Resolving Discovery Disputes - Using discovery to reach evaluation, mediation and trial goals

In most personal injury actions the plaintiff is served with a Notice for an Independent Medical Examination. It has become so commonplace that no one really thinks twice about the demand. However, there are a few requirements to this discovery device that defendant must comply with in order to perfect the request.  

Pursuant to C.C.P. §2032.020(a) (pdf) any defendant has the right to demand a physical exam of the plaintiff to whatever portion of plaintiff’s body or conditions that are “in controversy” which means the specific injury or condition which is the subject of the litigation Roberts v. Sup Ct. (1973) 9 C3d 330, 337 (pdf). This can be determined either by the pleadings [Vinson v. Superior Court (1987) 43 C3d 833, 840 (pdf)] or by answers to discovery.

Code of Civil Procedure §2032.020(b) (pdf)) requires that that a licensed physician or other appropriate licensed health care practitioner performs the examination. Thus, a vocational rehabilitation expert who is neither a licensed physician nor a health care professional not working under the direction of a physician can perform the examination. See Weil and Brown, Civil Procedure Before Trial (TRG 2012) §8:1537 citing Browne v. Superior Court (1979) 98 CA3d 610, 615 (pdf).

The demand itself must comply with C.C.P. §2032.220 (pdf), which states:

(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:

(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.

(2) The examination is conducted at a location within 75 miles of the residence of the examinee.

(b) 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.

(c) A demand 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 physician who will perform the examination.

(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.

(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.

Although obtaining an Independent Medical Examination may appear to be a simple process here are some interesting twists and turns that I have encountered that a defendant should consider before they serve their demand. 

Scenario #1: Plaintiff was injured on a construction site when a crane hook hit him on the side of the face. Plaintiff brought a personal injury action against the defendant. In his answer to Form Interrogatory 6.1, plaintiff stated that he suffered a fractured skull, fractured jaw, migraines, hearing loss, vision loss and two broken teeth due to the incident. Upon receipt of the interrogatory answers, defendant noticed four separate independent medical examinations with a neurologist, ophthalmologist, ear nose and throat doctor and an oral surgeon. Plaintiff objected. 

Pursuant to C.C.P. §2032.020(a) (pdf), a defendant in a personal injury case has the right to one physical examination of the plaintiff without leave of court simply by serving a written demand on plaintiff. The only requirement is that the physical examination must be limited to whatever portion of plaintiff’s body or conditions that are “in controversy” in the lawsuit.

However, in this scenario, there are four separate portions of plaintiff’s body that are “in controversy.” If the defendant wants plaintiff examined by a second, third or fourth doctor and the plaintiff objects, then he must show good cause to obtain a court order. The requirement of good cause “is not a mere formality” that may be “met by mere conclusory allegations.” Hogan and Weber, California Civil Discovery, (Lexis Nexis 2005, updated 2012) §8:6 citing Schlagenhauf v. Holder (1964) 379 US 104, 118. A showing of good cause must be established and can easily be established in a variety of ways. Usually the pleadings or plaintiff’s answers to form interrogatories provide the basis of good cause. Another is to determine what specialists the plaintiff has seen or will be calling as an expert at trial. Hogan and Weber, California Civil Discovery, supra, §8:6 cite helpful language from the federal case Pastel v. Amana Refrigeration, Inc. (1980, ND Ga) 87 FRD706, 709: 

Unless [its ophthalmologist] is likewise allowed to examine the plaintiff, the defendant will be at a distinct disadvantage in this “battle of experts” at trial... Because the plaintiff has permitted [his own ophthalmologist] to examine him, fundamental fairness dictates that he now allow [a defense ophthalmologist] to do so also.

In Shapira v. v. Superior Court (1990) 224 CA3d 1249, 1255 (pdf), the California First District Court of Appeal held that a defendant who had already had the plaintiff be seen by a neurologist and a neuropsychologist could still show good cause for an examination by a psychiatrist.

In light of the statutory authority and case law, I recommend that that before defendant serve his first demand that they meet and confer with plaintiff counsel regarding the need for multiple medical exams. If that is not successful, then bring the motion to the court before proceeding with any medical examination.

