Marvin Simmons v. Semisi Siokatame Tupou, et al.

superseded by statute on other grounds as stated in Albertson v. Superior Court (2001) 25

Cal.4th 796, 804-08.)

With respect to distance, section 2032.320, subdivision (e), provides:

(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:

(1) The court determines that there is good cause for the travel involved.

(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.

4 The Court finds that the moving party has complied with its meet-and-confer obligation.

VI. EXPLANATION OF THE COURT’S RULING

A. Parties’ Positions

Defendant contends that Plaintiff alleges he suffered substantial orthopedic and spinal

injuries, bilateral knee complaints, radiating pain, numbness, and tingling, and requires ongoing

pain management treatment, including injections, medical branch blocks, and ablations. Plaintiff

claims to suffer from ongoing symptoms and to need future medical care. (Lim Decl. ¶ 3 and

Exh. B.)

At the time of the accident, Plaintiff resided in Ontario, California. At the time of the suit

and currently, Plaintiff lives in Ellicott City, Maryland, relocating in December 2022. (Lim Decl.

¶ 4.)

Defendant Tupou asserts that to evaluate Plaintiff’s claimed injuries, Defendant Tupou

retained Jeffrey C. Wang, M.D., to conduct an IME. Wang is a California-based board-certified

orthopedic surgeon, specializing in spine surgery. (Lim Decl. ¶ 6.)

On February 23, 2026, Defendant Tupou served an amended demand for IME for

Plaintiff, scheduling the IME with Dr. Wang for April 3, 2026, in Arcadia, California, describing

the procedures to occur. The examination’s location is within 75 miles of the San Bernardino

County courthouse where trial is scheduled. (Lim Decl. ¶¶ 7-8 and Exh. D.) On February 26,

2026, Plaintiff objected, asserting the examination should occur in Maryland and objecting to the

location of the examination. (Lim Decl. ¶¶ 9 and Exh. E.)

As part of Defendant’s meet and confer, he offered to advance Plaintiff’s reasonable

travel, lodging, and meal expenses for the IME. (Lim Decl. ¶ 10 and Exh. F.) Defendant

thereafter re-noticed the IME with Dr. Wang for July 14, 2026. (Lim Decl. Exh. G.)

In opposition, Plaintiff does not dispute that Defendant Tupou is entitled to conduct an

IME. He contends that Defendant has not shown good cause for compelling an examination

across the country and does not explain why Defendant cannot retain an orthopedic doctor closer

to Plaintiff’s Maryland residence. He contends that despite knowing that Plaintiff lives in

Maryland, Defendant retained Dr. Wang, located in California, to conduct the physical exam.

Plaintiff contends that on November 10, 2025, defense counsel first noticed the physical exam

with Dr. Wang and at that time Plaintiff objected. Three months later, defense counsel served an

amended notice for an IME with Dr. Wang, and Plaintiff again objected to the location. (Curry

Decl. ¶¶ 7-8.)

Plaintiff points out that with Defendant’s second notice, the exam is noticed to take place

at 1450 San Pablo Street in Los Angeles, even though the motion argues the exam is scheduled

to occur in Arcadia. Nonetheless, Plaintiff has objected because the location is more than 75

miles from Plaintiff’s current residence. (Curry Decl. ¶ 9.)

Plaintiff contends that he is 68 years old and has ongoing injuries from the accident that

cause pain and stiffness in his lower back. He asserts that it would be burdensome, unreasonable,

and substantially inconvenient to request he travel on a flight across the country for an

examination that can be conducted within 75 miles of his residence or through tele-medicine. He

asserts that this examination will require him to take a six-hour direct flight to LAX and then fly

home, and will take at least 3 days. (Curry Decl. ¶¶ 10-11.)

