the following: history of injury and treatment; 10 patient’s response to injury and treatment; current symptoms; past (or pre-incident) history; the 88 8 11 complete examination should require forty-five to ninety minutes. (Berta Decl. 9.) 12 II. PLAINTIFF’S RESPONSE 13 Plaintiff's counsel objected to the initial IME demand, solely on the hasis that the location 14 noticed was further than 75 miles from Plaintiff’s residence. Following service of the amended 15 demand, Plaintiff objected again, only now on the basis that a further IME may be conducted only 16 upon a finding of good cause by the Court. Defendant submits that Plaintiff has waived this 17 objection. 18 & 1 Full text: TO PLAINTIFF DANIEL GREGOY BONILLA AND TO HIS ATTORNEY S OF RECORD: Defendants 19 HARJOBAN KAUR TOOR and BALJIT SINGH TOOR demand pursuant to C.C.P. §2032.210 et seq. that you appear on February 22, 2024 at 11:00 a.m. for an independent medical examination to be conducted by Scott Berta, 20 M_D., Neurosurgery located at 418 Davis Street, Vacaville, California; Telephone: 916-626-5500. This examination will be conducted for the purpose of determining plaintiff's medical condition and the relation thereof to the accident 21 which is the subject of this litigation and will consist of history-taking and medical examination. (Mayer Decl. 11, Ex. K.) 22 ? Full text: Id, except the place was to be: Davis Coworking @ Olive, 720 Olive Drive, Suite D1, Davis, California 95616; Telephone: 916-626-5500. (Mayer Decl. 12, Ex. M.) 23 3 Full text: TO THE PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: Plaintiff, DANIEL GREGORY BONILLA, hereby objects to the Demands for Independent Medical Examination [CCP §2032.220], 24 served on January 19, 2024, on the following grounds: The location of the Independent Medical Examinations pursuant to the Demand for Independent Medical Examination is further than 75 miles from the Plaintiff's residence in Grass Valley, CA. Thus, the Demand for Independent Medical Examination is invalid pursuant to Code of Civil 25 Procedure section Cal. Code Civ. Proc. § 2032.220. Therefore, the deponent will not appear at or submit to the examinations as noticed. (Mayer Decl. (11, Ex. L.) 26 “ Full text: PLEASE TAKE NOTICE that Plaintiff, DANIEL GREGORY BONILLA, hereby responds to Defendants’ Demand for Second Medical Examination. Pursuant to the Code, Defendants are not entitled to a second 27 medical exam without leave of court, and only upon a showing of “good cause” for the additional examination. (See Code Civ. Proc., §§ 2032.310; 2032.320, subd. (a)). Plaintiff objects to the second medical examination from going 28 forward. (Mayer Decl. (12, Ex. M.) 2 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF This matter arises out of an incident that that occurred at approximately 5:58 p.m. on November 13, 2021 in the parking structure located at 1151 Galleria Boulevard in Roseville, Califomia. Defendants’ counsel then attempted to meet-and-confer, and stated the basis for this Motion generally as described herein. Plaintiff's counsel chose not to engage with the substance or the reasoning for Defendants’ demanding a further IME, and chose to stand on a bare reference to the Code, which ordinarily permits only one IME. III. REASONS WHY LEAVE TO PERFORM A FURTHER PHYSICAL EXAMINATION SHOULD BE GRANTED A Further Examinations May be Performed with Leave of Court and 10 Upon a Showing of Good Cause 11 Pursuant to Code of Civil Procedure section 2032.220, a defendant may demand one 12 physical examination of a plaintiff seeking recovery for personal injuries. But pursuant Code of 13 Civil Procedure § 2032.310, a party may seek leave of the court for another physical examination, 14 or for mental examination. And pursuant to § 2032.320(a), such motions are to be granted upon a 15 showing of good cause, as is done below. 16 It is unquestionable that multiple examinations may be ordered upon the requisite showing. 