Filed: Oct. 01, 2019
Latest Update: Oct. 01, 2019
Summary: ORDER GRANTING DEFENDANT'S MOTION TO COMPEL MENTAL AND PHYSICAL EXAMINATIONS PURSUANT TO FED. R. CIV. P. 35 THOMAS S. ZILLY , District Judge . THIS MATTER having been before the Court upon Defendant's Motion to Compel Mental and Physical Examinations Pursuant to Fed. R. Civ. P. 35, docket no. 22, the Court having reviewed the records and the files herein, including the motion and supporting declaration, response and supporting materials, reply and supporting materials, and the pleadings and
Summary: ORDER GRANTING DEFENDANT'S MOTION TO COMPEL MENTAL AND PHYSICAL EXAMINATIONS PURSUANT TO FED. R. CIV. P. 35 THOMAS S. ZILLY , District Judge . THIS MATTER having been before the Court upon Defendant's Motion to Compel Mental and Physical Examinations Pursuant to Fed. R. Civ. P. 35, docket no. 22, the Court having reviewed the records and the files herein, including the motion and supporting declaration, response and supporting materials, reply and supporting materials, and the pleadings and ..
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ORDER GRANTING DEFENDANT'S MOTION TO COMPEL MENTAL AND PHYSICAL EXAMINATIONS PURSUANT TO FED. R. CIV. P. 35
THOMAS S. ZILLY, District Judge.
THIS MATTER having been before the Court upon Defendant's Motion to Compel Mental and Physical Examinations Pursuant to Fed. R. Civ. P. 35, docket no. 22, the Court having reviewed the records and the files herein, including the motion and supporting declaration, response and supporting materials, reply and supporting materials, and the pleadings and records on file herein; and the Court deeming itself fully advised; now therefore it is hereby ORDERED that Defendant's Motion is GRANTED as follows:
1. Dr. Elizabeth Ziegler is permitted to perform a neuropsychological interview and examination of Plaintiff George Spengler as part of his Fed. R. Civ. P. 35 mental (neuropsychological) examination associated with this lawsuit, with the following restrictions:
a. The examination will be done in Everett, Washington on or before October 31, 2019, at a mutually agreeable date and time.
b. Plaintiff will appear at the examination and submit to the examination as set forth herein without cost to the Plaintiff.
c. The Defendant shall be responsible for providing to Dr. Ziegler any background materials that she may rely upon in conducting her examination and this information shall be provided to Plaintiff.
d. The examination shall last no longer than 6 hours with necessary breaks (restroom, coffee, etc.). If desired, Plaintiff can arrange to have the examination scheduled to take place over two half days (3 hours each, with breaks) instead of one full day.
e. In the event that any problems arise during the course of the examination, Dr. Ziegler will attempt to contact both attorneys for Plaintiff and Defendant in an effort to promptly resolve any such disputes.
f. Dr. Ziegler will provide a list of her entire proposed collection of neuropsychological tests she proposes to give to Plaintiff at least one week in advance of testing and will only select tests included in this list for her exam.
g. The scope of the examination shall be a forensic neuropsychological examination of the Plaintiff, consisting of an interview and standard neuropsychological tests and assessments. Dr. Ziegler will not be performing a problem-focused physical examination. No x-rays, MRI's, CT scans, nor any other invasive procedures are permitted.
h. Plaintiff shall not complete any medical history forms, pain diagrams, or intake forms related to the examination. Plaintiff shall complete testing forms provided by the examiner, if any.
i. Upon request, Defendant will provide to Plaintiff's expert, Dr. Vandenbelt, a complete copy of Dr. Ziegler's file and all raw MMPI testing data (if any), including her entire written report, within thirty (30) days of the completion of the examination.
j. Counsel for Defendant shall send a copy of the report, together with a copy of all notes taken by the examiner, with the exception of raw testing data, to Plaintiff's counsel within five (5) business days after receipt by defense counsel.
k. The report of the examiner shall be detailed and set forth separately all information the examiner has reviewed and relied upon to render opinions in this case; and this shall include, but not be limited to, all of the medical information in this case and any and all research and studies on which she may rely and all:
i. The examiner's findings;
ii. The results of all tests given;
iii. The examiner's diagnoses; and
iv. The examiner's conclusions and all facts and information reviewed and relied upon to support each opinion.