Scenario #2: Plaintiff, a world class surfer, has filed a multi-million dollar claim against a maker of sun screen alleging that their product caused burns to his skin and made his skin so sensitive to saltwater that he is no longer able to compete in surfing competitions. Defendant served a Notice of IME stating that “patch testing will be performed applying the subject product in the appropriate proportions.” Plaintiff timely objected to the examination on the grounds that the diagnostic test requested is “painful, protrusive and protracted" and thus, violates C.C.P. §2032. Defendant brings a motion to compel the diagnostic testing. 

California courts have not yet defined what is a “painful, protracted and intrusive” test or procedure within the meaning of C.C.P. §2032.220(a)(1) (pdf). However, many courts across the country have allowed specific tests and procedures to be performed: Abex Corp. v. Superior Court (1989) 209 Cal. App. 3d. 755, 758 (pdf) (biopsy allowed); Sullivan, Long & Haggerty, Inc. v. Washington (1942, CA5 La) 128 F2d 466 [x-ray examination using lipoidol]; Riss & Co. v. Galloway (1941, Colo.) 114 P2d 550, [spinal tap]; Burns v. Aetna Life Ins. Co. (1933, Mont.) 26 P2d 175 [periodic immersion of injured hand into hot water]; United States Fidelity & Guaranty Co. (1919 Neb.) 173 NW 689 [x-ray procedure requiring injection of contrast substance into the kidney]; Cardinal v. University of Rochester (1946, Misc) 71 NYS2d 614 [bone marrow biopsy]; Carrig v Oakes (1940, App Div.) 18 NYS2d 917 [cystoscopic examination of a female plaintiff]; Bartoletta v. Delco Appliance Cor. (1938 App. Div.) 4 NYS2d 744 [stomach examination requiring consumption of barium meal]. For more detail see Hogan and Weber, California Civil Discovery, supra, at §8:7.

In regards to how the court's should handle the issue, I agree with Hogan and Weber, California Civil Discovery, supra, at §8:8, who recommend that

California courts, faced with a motion for a painful or dangerous type of medical test should consider the practice adopted in New York and Illinois for balancing ‘the competing interests of the defendant to investigate and completely satisfy his curiosity by generally accepted medical tests and the plaintiff’s interest in his own safety and comfort given the risks of a particular procedure...an examinee who is concerned about the pain or the risk connected with any requested examination, must file an objection. The examinee must support its objection by declarations of physicians or excerpts from recognized medical tests that describe the dangers it poses. After such a response, the moving party must show that the requested examination has clear probative value to the litigation’s ultimate issues and there is a minimal level of risk to the plaintiff. To meet this burden the moving party must present competent and specific medical evidence, not conclusory statement of defense counsel or physicians.

So plan your arguments and strategy around this procedure.

Scenario #3: Plaintiff was in his pick-up truck when he was t-boned by a cement truck. While his car veered out of control from the impact two other cars hit him. The accident caused multiple fractures in his left leg.  Plaintiff was immediately operated on by an orthopedist who repaired the bones, but left plaintiff with stiffness in his left leg and it was shorter by over an inch. Plaintiff eventually sued all three drivers. The driver of the cement truck obtained an orthopedic exam of the plaintiff prior to the other divers appearing in the suit. Once the other defendants appeared in the case they two served IME notices for an orthopedic examination of the plaintiff.

C.C.P. §2032.220(a) (pdf) states, "In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may obtain demand one physical examination of the plaintiff." However, there are more practical aspects to this code section then its plain meaning. In this scenario, two defendants came in the case after the first IME was performed. They didn't have the opportunity to choose the specialty of the doctor let alone the doctor. As with a deposition, they should be given the right to conduct their own discovery. However, this is going to prompt either an objection and/or a protective order by the plaintiff.  So before you serve a second IME notice for the same area of specialty, ask yourself the following:

A. Can you live with the report from the first IME doctor?

B. Are you going to need to discredit the first IME doctor in order to get your own doctor to perform the IME?

C. If there are conflicting reports from the two IME doctors, how are you going to handle it?

D. Can you do an IME in another specialty (i.e., neurology, plastic surgery, etc.)?  See Shapira v. v. Superior Court (1990) 224 CA3d 1249, 1255 (pdf)