In reply, Defendant Tupou argues that Plaintiff does not contest the taking of an IME, it

is just the location at issue. He argues that Plaintiff does not offer any evidence that a

telemedicine examination is sufficient and asserts that under section 2032.220, he is entitled to

take Plaintiff’s in-person medical exam. He also argues that neither Plaintiff nor any medical

professional has submitted evidence in support of Plaintiff’s claim that his age and ongoing

injuries make compelling him to return to California “burdensome” and “unreasonable.” He also

contends that Plaintiff resided in Ontario at the time of the incident and availed himself of this

Court’s jurisdiction by filing the action in San Bernardino County. Finally, he argues that if trial

proceeds, Plaintiff will be required to travel to California. Defendant again raises the issue that

he has agreed to cover all reasonable travel expenses, arguing the only burden on Plaintiff is his

travel to/from California.

Defendant Tupou claims it is inequitable and unduly burdensome to require Defendant to

retain an expert in Maryland and incur the costs for the expert to attend trial in California.

B. Why the Motion Should Be Denied

Defendant’s reply does not address the issue that in the second amended notice, the

location of the examination with Dr. Wang is at an address in Los Angeles, as opposed to

Arcadia.

Nonetheless, the main issue of contention is whether good cause is demonstrated to

require Plaintiff to travel to California for the examination given Plaintiff lives in Maryland and

has lived there since before the action was filed. Defendant Tupou first sought to conduct

Plaintiff’s IME with a notice served in November 2025, to which Plaintiff objected in December

2025. (Lim Decl. ¶ 7.) It was not until May 29, 2026, with a trial date of September 22, 2026,

that Defendant filed his motion to compel Plaintiff to appear in California for an IME with Dr.

Wang.

In support of compelling Plaintiff’s travel, Defendant cites cases from Florida and the

federal district court in the Southern District of New York. In opposition, Plaintiff relies on

Hansen v. Workers’ Compensation Appeal Board (1989) 211 Cal.App.3d 717, 719-20, in which

at issue was the Board’s order requiring an employee to appear for an examination more than

185 miles from the employee’s residence, after concluding Labor Code sections 4050 and 4051

applied to the location of the examination, not Code of Civil Procedure section 2032 [now

section 2032.320]. The Board found the employee had not shown he was physically unable to

attend the examination or that doing so was a substantial inconvenience. (Id. at p. 721.) While

the Court discussed it need not decide the applicability of section 2032, it noted it is indicative of

legislative intent to limit the distance for medical examination in civil cases to 75 miles, noting

the distance requirement is a similar relevant factor in Labor Code section 4051. (Ibid.) The

Court concluded that ordering the employee with a claimed industrial heart condition to appear

for a medical examination 185 miles from his home when there were physicians available within

75 miles of the employee’s residence was an abuse of discretion. It concluded that under the

facts, the 185-mile trip was unwarranted and unreasonable. (Id. at pp. 721-22.)

Again, here there is no dispute that Defendant Tupou is entitled to at least one physical

examination. Defendant is correct that the accident occurred in San Bernardino County and the

trial will occur here too. Defendant also correctly points out that Plaintiff has not presented any

evidence that traveling across the country would be burdensome, unreasonable, or substantially

inconvenient to him. But in these circumstances, it is the party seeking an IME — here,

Defendant — who bears the burden of establishing good cause that the examination cannot be

held within 75 miles of Plaintiff’s residence. Code of Civil Procedure section 2032.320 enforces

a strict 75-mile distance limitation from an examinee’s residence, providing no special

exceptions for plaintiffs who reside out of state

To succeed on this motion, Defendant must establish good cause and explain why he

cannot find a suitable expert located within 75 miles of Plaintiff’s Maryland residence who is

able to appear for trial here in California, or an expert, including Dr. Wang, willing to travel to

Maryland to conduct the examination.

VII. CONCLUSION

Given Defendant has not carried its burden of proving good cause to require Plaintiff to

travel to California for Dr. Wang to conduct an IME, the Court DENIES the motion.

In the interest of fairness, the Court ORDERS that Plaintiff shall not meet in person with

any expert in this litigation, including his own, if it involves travel of more than 75 miles from

his residence, unless Plaintiff is willing to undergo the IME at issue in this motion.

Finally, the Court will entertain a defense motion to permit a limited IME within 75 miles

of the courthouse immediately prior to trial, when Plaintiff must travel to San Bernardino County

anyway.

IT IS SO ORDERED.

Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court