Kennedy v. Superior Court

75 Cal.Rptr.2d 373 (1998) 64 Cal.App.4th 674 Elizabeth KENNEDY, Petitioner,

v.

The SUPERIOR COURT of Marin County, Respondent;

LUCKY STORES, INC., Real Party in Interest.

No. A081100. Court of Appeal, First District, Division Five.

June 8, 1998. Review Denied September 2, 1998. Peter B. Brekhus, Brekhus, Williams, Wester & Hall, Greenbrae, for Petitioner.

Daniel F. Crowley, Cheryl P. Martinsen, Lanahan & Reilley, Santa Rosa, for Real Party in Interest.

HANING, Associate Justice.

In this case we hold that a party who submits to a medical examination pursuant to Code of Civil Procedure section 2032, subdivision (c), is entitled to a report of that examination on demand even if the examining physician has not prepared one. We further hold that a party who has submitted to such an examination has the right to depose the examining physician in spite of the fact that the party requesting the examination has withdrawn the physician as an expert witness and redesignated him or her as a "consultant."

Petitioner Elizabeth Kennedy is plaintiff in a personal injury action against real party in interest Lucky Stores, Inc. (Lucky). Petitioner slipped and fell in a Lucky store and was injured, and apparently required plastic surgery as a result. Lucky demanded that petitioner submit to a medical examination pursuant to Code of Civil Procedure[1] section 2032, subdivision (c). Petitioner complied. She then demanded a report of the examination, to which she was entitled under section 2032, subdivision (h). Lucky refused, claiming the examining physician had not prepared a report. Lucky also canceled the deposition of the examining doctor, on the ground that he had been withdrawn as an expert and designated a defense "consultant." Petitioner filed a motion to compel Lucky to produce a doctor's report of the examination, and to produce the examining doctor for deposition. The motion was denied. Petitioner seeks writ review.

[374] FACTS

In February 1997, about nine months after petitioner filed her complaint, Lucky demanded that petitioner appear for a medical examination by Dr. Randall Weil, a San Francisco plastic surgeon.