If you still want to proceed with your own orthopedic IME then you should bring a motion pursuant to pursuant to C.C.P. §2032.320(a) (pdf) and be prepared to show good cause and why it is not considered harassing the plaintiff. Some of the arguments you can make in showing good cause is:

A. Significant time has passed since the last IME.

B. Continuing injury or injury has worsened Vinson v. Superior Court (1987) 43 C3d 833, 840 (pdf).

C. A subsequent accident or injury since the first IME was performed.

D. Different area of expertise (i.e., neurologist, plastic surgeon, etc.).

Remember that when you bring your motion you will need a separate statement and a declaration showing that you met and conferred with plaintiff’s counsel.

I am pleased to report that the California Judicial Council has approved for use Form Interrogatories—Construction Litigation (form DISC-005).  The approved form will be on the Judicial Council website at http://www.courts.ca.gov/forms.htm in December and will become effective January 1, 2013. 

These interrogatories follow the same format as the other Judicial Council form interrogatories. The instructions at the beginning are essentially the same as those of the other form interrogatories, with two exceptions:

1. In residential construction cases the use of the interrogatories is five residential single-family homes or housing units.  In cases involving six or more single-family homes or housing units or in a case deemed complex under rule 3.400 of the California Rules of court, a party must obtain judicial approval prior to their use.  The rationale behind this limitation was that in these instances there is the potential of abuse and the case would be on direct calendar or a special master/discovery referee would be involved. 
2. The instructions recognize that a document depository is created in many construction cases, so form permits interrogatory responses that point to specific documents in such a depository that contain the information sought.

Other notable aspects of the proposed construction form interrogatories include the following:

As with other civil form interrogatories, parties may attach additional individually crafted interrogatories.   

• The definitions section in the instructions of the construction form interrogatories parallels the list in the general civil form interrogatories but add or substitute terms specific to construction litigation. Because “incident” would be confusing as a defined term in construction interrogatories, that term has been replaced with “construction claim” and “construction defect claim”; the asking party still has the option of crafting custom definitions for these two defined terms, just as with “Incident” in the civil interrogatories.
• The construction interrogatories are intended to serve as a single integral set of interrogatories rather than as a discrete set of specialty interrogatories for use as an addition or supplement to other form interrogatories, so they include interrogatories on several topics included in the general civil form interrogatories, with several of those tailored to more specifically address construction cases.
• None of the questions concerning personal injury from the general form interrogatories are included in the proposed form. Such interrogatories would rarely be applicable in a construction case with the exception of the mold cases, and the committee concluded that their presence in this set would unnecessarily complicate the form.

I, again,  want to thank each of the committee members for their hard work and dedication.  Despite their differences with one another on various issues, as a whole we worked hard as a team and were proud of our end product.  I also want to thank Anne Ronan, staff Attorney for the Judicial Council, who too worked endless hours on this project.  Most of all I want to thank the Civil and Small Claims Committee for recognizing all the hard work the attorneys have dedicated to making the Form Interrogatories–Construction Litigation a reality by recommending the interrogatories and inviting the public to comment. And, finally, I want to thank the Judicial Council for approving the form interrogatories.

If you have any questions regarding the Form Interrogatories–Construction Litigation, please do not hesitate to contact me.  

On Monday, September 17, 2012, Governor Brown signed Assembly Bill 1875 which will limit depositions to one seven (7) hour day.  This law conforms with the federal rules and becomes effective on January 1, 2013.  The enactment of the legislation will add Section 2025.290 to the Code of Civil Procedure which will read as follows:  

 (a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(b) This section shall not apply under any of the following circumstances:

(1) If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.

(2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.

(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, in which case the deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.

(4) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.

(5) To any deposition of a person who is designated as the most qualified person tobe deposed under Section 2025.230.

(6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.

(c) It is the intent of the Legislature that any exclusions made by this section shall not be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions falling within the exclusion. Nothing in this section shall be construed to affect the existing right of any party to move for a protective order or the court's discretion to make any order that justice requires to limit a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.

 

Any thoughts, words of wisdom or advice?

