Opinion
DANIEL C. CEDERBORG, County Counsel, MICHAEL R. LINDEN, Deputy County Counsel, FRESNO COUNTY COUNSEL, Fresno, California, Attorneys for Defendants, COUNTY OF FRESNO and TRACY SINK.
LAW OFFICE OF JACOB WEISBERG, Jacob Weisberg, Attorney for Plaintiff.
STIPULATION FOR RULE 35 PHYSICAL EXAMINATION; ORDER
STANLEY A. BOONE, Magistrate Judge.
Defendants COUNTY OF FRESNO and TRACY SINK (hereinafter "Defendants"), and plaintiff RICHARD BERMAN (hereinafter "Plaintiff") hereby submit the following Stipulation for an order requiring Plaintiff to submit to a physical examination, pursuant to Rule 35 of the Federal Rules of Civil Procedure (hereinafter "Rule 35").
RECITALS
WHEREAS, on March 26, 2013, Plaintiff filed his complaint in the Fresno County Superior Court, alleging physical injuries resulting from an incident on March 13, 2012, when he was arrested in the lobby of the Fresno County Superior Court. Plaintiff alleges that when he was arrested by defendant Deputy Tracy Sink, he told her that "he was recovering from a recent, serious spinal surgery, " and that as a result of the incident, he "injured his back, neck, arm and stomach/groin area." Complaint, para. 15.
WHEREAS, on April 23, 2013, Defendants removed Plaintiff's action to this Court. Doc. Nos. 1-5. Under the operative scheduling order, the non-expert discovery cut-off date is April 3, 2015. Doc. No. 34.
WHEREAS, counsel for the parties have conferred with respect to Defendants' desire to have Plaintiff submit to a physical examination pursuant to Rule 35. Plaintiff has no objection to submitting to such an examination, so long as he is allowed to record the proceedings by either video and/or audio sound recording.
WHEREAS, under Rule 35, the court may order a party whose physical condition is in controversy to submit to a physical examination "by a suitably licensed or certified examiner." Fed. R. Civ. P. 35, subd. (a)(1). For the proposed physical examination, Defendants will retain Donald R. Heune, M.D., 201 N. Valeria Street, Fresno, CA 93701. Dr. Heune is a licensed physician who specializes in orthopedic surgery. Dr. Heune will examine Plaintiff concerning the nature and extent of his alleged injuries, including the effect that the subject arrest may have had on Plaintiff's recovery from his spinal surgery, and will question Plaintiff only with respect to the issues set forth in this paragraph. An appointment has tentatively been scheduled for February 2, 2015, at 2:00 p.m.; however, the parties may change the date of the appointment if necessary.
WHEREAS, under subdivision (a)(2)(A) of Rule 35, it states that an order "may be made only on motion for good cause and on notice to all parties and the person to be examined." Based on this subdivision, on December 30, 2014, Defendants filed a Rule 35 motion. Doc. Nos. 35-37. As Plaintiff previously agreed to submit to a Rule 35 examination, he did not oppose this motion. However, on January 22, 2015, the Court denied the motion without prejudice because there was no showing that the parties attempted to meet and confer about the matter, as required by the Local Rules. Doc. No. 39.
STIPULATION
Now, therefore, IT IS HEREBY STIPULATED AND AGREED, by and between the parties, through their respective attorneys of record that good cause exists to have Plaintiff submit for a Rule 35 examination, and that Plaintiff will submit to such an examination at a day and time mutually agreeable between the parties, and on the conditions set out in the recitals.
IT IS SO STIPULATED.
IT IS SO ORDERED.