17 In Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255, the court held that multiple 18 examinations are not expressly restricted by § 2032.220(a), and are allowed for good cause. In that 19 case, the controlling opinion were those of the relevant physicians, which are provided in this case 20 as well. (See, Berta Decl. 92-9, Ex. A-D.) 21 B. Plaintiff’s Claims Made After Deposition, Initial Written Discovery, and the Initial IME, and on the Eve of Trial, Combined with the 22 Appropriateness of Dr. Berta’s Specialty to these Late-Made Claims, Establishes G ood Cause to Grant Leave to Perform a Further Physical 23 Examination 24 As indicated, by the end of the initial period of investigation and discovery, which 25 concluded approximately with Dr. Cahill’s examination of Plaintiff, he had not made any claims of 26 neuropathic pain or complex regional pain syndrome in the left arm, or of neck or back pain. (Mayer 27 Decl. 4-7, Ex. A-J.) 28 He did not disclose to Dr. Cahill that he had been diagnosed with CRPS by his own spine 3 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF and pain management specialist, Munish Lal, M.D., just a few days before his IME with Dr. Cahill, and more than that, did not complain of any symptoms that were indicative of neuropathic pain or complex regional pain syndrome. More than that, his complaints to Dr. Cahill were generally mild. (Mayer Decl. 97, Ex. D; Berta Decl. 4-8, Ex. B-D.) He similarly did not disclose any inkling of such in his deposition or initial written discovery responses. In this regard, Plaintiff has even, to this day, not specifically claimed neuropathic pain or complex regional pain syndrome; those terms are not used in his responses to pre-trial written discovery. Instead, Defendants had to lear of them and prepare for them piecemeal by disclosures selectively made by Plaintiff's counsel. (Mayer Decl. 4-10, Ex. A-J.) 10 As a result of these facts, there is no possibility that Plaintiffs claims of neuropathic pain 11 or complex regional pain syndrome in the left arm could possibly have been adequately investigated 12 or examined by Dr. Cahill at the initial examination. (Mayer Decl. 4-10, Ex. A-J; Berta Decl. {2- 13 8, Ex. A-D.) 14 More than that, Dr. Cahill’s specialty is not one-to-one with these complaints. Though they 15 arise from a limb which has been alleged to have been injured from the beginning of this case, and 16 in which Plaintiff allegedly sustained orthopedic injuries (hence why Plaintiff underwent the initial 17 IME with Dr. Cahill), his late-made complaints are of a materially different nature. Itis appropriate, 18 then, that Plaintiff not only undergo a further physical examination, but that he do so with a 19 physician of appropriate specialty, such as Dr. Berta. (Mayer Decl. 97, Ex. D; Berta Decl. 2-8, Ex. 20 A-D.) 21 Dr. Berta is a neurosurgeon and a pain management specialist, almost exactly the same 22 specialty as Dr. Lal, who diagnosed Plaintiff with CRPS and treated him forit with the implantation 23 of aspinal cord stimulator. He is very well-positioned to examine Plaintiff in regard to these specific 24 complaints and evaluate them fully. (Mayer Decl. 6, Ex. C; Berta Decl. 2-8, Ex. A-D.) 25 Regarding Plaintiff's entirely new claims of neck and back pain made with his recent 26 responses to pre-trial discovery, the exact same analysis applies. Even more, Dr. Berta’s specialty 27 as a neurosurgeon is also highly appropriate to these new claims, particularly neck pain. (Mayer 28 Decl. 8-10, Ex. E-J; Berta Decl. 2-8, Ex. A-D.) 4 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF For these reasons, good cause clearly exists to grant this Motion and grant leave to perform a further physical examination of Plaintiff. Cc Plaintiff has His Own Pain Management Specialist(s) Who Have or May Examine Him in Full, Even as He Seeks to Deny the Same Opportunity to Defendants Plaintiffs expert disclosure included Joshua S. Prager, M.D. as a retained pain management specialist. Dr. Lal, who provided the primary pain management diagnoses and treatment on which Defendants seek to obtain Dr. Berta’s opinion and testimony, is supposedly not a retained expert witness. Indeed, he is disclosed by Plaintiff only as a non-retained. Plaintiff's expert disclosure does not include Dr. Prager’s report, and does not indicate that any such is forthcoming, but because 10 he is Plaintiffs retained expert, he will necessarily have full access to him if he feels the need to 11 perform an examination. Plaintiff’s counsel, in meeting-and-conferring on this Motion, stated that 12 he retained Dr. Prager solely due to Dr. Berta’s involvement. (Mayer Decl. §13, Ex. O-P.) 13 Whether this is true or not is irrelevant. As a result of the foregoing, it is more than clear 14 that Plaintiff has had the benefit of significant and unfettered evaluation, examination, and 15 treatment by pain management specialists. Plaintiff seeks to deny a similar opportunity to 16 Defendants, which is to their prejudice. 