DILEMMA: It is 30 days before trial and you get the final responses to your propounded discovery.  In reviewing responding party’s answers to supplemental interrogatories the verified response says “Responding party states that all answers to Interrogatories, Set No. One, that were previously served in this action remain the same.”  Yet years have passed, records have been obtained, experts have been deposed and you know they’re lying. What do you do?

The Discovery Act allows a party to serve a Supplemental interrogatory and a Supplemental demand at least three times: 

• twice prior to any trial setting; and 
• once after the initial trial setting and before the initial trial date

The act also allows that “ for good cause shown” (i.e., trial continuance) the court may permit more supplemental interrogatories or supplemental demands.  See C.C.P. §2030.070 (pdf) and C.C.P. §2031.050 (pdf)

The burden is on the propounding party to obtain the updated information otherwise there is no continuing obligation of a responding party to update their responses.  However, the reality of the matter is that these discovery devices are seldom used and the responding parties rarely take them seriously.  

As a discovery referee, I see most parties use the supplemental interrogatory and demand as their last discovery device with the responses due exactly 30 days before trial.  

More often then not the propounding party is saddled with the above response with the trial date just weeks away leaving precious time to meet and confer in good faith and timely bring the motion.  But the bottom line is, YOU HAVE TO BRING THIS MOTION or your proceeding to trial in the dark.  Also, don’t kid yourself, this going to be an ugly one.  In order too win this motion you are going to have to point out to the court that opposing counsel (1) failed to make a reasonable and good faith effort to obtain the information; (2) only spent five minutes dictating “all answers remain the same”; (3) relied on three-year-old objections that are now garbage objections; and (4) is playing games with discovery for the sole purpose of hiding the ball and trying to skunk you at trial.   Your motion is also going to be asking for, at a minimum, a continuance of the trial if not issue and evidence sanctions.  

In order to avoid the above scenario, a party should use the supplemental interrogatories and demands in an efficient and effective manner.  They should be sent at least once a year and no later then 90 days before trial.  The responses you obtain should direct you on how to proceed with your discovery plan.  If the responding party says they don’t have any further information, then you need to solidify that point by either way of a motion to compel further responses, requests for admissions or  motion in limine so no further information can be admitted at trial. 

Moral of the Story: Supplemental interrogatories and supplemental demands are useful tools and they should definitely be in your bag of tricks.  Just don’t wait until the last minute to use them. 

Plaintiff employment attorneys Karine Bohbot and Elizabeth Riles from the Law Offices of Bohbot and Riles in Oakland, California wrote a great article in Plaintiff Magazine titled “Early Punitive Damages Discovery—Let’s give it a try!”  The article gives strategic advice on how to obtain early punitive damage discovery.  Here are some excerpts from their article:

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One aspect of a plaintiff ’s employment case that often does not get the attention or work it needs is punitive damages. The law provides for punitive damages in most intentional tort actions, such as personal injury cases for assault and battery, and for employment discrimination actions brought under the Fair Employment and Housing Act and similar federal statutes, when the plaintiff establishes that the conduct of a defendant was malicious or in total disregard of the plaintiff ’s rights. (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220-222 (pdf); Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1540 (pdf);Monge v. Superior Court (1986) 176 Cal.App.3d 503, 509 (pdf); lackner v. North (2006) 135 Cal.App.4th 1188, 1212 (pdf)  Once the jury has found that the plaintiff has met his or her burden on this point, which occurs in the first phase of the trial, the plaintiff is then permitted to move on to the second phase of the trial – the punitive phase. It is in this phase that the plaintiff has the opportunity, and bur- den, to set forth evidence of the defendant’s financial condition and net worth in support of the amount of punitive damages being sought by the plaintiff.

Plaintiffs’ attorneys understand that the standard to prove punitive damages, clear and convincing evidence, is a high one. Moreover, many plaintiffs’ attorneys have either heard from the court or the defendant that they are not permitted discovery into the financial status or condition of the defendant to meet this burden until after liability and malice have been proven to a jury. Unfortunately, this timing often leaves little time for a plaintiff ’s attorney to analyze the financial information received and prepare for the common arguments used to lower a punitive damage award, i.e., poverty, large payables, etc. As plaintiffs’ attorneys, the most important thing that we can do is place our client in the best position possible for settlement, trial or anything else. This timing prevents us from accomplishing that goal.

