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Kennedy v. Superior Court of Marin County6/8/1998
CERTIFIED FOR PUBLICATION
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has the right to depose the examining physician in spite of the fact that the party requesting the examination has withdrawn the physician as an expert witness and redesignated him or her as a "consultant."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 under pursuant to Code of Civil Procedure 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 Lucky also canceled the deposition of the examining doctor, on the ground that he had been withdrawn as an expert and designated a defense "consultant."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.
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 .
On March 25, 1997, petitioner submitted to the examination. According to the declaration of a registered nurse who was present, Dr. Weil made notes while he was examining petitioner.
On April 25, 1997, petitioner's counsel sent a letter to Lucky's attorney requesting a copy of Dr. Weil's report of the medical examination, per section 2032, subdivision (h). Petitioner's counsel received no response.
On September 18, 1997, Lucky designated Dr. Weil as an expert. On September 25, 1997, petitioner's counsel made a second written demand for his examination report. This second demand went unanswered.
Petitioner's counsel then spoke to Lucky's attorney by telephone, and was told that Dr. Weil had made no report of the examination. Petitioner's counsel responded that by the specific language of the statute, Dr. Weil was required to generate a report if none existed.
The issue was not resolved.
Petitioner's counsel then noticed Dr. Weil's deposition for Monday, October 20, in the doctor's San Francisco office. On Friday, October 17, Lucky's attorney called petitioner's counsel at 3:30 p.m., and asked if she still intended to depose the doctor. She replied in the affirmative.
At 5:00 p.m. that day, petitioner's counsel's office received a fax from Lucky's attorney stating, in its entirety, "Be advised that defendant LUCKY STORES, INC. hereby withdraws Randall Weil, M.D. as an expert." The fax does not indicate that the deposition would be canceled.
Petitioner's counsel arrived at Dr. Weil's office on Monday, October 20, and was told by the doctor's secretary that Lucky's attorney had canceled the deposition. The doctor refused to speak to petitioner's counsel, who in turn called Lucky's attorney from the doctor's office. Lucky's attorney indicated petitioner was not entitled to take Weil's deposition because he had been withdrawn as an expert. The attorney also rejected a third written request f
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