17 This issue was taken up in Shapira, as discussed above, when it was argued that defendants 18 should be permitted to have performed a further mental examination (specifically, psychiatric 19 workup) in part because Plaintiff had been examined by two treating physicians who would testify 20 on her behalf at trial. (Shapira, 224 Cal.A pp.3d at 1254.) This specific aspect was not specifically 21 addressed by the court in its reasoning or holding, which was to reverse the trial court’s 22 determination that defendants were not entitled to further examinations, but it was part of the 23 analysis. (Id at 1256.) 24 Regardless, it is true that the same disproportionality exists in this case, and that Defendants 25 will be prejudiced in their preparation of this matter for trial if this Motion is not granted. 26 D Plaintiff has Waived his Objection to a Further IME on the Basis of Having Undergone One Before 27 Finally, but almost as important, Defendants submit that there is no need to determine the 28 5 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF existence of good cause, because Plaintiff has waived his objection to a further IME. It is generally the rule that a party who fails to interpose an objection at the appropriate time has waived that objection. (See generally, Code Civ. Proc. §§ 430.80 [pleadings]; 2025.410 [written objections to notices of taking deposition]; 2025.460 [objections made during deposition] 2032.240 [waiver occasioned by failure to timely respond to an IME demand]. In this case, Plaintiff objected to the initial demand for IME with Dr. Berta solelyon the basis that the place prescribed for the examination was greater than 75 miles from the place of Plaintiff's residence. Defendants’ counsel, believing this to be the sole substance of Plaintiff's objection and that 10 he would be prepared to undergo a further examination in an appropriate location, amended the 11 notice to correct this deficiency. This then drew an objection to the effect that Plaintiff had already 12 undergone the one physical examination provided for in the Code. 13 Plaintiff could easily have made that objection at the time of the first notice, and 14 Defendants’ counsel could have begun meeting-and-conferring much sooner than what occurred. 15 For these reasons, Defendants submit that Plaintiff has waived his objection as to the number of 16 prior physical examinations and has no basis, now that the location of the procedure has been 17 corrected, on which to decline to appear. 18 It is therefore evident that good cause exists to grant leave to perform a further physical 19 examination of Plaintiff. 20 IV. PRIOR INDEPENDENT MEDICAL EXAMINATIONS OF PLAINTIFF BY DEFENSE EXPERTS 21 Edward L. Cahill, M.D., orthopedic surgery, performed a physical examination of Plaintiff 22 on or about September 27, 2023. 23 V. SUMMARY OF DOCUMENTS RELEVANT TO THE MOTION 24 e Plaintiffs deposition testimony: Plaintiff identified only the left arm, the left shoulder, 25 and chest as his injuries from the incident. (Mayer Decl. 94, Ex. A at 67:5-9, 128:6-13.) 26 e Plaintiffs initial written discovery responses: 27 o Form Interrogatory 6.2: Plaintiff identified only the following injuries: “Fracture 28 of radial bone, Left - forearm ORIF bone graft, chronic radiating shoulder pain, 6 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF left forearm pain, loss of fixation to left ulna.” o Form Interrogatory 6.3: Plaintiff identified only the following ongoing injuries: “radiating pain to the shoulder, left forearm.” ° (Mayer Decl. 5, Ex. B.) e Dr. Lal’s notes: ° September 12, 2023: Plaintiff is diagnosed with complex regional pain syndrome of the left upper limb by Munish Lal, M.D., a spine and pain management specialist. Plaintiff and Dr. Lal begin discussing treatment via a spinal cord stimulator implantation procedure. 