BRINGING A MOTION TO SECURE DISCOVERY

Bringing a motion to secure this discovery prior to trial, is the most important step a plaintiff ’s attorney can take in order to ensure she has placed herself and her client in the best position to secure a punitive damages award at trial. The burden warranting permission from the court to obtain the defendant’s financial records and information is a high one, but it is
 not an insurmountable one. Bringing a motion for discovery of financial records during the discovery stage is by far the best way to ensure, or at least greatly increase the chances, that you will be permitted to obtain these records in time.  So what do you do? 

Civil Code section 3294 (pdf) provides the vehicle for plaintiffs to bring a motion seeking the court’s permission to conduct discovery into financial records of the defendants that might otherwise be prohibited by law.  If the plaintiff is able to establish, through affidavits and other evidence, that he or she “has established that there is a substantial probability that [he or she] will prevail on the claim for punitive damages,” the Court is within its right to grant the discovery.  (See Civ. Code, § 3295(c) (pdf); Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 757 (pdf) The court’s role in making this determination is to weigh the evidence presented by both sides and “simply . . . determine whether there is a “strong likelihood” or whether it is “very likely” that the plaintiff will prevail on [his or her] claim for punitive damages against the defendants.” (Id. at 759; Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 98 (pdf).) This “weighing is not the traditional fact- finding process and shall not be considered to be a determination on the merits of the claim or any defense thereto.” (Id., at 758; Guardado, 163 Cal.App.4th at 98.) [emphasis added]

Therefore, your first step is to evaluate your claims and determine whether they provide for punitive damages. If they do, then your next step is to carefully evaluate your facts to determine whether a jury could well find that the defendant’s conduct towards your client was malicious or in total disregard of his or her rights. Next, you will need to conduct the necessary discovery to secure the evidence to support these facts. This could involve getting declarations, taking depositions and fighting discovery battles related to other claims of discrimination made against the defendant. As is discussed more fully below, this evidence can be vital to this kind of motion. Once you have taken these steps, if you believe sufficient facts do or even may support a finding of malice, then bring your motion.

The motion is not a complicated one, but should include a detailed factual analysis, with special emphasis on those facts that support a finding of malice against the defendant. You should include deposition testimony, exhibits and declarations of witnesses that provide supporting facts for the intentional torts or discrimination that you are claiming.  [emphasis added]

TIMING IS EVERYTHING

The significance of bringing this motion well before trial is two-fold. The first reason, and the most obvious, is that you can actually succeed and obtain financial information in preparation for trial. The second reason, which is less obvious but just as significant, is that bringing this motion early places you in a better position once you do get to the punitive phase of your trial. As we have found time and again, just having brought the motion, even when it is denied, you have placed yourself and your client in the best possible position for seeking and getting a reasonable continuance at trial prior to the punitive phase to obtain the records you were denied by way of this motion. Judges will tend to be more willing to place a trial, and thus a jury, “on hold” for a reasonable amount of time to permit discovery of financial records upon knowing that an effort to obtain the records had been made during discovery and denied.

Finally, we are sure that many plaintiffs’ attorneys have had the experience where the defendant produces a less than well-informed PMK at the punitive phase in response to the trial subpoena. A successful motion made during the discovery phase will keep this tactic on the part of the defense from being as effective. The financial records produced can be used to get the necessary information you need from the witness and make the defendant look ill prepared, further angering the jury. This is much harder to do if you have failed to seek those records through discovery. We make it our practice to bring this kind of motion whenever we believe we have sufficient facts to lead a jury to find malice and thus award punitive damages. So far, we have been successful.

Thus, the lesson to take away here is . . . bring that motion!

 

Even if you are not totally certain you will succeed, bring it! Even if you think the facts are not as strong as you would like them to be, bring it! The positives in bringing this type of motion far outweigh the negatives. You will be better prepared and better equipped to ask for and likely obtain a much larger punitive damage award when the time comes. And don’t we all want that kind of result!

You can find the full article in the April edition of Plaintiff Magazine.