l. Dr. Ziegler agrees to appear for deposition at a time and place in the Seattle area and agrees that $500 per hour is a reasonable hourly rate for time spent during the deposition for billing by her to Plaintiff's lawyer for her deposition time, and that the expert fee for the deposition shall start when she is sworn in and the deposition starts and billing shall stop accruing when questioning ends at the deposition. There shall be no prepayment requirements or minimum charges. Plaintiff's counsel agrees to pay Dr. Ziegler's bill within 14 days.
m. No person, other than Dr. Ziegler, shall participate in any way in the examination and evaluation in this case (except her administrative/technical staff).
n. Defendant's attorneys shall be responsible for providing a copy of this Order to Dr. Ziegler, at least twenty-four (24) hours before the scheduled examination.
o. Unless otherwise ordered by the Court, this examination shall constitute Defendant's single neuropsychological Fed. R. Civ. Pro 35 testing of Plaintiff for this litigation by Defendant and Defendant shall have one other FRCP 35 examination regarding Plaintiff's claimed orthopedic injuries, for which the parties shall enter a separate Stipulation and Order.
2. Dr. John Burns is permitted to perform a physical interview and examination of Plaintiff George Spengler as part of his Fed. R. Civ. P. 35 physical (orthopedic) examination associated with this lawsuit, with the following restrictions:
a. The examination will be done in Seattle, Washington on or before October 31, 2019 at a mutually agreeable date and time.
b. Defendant shall be responsible for providing to Dr. Burns any background materials that he may rely upon in conducting his examination and this information shall be provided to Plaintiff.
c. The examination shall last no longer than 2 hours with necessary breaks (restroom, coffee, lunch, etc.).
d. In the event that any problems arise during the course of the examination, Dr. Burns will attempt to contact both attorneys for Plaintiff and Defendant in an effort to promptly resolve any such disputes.
e. The scope of the examination and questions shall include obtaining a medical history, performing a records review of all records and opinions in this case and performing a problem-focused physical examination. No x-rays, MRI's, CT scans, nor any invasive procedures or tests are permitted.
f. The examiner shall submit the entire written report within thirty (30) days of the completion of the examination.
g. Counsel for Defendant shall send a copy of the report, together with a copy of all notes taken by the examiner, to Plaintiff's counsel within five (5) business days after receipt by Defendant's counsel.
h. Unless otherwise ordered by the Court, this examination shall constitute Defendant's single physical Fed. R. Civ. P. 35 examination of Plaintiff for this litigation by Defendant.
i. The examiner shall limit questions during this examination to facts which are relevant to the Plaintiff's physical exam and prognosis.
j. The report of the examiner shall be detailed and set forth separately all information the examiner has reviewed and relied upon to render opinions in this case; and this shall be limited to the medical information in this case and/or any/all research and studies on which he may rely, all of which shall be stated in his report along with:
i. The examiner's findings;
ii. The results of all tests given;
iii. The examiner's diagnoses; and
iv. The examiner's conclusions and all facts and information reviewed and relied upon to support each opinion.
k. Plaintiff shall not complete any written forms related to the examination.
l. Defendant's attorneys shall be responsible for providing a copy of this Order to Dr. Burns at least twenty-four (24) hours before the scheduled examination.
m. Defendant and Defendant's attorney shall keep the doctor's reports confidential except for purposes of this case.
n. Dr. Burns agrees to appear for deposition at a mutually agreeable time and place in the Seattle area. The parties understand that Dr. Burns charges $900 per hour for his deposition, but Plaintiff does not necessarily agree that this is a reasonable hourly rate for time spent to take his deposition. This issue may be explored further at a later date. The expert fee for the deposition shall start when the deposition begins and shall stop accruing when questioning at the deposition ends. A true and correct copy of Dr. Burns' fee schedule is attached hereto as Exhibit A. Plaintiff's counsel agrees to pay Dr. Burns' bill within 14 days once they agree on what is a reasonable hourly rate for deposition in this case.
3. Plaintiff is prohibited from having any third-party observer attend either the mental (neuropsychological) examination with Dr. Ziegler or the physical (orthopedic) examination with Dr. Burns. The Plaintiff may have a third-party nearby (but not in the exam room), and may visit with that person on breaks.
4. Plaintiff is prohibited from recording (video or audio) either the mental (neuropsychological) examination with Dr. Ziegler or the physical (orthopedic) examination with Dr. Burns.