10 December 8, 2023: Plaintiff is implanted with a trial spinal cord stimulator to 11 treat his CRPS. 12 (Mayer Decl. §6, Ex. C.) 13 Declaration of Dr. Berta: 14 . Board certified in neurosurgery and pain management. (Berta Decl. 2, 15 Ex. A.) 16 Dr. Berta has received and reviewed Plaintiff's medical records, his 17 deposition transcripts, discovery responses, depositions of witnesses, 18 and the IME report of Defendants’ expert orthopedic surgeon, Edward 19 L. Cahill, M.D., of September 27, 2023. (Berta Decl. 94, Ex. B.) 20 Dr. Berta has also reviewed the records and deposition testimony of Dr. 21 Lal. Dr. Berta is informed and believe that Dr. Lal plans to perform a 22 permanent implantation of a spinal cord stimulator, to treat Dr. Lal’s 23 diagnosis of Plaintiff with complex regional pain syndrome of the left 24 upper limb. (Berta Decl. 5, Exs. C and D.) 25 Dr. Bertais of the opinion that it is reasonable, equitable, and appropriate 26 to perform a further physical examination of Plaintiff. In this regard, Dr. 27 Berta is informed and believes that, at the time of Dr. Cahill’s exam, 28 Plaintiff was not then claiming neuropathic injury or complex regional 7 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF pain syndrome. These diagnoses were the basis of the care Dr. Lal provided to Plaintiff. Plaintiff did not complain to Dr. Cahill of any neuropathic pain or other symptoms of complex regional pain syndrome, though Plaintiff had been diagnosed with CRPS by Dr. Lal on September 12, 2023. This being the case, Plaintiff's condition in this regard could not have been adequately examined by Dr. Cahill. More than that, Dr. Cahill possesses a different specialty than required for complete examination and diagnosis in this regard. (Berta Decl. {6.) Plaintiff's complaints and diagnoses to CRPS and neuropathic pain are 10 of amaterially different nature than Plaintiff's orthopedic complaints and 11 diagnoses relating to the fracture Plaintiff sustained to his left forearm. 12 Again, Dr. Cahill’s specialty is in orthopedics, and so even if CRPS had 13 been fully disclosed and understood by Dr. Cahill as circumstances then 14 existed, he still may not have been able to perform a complete 15 examination and diagnosis. (Berta Decl. 47.) 16 Dr. Cahill’s report: Plaintiff complained only of mild pain (rated at 0-3/10) in the elbow, 17 with no complaints and full range of motion in the shoulder. (Mayer Decl. 7, Ex. D; 18 Berta Decl. 5-7, supra.) 19 Plaintiff’s pre-trial discovery responses: 20 o Amended/supplemental responses to Form Interrogatories: 21 . 6.2: Unchanged. 22 . 6.3: Expanded to include neck pain and back pain. 23 e (Mayer Decl. 98, Ex. E.) 24 o Special Interrogatories, Set Two: 25 . Interrogatories #34-41: regarding whether Plaintiff contends he 26 sustained neck or back injury or pain attributable to the incident. (Mayer 27 Decl. 9, Ex. F.) 28 Plaintiff's Responses to #34-41: in the affirmative for the former, but in 8 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF the negative to the latter. In the follow-up interrogatories asking for the facts, witnesses, and documents evidencing those contentions, no specific details are provided. (Mayer Decl. 9, Ex. G.) o Requests for Admissions, Set One: . Requests #24 and 28: regarding whether Plaintiff’s imaging studies show evidence of new or acute injuries to his cervical spine attributable to the incident. (Mayer Decl. 10, Ex. H.) Plaintiff's Responses to #24 and 28: unable to admit or deny. (Mayer Decl. 910, Ex. I.) 10 Plaintiff's Response to Form Interrogatory 17.1. corresponding to 11 Requests #24 and 28: no specific further information. (Mayer Decl. 10, 12 Ex.J.) 13 o Declaration of Dr. Berta in this regard: from his review of Plaintiffs pre-trial 14 discovery responses, he is making a new claim of neck pain or injury. Due to 15 this, and the fact that Plaintiff did not complain of any neck pain to Dr. Cahill, 16 that aspect could not have been completely examined and diagnosed by Dr. 17 Cahill. And still further, this area of the body (the cervical spine) is squarely 18 within Dr. Berta’s specialty as a neurosurgeon, and to a lesser extent within Dr. 19 Cahill’s. 20 e Plaintiff's Expert Disclosure: discloses Joshua Prager, M.D., a pain management 21 specialist, as a retained expert witness. (Mayer Decl. 913, Ex. P.) 22 Dated: February 22, 2024 MCNAMARA, AMBACHER, WHEELER, HirsiG & GRAY LLP 23 24 By: Danie R. M ayer 25 Peter J. Hirsig Daniel R. Mayer 26 Attorneys for Defendant HARJOBAN KAUR TOOR and BALJIT SINGH 27 TOOR 28 9 SEPARATE STATEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR LEAVE TO PERFORM A FURTHER INDEPENDENT MEDICAL PHY SICAL EXAMINATION OF PLAINTIFF