Kennedy v. Superior Court

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has the right to depose the examining physician in spite of the fact that the party requesting the examination has withdrawn the physician as an expert witness and redesignated him or her as a "consultant."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…